Transpersonnel, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 484 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 484
Transpersonnel, Inc. and General Drivers, Ware-
housemen and Helpers, Local 28, affiliated with
International Brotherhood of Teamsters, AFL–
CIO, CLC. Case 11–CA–17507
September 28, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On May 27, 1998, Administrative Law Judge Pargen
Robertson issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and brief and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt the recommended Order as modified and set
forth in full and below.
The key issue in this case is whether the Respondent’s
withdrawal of recognition from the Union was lawful.
The judge found, and we agree, that the Respondent
unlawfully withdrew recognition from the Union on May
9, 1997. We agree with the judge that the Respondent
failed to establish that it had a good-faith reasonable un-
certainty regarding the Union’s majority status.
1. The Respondent excepts, inter alia, to the judge’s
finding of violations arising from a Respondent-called
meeting for permanent replacement employees on April
6, 1997.2 A brief recitation of the facts surrounding that
meeting is in order. On April 6, on his way into the
meeting, Respondent’s eastern regional manager, Tho-
mas Husvar, met employee Raymond Wray. Wray told
Husvar that he did not want union representation and did
not think other drivers did either. Wray then asked Hus-
var what Wray could do, and Husvar told him to ask
questions during the meeting. At the meeting, attended
by seven other employees, Wray asked what the employ-
ees could do to get rid of union representation. Husvar
advised them that he needed some proof of their feelings
in the form of a note or document. Thereafter, the eight
employees signed a note stating “no union.” At a break
in the meeting, the eight employees presented the note to
Beth Burrell, a management representative who also at-
tended the meeting.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 On February 2, 1997, certain of the Respondent’s employees went
on strike. That strike was continuing on April 6, 1997.
The judge found that Husvar, by his conduct at the
meeting, unlawfully solicited employees to sign state-
ments saying they did not want union representation.
Accordingly, the judge concluded that seven of the eight
expressions of antiunion sentiment (i.e., excluding that of
employee Wray who expressed his sentiments before the
meeting)3 were tainted and could not support the Re-
spondent’s contention of a reasonable uncertainty regard-
ing the Union’s majority status.
In its exception to this particular 8(a)(1) violation, the
Respondent argues that the judge’s finding violated its
right to due process. The Respondent submits that the
complaint did not allege that it engaged in unlawful so-
licitation at the April 6 meeting. Thus, according to the
Respondent, the variance between the complaint’s allega-
tions and the judge’s findings are prejudicial, and the
judge’s findings should not be upheld. The Respondent
further argues that the violation found was not fully and
fairly litigated at the hearing. It relies on the failure to
allege the violation in the complaint, as well as the Gen-
eral Counsel’s failure to mention the alleged violation in
his opening statement or move to conform the complaint
to the evidence after testimony by Husvar concerning the
April 6 meeting. In these circumstances, the Respondent
argues, it was denied fair notice and an opportunity at the
hearing to offer a defense to the unalleged violation.
Consequently, the Respondent contends that it was privi-
leged to rely on the expressions of union rejection from
all the employees at the April 6 meeting.4 We find no
merit in the Respondent’s contentions.
The complaint alleged that the Respondent unlawfully
solicited employees on multiple occasions to reject union
representation. It did not specifically allege a violation
based on the April 6 meeting. However, the issue pre-
sented by Husvar’s April 6 statements was fully and
fairly litigated at the hearing. As we stated recently in
Letter Carriers Local 3825, 333 NLRB 343 (2001):

It is well settled that the Board may find and remedy
a violation even in the absence of a specified allega-
tion in the complaint if the issue is closely connected
to the subject matter of the complaint and has been
3 The judge found, and no party excepts, that the Respondent re-
ceived valid, untainted statements rejecting union representation from
employee Wray as well as from employees Dean Hefner and Franklin
Harris. Hefner and Harris began working for the Respondent at some
point after April 6 and thus they did not attend the April 6 meeting.
4 On brief to the Board, the Respondent notes that it did not rely, for
its May 9 withdrawal of recognition, on employee Johnny Blackburn’s
signing of the antiunion note at the April 6 meeting. The Respondent
concedes that Blackburn had left its employ by May 9, 1997.
336 NLRB No. 39
TRANSPERSONNEL, INC. 485
fully litigated. This rule has been applied with par-
ticular force where the finding of a violation is
established by the testimonial admissions of the Re-
spondent’s own witnesses.5

The facts presented at hearing meet these standards.
The complaint alleged, and the judge found, that the Re-
spondent unlawfully solicited employees to sign state-
ments stating that they did not want union representa-
tion.6 The April 6 violation involves another solicitation
occurring in the same time period. Husvar testified on
direct examination by the Respondent’s counsel to the
facts surrounding the April 6 meeting. The Respondent’s
counsel examined Husvar on the nature, content, and
context of his statements, and fully briefed the lawful-
ness of the statements to the judge. Husvar’s testimony
was unrefuted by any witness and was credited by the
judge. As the Respondent’s own lead witness, a high-
ranking official of the Respondent, undisputedly con-
firmed the unlawful conduct, and as the lawfulness of the
conduct was fully briefed to the judge, we find that the
matter was fully and fairly litigated. Accordingly, we
affirm the judge’s finding that Husvar’s actions violated
Section 8(a)(1) of the Act and that the April 6 employee
expressions rejecting union representation, except for
that of employee Wray, were tainted and invalid.
2. The Respondent further excepts to the judge’s find-
ing that it violated Section 8(a)(5) of the Act by its May
9, 1997 withdrawal of recognition of the Union. Even if
we had accepted the Respondent’s arguments and found
that the April 6 employee note contained valid and un-
tainted rejections of union representation, we would nev-
ertheless conclude that the Respondent has not estab-
lished that it had a good-faith reasonable uncertainty of
the Union’s continued majority status under Allentown
Mack Sales & Service v. NLRB, 522 U.S. 359 (1998).7

5 Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990). See also Meisner Electric, Inc., 316 NLRB
597 (1995).
6 The judge found, and we agree, that, at times other than the April 6
meeting, the Respondent unlawfully solicited employees Bradford
Forkey, Grant Crow, and Johnny Emerson to reject union representa-
tion.
7 While this case was pending, the Board issued Levitz, 333 NLRB
717 (2001), in which the Board “reconsider[ed] whether, and under
what circumstances, an employer may lawfully withdraw recognition
unilaterally from an incumbent union.” In Levitz, the Board overruled
Celanese Corp., 95 NLRB 664 (1951), and its progeny, insofar as they
permitted an employer to withdraw recognition from an incumbent
union on the basis of a good-faith doubt of the union’s majority status.
The Levitz Board held that “an employer may unilaterally withdraw
recognition from an incumbent union only where the union has actually
lost the support of the majority of the bargaining unit employees.”
However, the Board also held that its analysis and conclusions in the
case would only be applied prospectively; “all pending cases involving
According to the Respondent, it received, by May 9,
1997, valid disavowals of union support from 12 unit
employees. The Respondent contends that the unit con-
sisted of fewer than 24 employees. According to the
Respondent, it had, as of May 9, valid disavowals of the
Union from seven employees attending the April 6 meet-
ing (i.e., excluding Blackburn, who had left its employ),
plus the statements of employees Frank Harris and Dean
Hefner, which the judge found were untainted. The Re-
spondent also claims that, contrary to the judge’s finding,
the antiunion expressions of sentiment from employees
Bradford Forkey, Johnny Emerson, and Grant Crow were
valid and untainted.
The judge concluded that, as of May 9, 1997, when the
Respondent withdrew recognition, the Respondent had at
least 118 unit employees who were actively expressing
their support for the Union by engaging in a strike. The
Respondent contends that only nine unit employees were
active strikers. The Respondent disputes the judge’s
finding that Merl C. Davidson and Earl Dople were strik-
ing employees.
In regard to Davidson, the Respondent submits that he
was a probationary employee and that the judge erred in
finding that he supported the strike. The Respondent
contends that it was “unable to confirm” that Davidson
supported the strike and it therefore presumed that he had
quit his employment. We reject the Respondent’s argu-
ment. The judge found, and we agree, that the evidence,
including the testimony of Union Agent Richard Max-
well, established that Davidson supported the Union. In
any event, Davidson is presumed to support union repre-
sentation absent a contrary expression of sentiment.
Thus, assuming that that the Respondent was “unable to
confirm” that Davidson supported the strike, this fact
would fail to establish that Respondent had any reason-
able uncertainty regarding Davidson’s status. Similarly,
the fact that Davidson was a probationary employee has

withdrawals of recognition [will be decided] under existing law: the
‘good faith uncertainty’ standard as explicated by the Supreme Court”
in Allentown Mack.
8 The judge found that these included Merl C. Davidson, Vernon
Payden, James Prater, Bobby Rice, Gary Scott, Frank Sellars, Jimmy
Snyder, Bernard Swenson, Clyde Whitaker, William Wilkins, and Earl
“Dale.” The Respondent notes that Earl “Dale” is in fact Earl Dople.
The judge did not resolve the status of one additional employee—Jerry
McDaniel—but left for compliance a determination on whether he was
a striking employee. The Respondent contends that McDaniel was
unable to perform his job because of injury and should not be consid-
ered a striking employee. Solely for the purpose of resolving the with-
drawal of recognition issue before us, we shall assume, as asserted by
the Respondent, that McDaniel was not a striking employee. This does
not change the result reached in this case. Nor does it preclude the
General Counsel, at compliance, from seeking a remedy on behalf of
McDaniel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 486
no bearing on his status as a striking employee support-
ing the Union. Thus, we agree with the judge’s conclu-
sion regarding Davidson.
In regard to Dople, the Respondent argues that Dople
terminated his employment before February 2, 1997, and
therefore the judge erred in concluding that Dople was a
striking employee as of May 9, 1997. The Respondent
argues that Dople’s name should not have been included
on the union dues-checkoff list and that Dople was not
included among those who offered to return to work un-
conditionally. Because the record does not permit us to
resolve the issue of Dople’s status, we shall assume that
Respondent is correct regarding Dople and that Dople
left the Respondent’s employ before February 2, 1997.
Thus, for purposes of resolving the withdrawal of recog-
nition issue before us, we shall assume that Dople was
neither a striking employee nor a unit employee.9 Hav-
ing done this, we conclude that, as of May 9, 1997, 10
strikers, including Davidson, clearly indicated their sup-
port for the Union.
In addition, the judge found, and as noted we agree,
that the antiunion statements of three other employees
(Bradford Forkey, Grant Crow, and Johnny Emerson)
were tainted because the Respondent unlawfully solicited
these employees to reject union representation. These
three expressions of antiunion sentiment therefore cannot
be counted toward the tally of those employees express-
ing opposition to the Union. Therefore, at all times ma-
terial, the Union is presumed to have enjoyed the contin-
ued support of at least 13 employees in a unit of no more
than 23 employees.10 The Respondent had no reasonable
basis to question the union support of these 13 employ-
ees. The Respondent, at most, had valid expressions of
disaffection from nine unit employees.11 Therefore, the
Respondent failed to establish that, as of May 9, 1997, it
held a good-faith reasonable uncertainty regarding the
Union’s majority status. See Marion Memorial Hospital,
335 NLRB No. 80 (2001). Therefore, the Respondent

9 We do not preclude the General Counsel, at compliance, from ar-
guing that Dople is entitled to a remedy.
10 As we have assumed that Earl Dople was not in the unit, the unit
decreases to no more than 23 employees.
11 The Respondent also contends that it could reasonably rely on
employee Wray’s April 6 statement to Manager Husvar that Wray
believed that “other drivers” did not want union representation. How-
ever, Wray’s statement cannot establish the Respondent’s defense.
Certainly, in context, Wray was not speaking for the striking employ-
ees. Nor could Wray speak for employees hired after April 6 but before
May 9. Thus, at most, Wray’s comment lent some support that the other
employees attending the April 6 meeting did not support the Union. As
noted above, assuming that all the April 6 rejections of union represen-
tations were valid, the Respondent nonetheless has failed to show a
good-faith reasonable uncertainty.
was not privileged to withdraw recognition from the Un-
ion.12
Accordingly, we affirm the judge’s finding that the
Respondent violated Section 8(a)(1) and (5) when it
withdrew recognition from the Union.
3. For the reasons fully set forth in Caterair Interna-
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In the Vincent case, the court summa-
rized the court’s law as requiring that an affirmative bar-
gaining order “must be justified by a reasoned analysis
that includes an explicit balancing of three considera-
tions: (1) the employees’ § 7 rights; (2) whether other
purposes of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the viola-
tions of the Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation.
12 We would reach the same conclusion even if we agreed, which as
discussed above we do not, that Respondent was entitled to presume
that Davidson had quit. In that event, the Union would still presump-
tively enjoy the continued support of at least 12 employees in a unit of
no more than 22 employees, a clear majority.
TRANSPERSONNEL, INC. 487
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and the Respondent’s unfair labor practice was of a
continuing nature and was likely to have a continuing
effect, thereby tainting any employee disaffection from
the Union arising during that period or immediately
thereafter. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin-
ued union representation
For all of the foregoing reasons, we find that an af-
firmative bargaining order with its temporary decertifica-
tion bar is necessary to fully remedy the allegation in this
case.13
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent Transpersonnel, Inc., Spartanburg, South
Carolina, its officers, agents successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting its employees to sign statements stating
that they do not want union representation.
(b) Interrogating its employees about the employees’
desires regarding collective-bargaining representation.
(c) Refusing to recognize and bargain in good faith
with General Drivers, Warehousemen, and Helpers, Lo-

13 We shall modify the judge’s recommended Order to conform to
the violations found and the remedies imposed. We shall also modify
the judge’s recommended Order in accordance with our decisions in
Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container,
Inc., 325 NLRB 17 (1997). Finally, we shall further modify the judge’s
recommended Order in accordance with our decision in Ferguson Elec-
tric Co., 335 NLRB 142 (2001).
cal 28, affiliated with International Brotherhood of
Teamsters, AFL–CIO, CLC as the exclusive collective-
bargaining representative of its employees working at the
Kohler Company in Spartanburg, South Carolina.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of service of this Order, recognize
and, on demand by the Union, bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of the Respondent’s employees at the Kohler
Company in Spartanburg, South Carolina, with regard to
rates of pay, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody that understanding in a signed agree-
ment.
(b) Within 14 days from the date of this Order, offer to
those unfair labor practice strikers who unconditionally
offered to return to work full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(c) Make whole all employees affected by the Respon-
dent’s unlawful actions on and after May 9, 1997 for any
loss of earnings and other benefits suffered as a result of
the unlawful action, in the manner set forth in the remedy
section of the judge’s decision. Backpay is to be com-
puted on a quarterly basis as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Spartanburg, South Carolina, copies of the
attached notice marked Appendix.14 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s author-
14 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “Posted by Order of the National
Labor Relations Board’’ shall read “Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.’’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 488
ized representative, shall be posted by the Respondent
and maintained by it for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that those
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
removed its presence from the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since April 6, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT solicit our employees to sign state-
ments stating they do not want representation by General
Drivers, Warehousemen and Helpers, Local 28, affiliated
with International Brotherhood of Teamsters, AFL–CIO,
CLC or any other labor organization.
WE WILL NOT interrogate our employees concerning
their desire for or against union representation.
WE WILL NOT refuse to bargain with General Driv-
ers, Warehousemen and Helpers, Local 28, affiliated
with International Brotherhood of Teamsters, AFL–CIO,
CLC as collective-bargaining representative of our em-
ployees at the Kohler Company in Spartanburg, South
Carolina.
WE WILL NOT in any like or related manner, inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees working at the Kohler Company in Spartan-
burg, South Carolina.
WE WILL offer those unfair labor practice strikers
who unconditionally offered to return to work, full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole, with interest, all employees
affected by our unlawful actions on and after May 9,
1997, for any loss of earnings and other benefits suffered
as a result of our unlawful actions.

TRANSPERSONNEL, INC.

Jasper C. Brown Jr., Esq., for the General Counsel.
John G. Creech, Esq. and Glenn L. Spencer, Esq., of
Greenville, South Carolina, for the Respondent.
Richard L. Maxwell, of Taylors, South Carolina, for the Charg-
ing Party.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held on January 28 and 29, 1998, in Spartanburg,
South Carolina. Documents received in evidence show that the
charge was filed on May 19 and amended on July 1 and August
25, 1997. A complaint issued on August 29, 1997.
I. JURISDICTION
Respondent admitted that it is an Illinois corporation and an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the National Labor Relations Act (Act). Its east-
ern regional manager testified that it is a driver leasing division
of Manpower, Inc. In this instance Respondent leased drivers,
primarily long-term drivers, to Kohler. The drivers were sup-
plied to Kohler’s dispatch location.
II. LABOR ORGANIZATION
Respondent admitted that General Drivers, Warehousemen
and Helpers, Local 28, affiliated with International Brotherhood
of Teamsters, AFL–CIO, CLC (Union) is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
The complaint alleged that Respondent engaged in conduct
in violation of Section 8(a)(1); that employees at Spartanburg,
South Carolina, went out on strike and thereafter made uncon-
ditional offers to return to work; that the employees’ strike was
prolonged by Respondent’s unfair labor practices; and that
Respondent has unlawfully refused to recognize the Union in
violation of Section 8(a)(1), (3), and (5) of the Act.
TRANSPERSONNEL, INC. 489
A. The 8(a)(1) Allegations
1. Solicitation to sign statement disavowing the Union
a. Tom Husvar
Eastern Regional Manager Thomas Husvar testified about a
meeting Respondent held for striker replacement drivers on
April 6, 1997. As Husvar was walking into the meeting driver
Raymond Wray told him that he did not want union representa-
tion and that he did not believe the people wanted union repre-
sentation. Husvar told Wray to ask those questions during the
meeting. Raymond Wray asked during the meeting, what could
they do about union representation. Husvar told the employees
that it was their decision whether to have union representation
and that Transpersonnel could not encourage or discourage
them to have a union. Husvar told the employees that if they
did not want a union, Respondent would have to have some
proof of their feelings, a note or a document or something say-
ing that. Subsequently, at a break, an employee gave Manage-
ment Official Beth Burrell a note stating “no union.” Eight
employees had signed the note.
Bradford Forkey testified that he formerly worked for Re-
spondent as an over-the-road driver assigned to the Kohler
plant. Joanne Hurt interviewed Forkey at a motel in Spartan-
burg. The interview occurred about 5 days before he first re-
ported to work on April 13, 1997. At the end of the interview
Hurt told Forkey to report for work Sunday provided every-
thing checked out. Hurt said they were under a union strike and
she asked Forkey if he minded working under that circum-
stance. Forkey replied that he did not mind.
On the morning Forkey first reported to work, driver Frank
Patterson told him to see Eastern Regional Manager Tom Hus-
var. Patterson said “that Tom wanted to see me about signing a
paper.”
Husvar was in a car in the parking lot. Forkey walked to the
car and said that Frank had said Husvar wanted to see him
about signing a paper. Husvar told Forkey that he wanted
Forkey to sign a paper “about not belonging to the Union.” “Or,
wanting the Union representation.” Forkey agreed and wrote “I
Bradford Forkey does not want to work under the representa-
tion of a union.”
Thomas Husvar testified that he was present when Forkey
and other new drivers first met at the Ryder shop to start work
for Respondent on April 13. The Ryder shop was the home
base where tractors are domiciled for the Kohler operation.
Husvar testified that Forkey came over to him and said, “Frank
says I need to talk to you. I need to sign something.” Huvar
asked what was Frank talking about. Forkey replied that
“Frank’s talking about this Union situation.” Huvar asked if
Patterson had told Forkey what was taking place, about the
meeting last week and that the drivers had signed a petition not
to join the Union. Forkey replied, “No.” Huvar explained to
Forkey what had taken place. He told Forkey that he was a
permanent replacement, that Respondent was having a labor
dispute and he went over the history of bargaining and that
there were labor board charges against Respondent that had
been dismissed or were pending. Forkey said that he had his fill
of unions and did not want to be a member of the Union.
Forkey said that he would sign a statement. Huvar said that he
did not have to do that then but could think about it. Forkey
said that he would do it then. Forkey signed something and
handed it to Huvar.
(1) Findings
(a) Credibility
I was impressed with the demeanor of Bradford Forkey. He
was under subpoena to testify on behalf of General Counsel.
Forkey’s testimony regarding his April 13 conversation with
Thomas Husvar illustrated a firm recollection of that event. He
specifically denied that Husvar said anything about the history
of the labor dispute with the Union. Instead, he recalled that
Joanne Hurt had mentioned that during his initial interview.
On the other hand I was not impressed with Husvar’s testi-
mony. His testimony was to the effect that when Forkey came
to him in the parking lot on April 13, he gave Forkey the im-
pression that he was totally unaware of why Forkey had walked
over. However, Husvar admitted that he told Forkey about the
replacement drivers signing a petition not to join the Union.
According to Husvar, Forkey told him that Frank Patterson had
sent him to Husvar and had said that Forkey needed to sign
something. However, according to Husvar’s testimony nothing
was said to the effect that Forkey needed to sign something
showing that he did not want to be represented by the Union.
Instead, apparently after Husvar told Forkey about Respon-
dent’s dispute with the Union and the replacement’s employees
petition not to join the Union, Forkey volunteered to sign a
statement showing that he did not want union representation. I
find that scenario is improbable. It is difficult to accept that
Forkey deduced from the information Husvar testified he gave
to Forkey, that a statement declaring that he did not want union
representation was needed by Respondent.
In any event, due to the record and Husvar’s demeanor, I do
not credit his testimony to the extent it conflicts with credited
evidence.
To the extent there are conflicts, I credit the testimony of
Bradford Forkey and discredit the testimony of Thomas Husvar
and Joanne Hurt, which is in conflict with Forkey. I credit Hus-
var’s testimony regarding the April 6 meeting. That testimony
was not in dispute.
(b) Conclusions
The credited testimony shows that Thomas Husvar asked
Bradford Forkey to sign a paper about not wanting union repre-
sentation, on April 13, 1997. The credited testimony of Forkey
proved that he had said nothing before that time to show that he
did not want to be represented by the Union.
Thomas Husvar testified that among other things, he told re-
placement employees on April 6, that they were permanent
replacements; that if the employees did not want union repre-
sentation, Respondent would have to have some proof; and his
testimony showed that employees were permitted to circulate
and sign a “no union” statement during that meeting.
I find that Husvar solicited employees to sign statements
showing they did not want union representation. That conduct
tends to interfere with, coerce, and restrain employees in the
exercise of their rights under Section 7 of the National Labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 490
Relations Act (Act), and constitutes a violation of Section
8(a)(1) of the Act.
b. Joanne Hurt
Dean Hefner started working for Respondent in April 1997.
When Hefner first applied he asked if the job was union and
said that he would not work for a union. Hefner recalled that
either Joanne Hurt or Raymond Wray talked to him about the
Union shortly after he started working and asked him if he
would sign a statement that he did not want the Union. He
agreed saying that he didn’t want a union to begin with. He
recognized a note he signed on April 22, 1997, stating, “I Dean
cannot afford a union job and do not want one.” Hefner testi-
fied that he put the statement in an envelope addressed to
Joanne Hurt. Raymond Wray told him that the envelope would
be forwarded to Hurt.
Hefner admitted that he gave an affidavit in which he testi-
fied:

After I was hired and working, someone told me that if
I was not interested in working for a union would I just
leave a statement saying I wasn’t. I can’t be absolutely
certain but I believe this person who told me this was
Hurt, who has since quit the Company. No one coerced me
or forced me to sign the paper, attached hereto as Exhibit
A that I sent to Joann Hurt in Charlotte. I left it in an enve-
lope with my settlement sheets at Kohler in Spartanburg. I
wrote on the envelope to her attention. I did this within a
couple of days of the date I put on this paper. This oc-
curred probably the first week that I worked there.

Johnny Emerson testified that he was Dean Hefner’s driving
partner on the Kohler job for Respondent. He recalled a conver-
sation with Joanne Hurt within a month after he started working
for Respondent in May 1997. Dean Hefner told Emerson that
he had talked with Joanne Hurt on the phone and that she
wanted Emerson to phone her. Emerson phoned Hurt and she
told him that if it was his intention that he did not want to work
for a union, if he would write it down and send it to her. Emer-
son did that.
Joanne Hurt left Respondent in June 1997. She was an opera-
tions manager in charge of the Kohler account and she was
responsible for interviewing and hiring permanent replacements
for the employees that stuck on February 2, 1997. She made a
general statement to each person she interviewed. She said that
South Carolina was a right to work State and that there was a
strike going on but that some people had chosen to work. That
people coming to work would not lose their jobs and they were
permanent replacements. She made sure each applicant under-
stood there had been people that had decided to join the Union
and people that decided not to join the Union.
Hurt first talked to Dean Hefner about going to work on an-
other account other than Kohler. Hurt mentioned there were a
couple of people driving down from the Greensboro, North
Carolina area to go to work on the Kohler account. Hefner said
that he did not want anything to do with unions so Kohler
would be his last choice. Subsequently, Hefner told Hurt that he
would be interested in driving on their Kohler account. Hefner
also told Hurt that a friend of his, Johnny Emerson, was looking
for work and that he would like to team up in driving with Em-
erson. Hefner told Hurt that Emerson felt the same way he did
about unions (Tr. 197).
Joanne Hurt testified that she interviewed Hefner and Emer-
son. Emerson asked if they would be without benefits if the
strike was resolved and they did not join the Union. Hurt told
them it was a right to work State and their benefits would be the
same no matter whether you join the Union or not.
In regard to receipt of a statement from Emerson, Hurt testi-
fied:

Well, it was against the law for me to ask for a state-
ment. I never asked for a statement. There was a time
when they called in for their,[sic] you know, the drivers
called in every morning and talked to me. You know:
Where are you? What are you doing? How are things go-
ing? And at that point, Dean had said, “You know, we’re
trying to fax this thing over to you.” They were in a truck
stop. I said, “What thing are you trying.” You know. And
he said, “Well, this piece of paper. I asked Johnny for his
statement,” and I said, “Okay, fine. What’s wrong?” and
he said, “We can’t get the fax to work.” I said, “Fine,
whatever you’re trying to sent to me, stick in your stuff
and just mail it.”

Subsequently, during her testimony under redirect examina-
tion, Hurt testified that Hefner “gave me the general impression
that he had a statement about not wanting the Union that they
were trying to fax.”
Hurt recalled the statement from Emerson showed that he
was not interested in union representation. She testified that the
statement confirmed what Emerson had already told her during
his interview. Later Hurt was unable to find Emerson’s state-
ment and she asked him if he did not remember the statement.
(1) Findings
(a) Credibility
I was not impressed with the demeanor of Dean Hefner. He
demonstrated an inability or unwillingness to recall whether it
was Supervisor Hurt or employee Wray that asked him to sign a
statement that he did not want union representation. In a pre-
hearing affidavit Hefner was somewhat more positive in his
recollection although, even then, he stated that he was not abso-
lutely certain but believed that Joanne Hurt asked him to sign a
statement. I am also unable to credit the testimony of Joanne
Hurt. I was especially skeptical regarding her testimony about
talking to Dean Hefner about his attempt to fax a statement
from Johnny Emerson. According to Hurt’s testimony under
direct examination Hefner neither said nor did she inquire, as to
what the statement involved. However, on redirect examina-
tion, Hurt admitted that Hefner gave her the general impression
that Emerson’s statement dealt with his not wanting the Union.
I was impressed with Johnny Emerson’s demeanor. He testi-
fied under subpoena and is currently employed by Respondent.
Emerson admitted that he had told Dean Hefner how he felt
about the Union a considerable time before he started working
for Respondent.
TRANSPERSONNEL, INC. 491
(b) Conclusions
In view of my inability to credit the testimony of Dean
Hefner, I am unable to find that Joanne Hurt solicited Hefner to
disavow the Union.
The credited evidence did prove that Supervisor Hurt told
employee Johnny Emerson that if it was his intention to not
work for a union, he should write that down and send it to her.
Emerson testified that Joanne Hurt brought up the subject of the
Union during that phone conversation. I find that constitutes
solicitation to petition against union representation in violation
of Section 8(a)(1) of the Act.
2. Interrogation
a. Joanne Hurt
Although he applied for work on April 15, Johnny Emerson
actually started working for Respondent around the first of May
1997. As shown above, Emerson testified about a phone con-
versation with Joanne Hurt in May 1997. According to Emer-
son’s testimony under cross-examination, Joanne Hurt asked
him what his feelings were about the Union. Emerson told her
that he was just not comfortable working for a union. Hurt told
Emerson that if it was his intention that he did not want to work
for a union, if he would write it down and send it to her. Emer-
son did that.
Emerson denied that the Union was mentioned during his job
interview or by a management official at any time before the
above-phone conversation with Hurt. On cross-examination he
testified that he was not sure whether there was any mention of
a strike during his initial interview.
3. Findings
a. Credibility
As shown above I credit the testimony of Johnny Emerson
and discredit the conflicting testimony of Joanne Hurt.
b. Conclusions
The “test for determining the legality of employee interroga-
tion regarding union sympathies is ‘whether, under all the cir-
cumstances, the interrogation reasonably tends to restrain or
interfere with employees in the exercise of their statutory
rights.”1
As to whether Hurt’s comments tended to restrain or inter-
fere with employees’ rights, the evidence showed that Hurt
questioned Emerson as to how he felt about union representa-
tion. Joanne Hurt testified that Dean Hefner told her that Emer-
son didn’t want anything to do with the Union. Emerson admit-
ted that he told Hefner, perhaps years before, how he felt about
unions. However, Emerson had not taken a position on the
union question at Respondent. As shown above, Respondent
actively supported its replacement employees’ efforts to disen-
franchise the Union. The information sought by Hurt involved
Emerson’s involvement in decertification efforts. Specifically,
Hurt was inquiring into whether Emerson would sign a state-
ment showing that he did not want the Union. The record
shows that Emerson was truthful in his response to Hurt. There
was no showing that Respondent had a valid purpose in seeking

1 Mathews Readymix, Inc., 324 NLRB 1005, 1007 (1997), citing
Service Master All Cleaning Services, 267 NLRB 875 (1983).
to determine how Emerson stood on decertification. Hurt did
not tell Emerson why Respondent needed the information and
she did not assure Emerson against reprisals. Under the circum-
stances, I find that Hurt’s interrogation of Emerson was a viola-
tion of Section 8(a)(1) of the Act. Cooper Tire & Rubber Co. v.
NLRB, 957 F.2d 1245, 1255-56 (5th Cir. 1992); Baptist Medi-
cal Systems, 288 NLRB 1160 (1988); Southwire Co., 282
NLRB 916 (1982); Rossmore House, 269 NLRB 1176 (1984);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). See also
National Labor Relations Board v. McCulloch Environmental
Services, Inc., 5 F.3d 923 (5th Cir. 1993).
4. Additional allegations
The February 2, 1997 strike was prolonged by unfair labor
practices:
Did Respondent solicit a petition to remove the Union:
Striking Employees made unconditional offers to return to
work:
Since June 10, 1997, Respondent has refused to reinstate
employees that struck on February 2, 1997.
The parties stipulated that Respondent and the Union en-
gaged in good-faith bargaining in 1996 but did not reach a col-
lective-bargaining agreement. A lawful impasse was reached.
Respondent lawfully implemented matters included in its last
collective-agreement offer to the Union. On February 2, 1997,
the Union engaged in an economic strike. The Respondent
lawfully replaced the employees that were engaged in the
strike.
Richard Maxwell testified that Thomas Husvar came into the
cafeteria where the strikers were gathered before setting up the
picket line on February 2, 1997. Husvar saw the striking em-
ployees including Merl C. Davidson. Respondent, in its brief,
questioned weather Davidson was an employee on the conten-
tion that he had not completed his probationary period before
the strike.
Husvar testified that two employees continued to work when
the others struck on February 2, 1997. Those included full-time
employee Raymond Wray and one casual employee named
Grant Crow.
As shown above, Respondent held a meeting for replacement
drivers on April 6, 1997. Raymond Wray told Thomas Husvar
that he did not want union representation and that he did not
believe the people wanted union representation. Husvar told
Wray to ask those questions during the meeting. Husvar ex-
plained to the meeting that the replacement drivers had been
hired as permanent replacements and that they would have a
job even if the striking drivers elected to offer to return to work.
Raymond Wray asked what could they do about union repre-
sentation. Husvar told the employees that it was their decision
whether to have union representation and that Transpersonnel
could not encourage or discourage them to have a union. Hus-
var told the employees that if they did not want a union, Re-
spondent would have to have some proof of their feelings, a
note or a document or something saying that. Later, as the
meeting took a temporary break, an employee handed a note to
Beth Burrell. The note indicated “no union,” and was signed by
all the employees that attended the meeting—eight employees.
Those eight included Raymond Wray. Grant Crow did not sign
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 492
that note. Husvar testified that Crow was not at the April 6
meeting.
Beth Burrell gave the note to Thomas Husvar. Burrell
worked directly under Huvar’s supervision. She supervised
Joanne Hurt. Husvar testified that he did not see the drivers
circulating the note during the meeting.
When the meeting resumed after the break, Lynn Osterhout,
one of the drivers, asked Husvar, “What do we do now?” Hus-
var replied that he had “their expression that this was what they
so desired; however, there would have to be representation and
similar information from a majority of the employees.” Husvar
went on to say that they were adding new employees and “if
they felt the same way, when we received a majority of the
employees that were expressing they didn’t want the Union,
then there was something that we could do about it, but until
that time I would just keep the note on file.”
Respondent hired Franklin Harris, Brad Forkey, Dean
Hefner, and Johnny Emerson between April 6 and May 9. Re-
spondent received notes from each of those four stating the
respective employee did not want to be represented by the Un-
ion. However, Huvar and Hurt were unable to find the state-
ment signed by John Emerson. Huvar then went to Emerson
and Hefner and had each write a statement that Emerson had
previously sent in a statement saying that he did not want union
representation. Emerson recalled that he signed a note during
May 1997. He acknowledged signing the note in a statement to
Respondent dated July 14, 1997.
Richard Maxwell met with Tom Husvar at Shoney’s in Gaff-
ney, South Carolina, on April 25, 1997. The meeting was set up
in order to discuss possible negotiation dates. Huvsar told Max-
well that Respondent was hiring striker replacements. Maxwell
asked Husvar if he was replacing union members and were the
members not able to return to work. Husvar replied that he
needed to check with his attorney and get back to Maxwell on
that.
Husvar testified about his April 25 meeting with Maxwell.
He recalled that he told Maxwell Respondent had hired 11 or
12 striker replacements and could not negotiate those employ-
ees’ rights as permanent replacements for economic strikers.
Maxwell said that he thought that could be negotiated. Husvar
said that he would check with his attorneys.
Respondent wrote the Union on May 9 and withdrew recog-
nition.
Richard Maxwell testified that 11 union members were on
checkoff at the time of the February 1, 1997 vote to strike.
Maxwell testified from the Union’s January 8, 1997 checkoff
billing to Respondent (GC Exh. 9) that all 13 members listed on
that billing remained employees on May 9, except for Franklin
Sanders and Anthony Rogers. The billing is sent to Respondent
with the presumption that members listed on the checkoff are
employees and should have their union dues withheld.
Thomas Huvar testified that Grant Crow worked the first 2
weeks of the strike. Crow then asked that Respondent not as-
sign him work during the strike. He periodically phoned Re-
spondent regarding the status of work and the strike. Huvar
testified that he encouraged Crow to return to work. He told
Crow that the drivers had a meeting and some of the drivers
signed a petition that they did not want to be represented by a
union and that the numbers were growing stronger all the time.
Crow said that Huvar knew how he felt about that and if there
was anything he could do he would. Huvar replied, “Grant, if
you feel that way and you want to express that feeling to us,
send it do [sic] us in writing.” Crow asked Huvar to send him a
statement showing what Huvar wanted. Huvar testified that he
wrote Crow and Crow used that as a guideline and wrote back
to Respondent that he did not want the Union to represent him
(R. Exh. 8).
After receiving Respondent’s withdrawal of recognition,
Maxwell held a meeting of members on June 6, 1997. Maxwell
explained that Respondent had taken the position they were
withdrawing recognition of the Union. Maxwell stated during
the meeting, that Respondent was engaged in unfair labor prac-
tices by withdrawing recognition and other incidents. During
that meeting the members voted to return to work without con-
dition.
On June 6, 1997, the Union wrote Respondent that named
employees were making unconditional offers to return to work.
Respondent admitted that the following employees made un-
conditional offers to return to work on or about June 6, 1997:

Jerry McDaniel Gary Scott
Joe Whitaker Bobby Rice
Vernon Payden James Prater
Jimmy Snyder

All the striking union member employees presented them-
selves at their dispatch location on June 7. The Union contacted
a person named Kelly with Respondent and told her the work-
ers were reporting to work unconditionally.
On June 10 Respondent responded to the Union’s June 6 let-
ter and acknowledge receipt of unconditional offers to return to
work from Jerry McDaniel, Joe Whitaker, Vernon Payden,
Jimmy Snyder, Gary Scott, Bobby Rice, and James Prater. Re-
spondent stated that “no employment opportunities are immedi-
ately available; however, each employee will be placed on a
preferential hiring list for employment and will be recalled
when driving jobs or substantially equivalent positions for
which they are qualified become available.” Respondent re-
quested documentation that McDaniel and Payden are medi-
cally qualified to meet lifting requirements.
Husvar testified that McDaniel was off work since June or
July because of an injury. Respondent and McDaniel eventually
agreed to a settlement of his disability claim, which, according
to Husvar, included an agreement that McDaniel would not be
able to perform his job (R. Exh. 14).
Respondent admitted that the following employees made un-
conditional offers to return to work on or about June 30, 1997:

Ben Swenson Frank Sellars
William Wilkins Merl C. Davidson

On July 30, 1997, the Union wrote Respondent that Jerry
McDaniel, Joe Whitaker, Vernon Payden, Jimmy Snyder, Ben
Swenson, Gary Scott, Bobby Rice, James Prater, Frank Sellars,
William Wilkins, and Merl C. Davidson were unconditionally
offering to return to work.
TRANSPERSONNEL, INC. 493
(1) Findings
(a) Credibility
As shown herein, a great deal of the evidence regarding these
additional allegations is unrebutted; or involves stipulation of
the parties; or involves credibility determinations that are
shown above. As to the specific matters that do not involve
stipulations, I credit the testimony of Richard Maxwell regard-
ing the incidents at the cafeteria on February 2. That testimony
was not disputed. Additionally, I credit the undisputed testi-
mony of Richard Husvar that two employees continued to work
on February 2. I credit Husvar regarding the April 6 meeting of
replacement employees. That testimony was not disputed.
I credit Husvar regarding the hiring of four employees be-
tween April 6 and May 9, 1997, and I credit his undisputed
testimony regarding his conversation with Grant Crow. I credit
Richard Maxwell’s account of his meeting with Husvar on
April 25. That testimony was in accord with the testimony of
Husvar. I also credit Maxwell’s testimony regarding members
on check-off. That testimony and the full record show that at
least 11 union members were employed by Respondent on May
9. Those included Merl Davidson, Vernon Payden, James
Prater, Bobby Rice, Gary Scott, Frank Sellars, Jimmy Snyder,
Bernard Swenson, Clyde Whitaker, William Wilkins and Earl
Dale. Jerry McDaniel may have been another employee. The
record evidence was not fully developed but it appears he was
off work due to a disability, which prevented him from return-
ing to work. If necessary, his status may be considered in com-
pliance proceedings.
Respondent argued that Merl Davidson was not an employee
on the contention that he was a probationary employee. Since it
was unable to determine if Davidson was involved in the strike,
he was considered to have quit his job during the strike. I find
that the record does not support that argument. Credited evi-
dence shows that Davidson was one of the employees that
gathered for the strike on February 2. Regardless of his proba-
tionary or permanent job status, he is entitled to protection be-
cause of his strike activities.
I credit Maxwell’s undisputed testimony regarding the June
6 meeting of union members. I credit the above-mentioned
evidence regarding unconditional offers to return to work.
(b) The February 2, 1997 strike was prolonged by unfair
labor practices: did Respondent solicit a
petition to remove the Union
Respondent withdrew recognition on May 9, 1997. General
Counsel contended that action was illegal and that it converted
the economic strike into an unfair labor practice strike. Re-
spondent contended that it had a good-faith reason based on
objective considerations to withdraw recognition. It pointed out
that it had received written notice from a majority of its bar-
gaining unit employees that they did not want the Union to
represent them.
The written notices received by Respondent included the
note signed by eight employees that attended the April 6 meet-
ing. The note stated “[N]o union” and was erroneously dated
April 7. Subsequently between April 7 and May 9, it received
five more statements signed by unit employees showing the
respective employee did not want union representation.
The evidence also shows that 11 unit employees were en-
gaged in the strike. Therefore, according to Respondent’s con-
tention, the bargaining unit could have included as many as 24
employees on May 9. Respondent argued that more than one-
half those employees expressed to it, their desire to reject the
Union.
There is a presumption that a union continues to enjoy ma-
jority status upon the expiration of a collective-bargaining con-
tract. The burden of rebutting that presumption rests on the
party who would do so. Pioneer Inn, 228 NLRB 1263 (1977);
Rose-Terminix Exterminator Co., 315 NLRB 1283, 1287
(1995). The presumption may be rebutted by showing that the
union has actually lost its majority support or that the employer
had a good-faith doubt based on objective consideration that the
union continued to have majority support. The good-faith doubt
must be raised in a context free of unfair labor practices. Ter-
rell Machine Co., 173 NLRB 1480, 1480–1481 (1969).
Respondent argued that 13 unit employees signed and pre-
sented to Respondent, statements disavowing union representa-
tion. The General Counsel argued that some of those statements
were tainted by illegal actions of Respondent.
Initially, I note that the record does not involve a dispute as
to the disavowal by employees Raymond Wray and Franklin
Harris. The only evidence in the record shows that Wray told
Thomas Husvar that he didn’t want the Union to represent him,
as they approached an April 6 meeting. There was no showing
that Husvar did anything to cause Wray to make that comment.
As to Harris, there was no evidence that Respondent influenced
his signing a statement marked received by Respondent, on
April 15, 1997, stating that Harris was not joining the Union.
Moreover, as shown above, the General Counsel failed to prove
that the disavowal of Dean Hefner was tainted.
However, there are questions regarding the remaining state-
ments of disavowal.
As shown above Respondent Eastern Regional Manager
Thomas Husvar was present at an April 6 meeting when eight
replacement drivers signed a statement entitled “no union—04–
07–98.” One of those eight was Raymond Wray and, as shown
above, Wray had already told Husvar that he did not want to be
represented. The remaining seven signatures appear to be those
of Daniel Osterhout, Mark Thompson, Doug Gregg, Marshall
Smith, Johnny Blackburn, Dean Gant, and Frank Patterson.
The Board found in Mathews Readymix, Inc., 324 NLRB
1005 (1997), that decertification was tainted by management.
At footnote 16, Member Fox stated her opinion that decertifica-
tion petitions were tainted “by the circumstances surrounding
the solicitation of signatures during the break in the mandatory
safety meeting called by the Respondent on April 11.”
Here, there was also a meeting called by management. At
least two management officials, Thomas Husvar and Beth
Burrell, were present during the meeting. Husvar presided over
the meeting. Unlike the situation in Mathews Readymix, there
was no break in the meeting until the no union note was circu-
lated, signed by eight employees and given to Management
Representative Beth Burrell. In Mathews Readymix, Inc, the
management representatives presence during circulation of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 494
petition while the meeting was on break, influenced Member
Fox. She found that management presence could reasonably
lead employees to believe that management authorized the
circulation of the petitions and wanted the employees to sign
them. Here, management representatives were also present but
the signing of the petition actually occurred during the meeting.
Husvar and Burrell were present throughout the meeting while
the employees circulated and signed the note stating no union.
Respondent then used that note and advised its employees they
needed more signatures before establishing a majority and tak-
ing action regarding union representation. As shown above,
after he received the petition against representation, Husvar
suggested to the drivers that Respondent was adding new em-
ployees and if those employees felt the same way, Respondent
could do something about union representation when they re-
ceived a majority expression against the Union.
I am convinced that Husvar’s comments during that meeting
were in violation of Section 8(a)(1) and that those comments
illegally influenced seven unit employees to sign a petition
against union representation. I find those seven signatures were
illegally tainted and cannot be considered as objective factors in
Respondent’s withdrawal of recognition.
Subsequently, as shown above, Thomas Husvar illegally so-
licited employee Bradford Forkey to sign a statement disavow-
ing union representation and Joanne Hurt illegally solicited a
disavowal from employee Johnny Emerson. I find that both
those statements were illegally tainted and cannot be consid-
ered as objective criteria for Respondent to withdraw recogni-
tion.
Additionally, the testimony of Thomas Husvar shows that he
illegally influenced Grant Crow to sign a statement that he did
not wish to be represented by the Union. As shown above,
Husvar testified that he told Crow that the drivers had a meet-
ing and some of the drivers signed a petition that they did not
want to be represented by a union and that the numbers were
growing stronger all the time. Crow said that Husvar knew how
he felt about that and if there was anything he could do he
would. Husvar replied, “Grant, if you feel that way and you
want to express that feeling to us, send it do [sic] us in writing.”
Crow asked Husvar to send him a statement showing what
Husvar wanted. Husvar testified that he wrote Crow and Crow
used Husvar’s writing as a guideline and wrote back to Re-
spondent that he did not want the Union to represent him (R.
Exh. 8).
Therefore, I find that 10 of the signatures relied on by Re-
spondent in withdrawing recognition were tainted by Respon-
dent’s illegal activity. Only 3 of approximately 24 employees in
the bargaining unit submitted statements that provided an ob-
jective basis for Respondent to determine that those employees
did not desire to be represented by the Union. That was far less
than a majority.
However, Respondent argued in its brief, that a good-faith
doubt may be established through second hand statements such
as the statement made by Raymond Wray to Thomas Husvar on
April 6 and a statement made by Dean Hefner to Joanne Hurt
regarding Johnny Emerson. Wray told Husvar that he did not
want union representation and that he did not believe the people
wanted union representation.
The Supreme Court dealt with a similar question in Allen-
town Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). In
that matter, the employer elected to poll its employees as to
whether they desired to continue union representation. In con-
sidering whether the employer demonstrated a good-faith doubt
which justified its poll of the employees, the Court considered
evidence that two employees had made statements to manage-
ment to the effect they felt other employees did not want union
representation. The Court held that “absent some reason for the
employer to know that [the employees] had no basis for (their)
information, or that [the employees were] lying, reason de-
mands that the statement[s] be given considerable weight.” 522
U.S. at 370.
The Court found that one of the two employees at issue in
Allentown Mack Sales was a union shop steward and a member
of the union’s bargaining committee and that the administrative
law judge had found that the employee did not indicate per-
sonal dissatisfaction with the union. Here, the situation is quite
different. Raymond Wray was not a union member. He was not
on their checkoff and the testimony of Business Agent Maxwell
showed that Wray was not a member. Wray was one of two
employees that refused to go out on strike. The record estab-
lished that Wray was biased against the Union and that Re-
spondent was aware of that bias.
However, more importantly, was the reaction of Thomas
Husvar after Wray told him that he did not support the Union
and he did not believe the people did. Rather than taking a neu-
tral position on the matter of union representation, Husvar re-
plied that Wray should bring up that question in the upcoming
meeting. When Wray questioned what the employees could do
about union representation, Husvar did tell the employees that
it was their decision and Respondent did not encourage or dis-
courage them to have a union. However, he had preceded that
statement with a comment that the employees were permanent
replacements for the strikers and would have a job even if the
strikers sought to return to work. Husvar responded to Wray’s
question by telling the employees that if they did not want a
union, Respondent would need proof of their feelings, “a note
or a document or something saying that.” During the meeting
the employees circulated a “no union” note which was signed
by all the employees present. Husvar was present throughout
the meeting. Even though he testified that he did not see the
note being circulated, it is obvious that the employees knew
only that he and Beth Burrell were there and neither objected to
the circulation of the note. Under those circumstances, espe-
cially against the background of Husvar’s comments, the em-
ployees could have felt that management was agreeing to their
activities in petitioning for the removal of the Union. Of course,
the meeting had also included Husvar’s comments regarding
those employees’ status (i.e., that they were permanent re-
placements for the striking employees). I am convinced that
action by Husvar directly influenced the employees in their
decision and constituted an unfair labor practice.
I find that Respondent was not justified in considering
Wray’s comments as demonstrating what the other employees
felt about union representation. I base that finding on the record
evidence that Respondent knew of Wray’s feelings about the
Union and in view of Husvar’s almost immediate intervention
TRANSPERSONNEL, INC. 495
into the question of union representation by his reaction to
Wray’s question during the meeting.
As to Dean Hefner’s comment to Joanne Hurt that Johnny
Emerson felt the same way about the Union that he did, I find
that Respondent was justified in considering that as evidence of
dissatisfaction by Emerson. I make that finding despite the
record evidence which demonstrated that Hefner’s comments
were based on something Emerson may have said years earlier,
and which had no relationship to the current dispute.
Allentown Mack Sales & Service v. NLRB, 522 U.S. 359
(1998), should be distinguished from the instant case in one
other respect. There the employer elected to poll the employees
regarding union representation. Here, Respondent withdrew
recognition from a union with a history of reaching collective-
bargaining agreements with Respondent. That withdrawal fol-
lowed Respondent’s direct intervention into the employees’
disclaimer process. That intervention included actions in viola-
tion of provisions of the Act.
Respondent also argued in its brief, that the record proved
(1) actual loss of the Union’s majority, and (2) that it had a
good-faith doubt of the Union’s continued majority status. As
to (1), it argued that the evidence proved that as of May 9, there
were no more than 9 or 10 striking employees; there were 12
active drivers and that it had received 12 untainted petitions of
employees that they did not want union representation. As
shown above, I find that Respondent did not receive 12 un-
tainted signatures. Instead it received far less. I find that Re-
spondent had received only untainted statement from Raymond
Wray and Franklin Harris that each did not want union repre-
sentation; and from Dean Hefner that he and Johnny Emerson
opposed unions. Therefore, I find that the evidence did not
prove that the Union had actually lost majority support.
As to point (2), Respondent agreed that the jurisprudence re-
quires that it must show that it had a good-faith doubt of the
Union’s continued majority in a context free of unfair labor
practices. Terrell Machine Co., 173 NLRB 1480 (1969). Here,
as shown above, there was no showing of a good-faith doubt
and Respondent’s did not withdraw recognition in an atmos-
phere free of unfair labor practices. The record shows that Re-
spondent may have had a good-faith doubt as to whether only 4
of some 24 employees, would reject union representation.
At most, Respondent had expressions of opposition to union
representation, from 3 of its 24 employees. Respondent argued
on the basis of Allentown Mack Sales & Service v. NLRB, su-
pra, that it need not show knowledge of an actual majority op-
position to union representation. However, here the numbers
are no where near what would be needed to prove a good-faith
doubt.
I find that Respondent did not have an objective basis to be-
lieve that the Union had lost its majority status. Respondent’s
May 9 withdrawal of recognition was illegal in violation of
Section 8(a)(1) and (5) of the Act.
Striking Employees made Unconditional Offers to Return to
Work: Since June 10, 1997, Respondent has Refused to Rein-
state Employees that Struck on February 2, 1997
As shown above, when he met with Union Agent Maxwell
on April 25, Thomas Husvar told Maxwell that he could not
negotiate the rights of permanent replacements. However, Hus-
var told Maxwell that he would check with his attorneys and
get back with Maxwell as to whether he was correct in that
comment. Husvar never did get back with Maxwell on that
matter.
Subsequently, during the first union meeting after Respon-
dent withdrew recognition the striking employees voted to re-
turn to work. On June 7 those employees presented themselves
at Respondent’s dispatch location and announced they were
ready to work. The record failed to show that drivers were rein-
stated.
The strike was economic from its February 2 inception until
Respondent unlawfully withdrew recognition on May 9, 1997. I
am convinced that Respondent’s activity in violation of Section
8(a)(1) and its unlawful withdrawal of recognition were de-
signed to undermine employees’ support for the Union. Hearst
Corp., 281 NLRB 746 (1986); American Linen Supply Co., 297
NLRB 137, 145 (1989). That unlawful conduct affected the
employees’ withdrawal from union representation.
The record shows that Respondent’s unlawful conduct con-
verted the economic strike into an unfair labor practice strike
no later than May 9, 1997. When an employer illegally with-
draws recognition, the employees are deprived of their bargain-
ing representative and are precluded from reaching agreement
on a contract and settling an economic strike. Withdrawal of
recognition has the affect of prolonging the strike and converts
the strike into an unfair labor practice strike. Rose Printing Co.,
289 NLRB 252 (1988); Sanderson Farms, 271 NLRB 1481
(1984); American Linen Supply Co., supra at 146.
Therefore, all employees that were engaged in the unfair la-
bor practice strike on or after May 9, 1997, are entitled to rein-
statement even if it is necessary for Respondent to terminate
employees hired as replacements on or after that date. As eco-
nomic strikers from February 2, all strikers are entitled to rein-
statement upon the opening of each striker’s former job or a
substantially equivalent position.
The record is not complete as to whether employees were
denied reinstatement rights as economic or unfair labor practice
strikers. The parties did stipulate that the economic strikers
were lawfully replaced. However, the record is unclear as to
when or if, those positions or substantially equivalent positions,
became vacant; whether the positions were filled by strikers or
others; and the timing of events after employees made uncondi-
tional offers to return to work and after the strike was converted
to an unfair labor practice strike. Those issues may be deter-
mined if necessary in compliance proceedings.
CONCLUSIONS OF LAW
1. Transpersonnel, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. General Drivers, Warehousemen and Helpers, Local 28,
affiliated with International Brotherhood of Teamsters, AFL–
CIO, CLC is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent by soliciting its employees to sign statements
stating they do not want union representation; and by interro-
gating its employee about his feelings about the Union, en-
gaged in conduct in violation of Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496
4. The Union is and has been at material times the collective-
bargaining representative of Respondent’s employees covering
employees at the Kohler Company in Spartanburg, South Caro-
lina.
5. Respondent, by withdrawing recognition from the Union
as exclusive collective-bargaining agent of its employees at the
Kohler Company in Spartanburg, South Carolina, has engaged
in conduct in violation of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has unlawfully withdrawn
recognition from the Union, I shall order that Respondent rec-
ognize and, on demand, bargain with the Union as the unit em-
ployees’ collective-bargaining representative. I shall also rec-
ommend that Respondent make the unit employees whole for
all losses they suffered because of its unlawful withdrawal of
recognition and, if it is shown that unit employees were unlaw-
fully denied reinstatement in accord with their rights as unfair
labor practice strikers on or after May 6, 1997, that Respondent
be ordered to offer full and immediate reinstatement to each
such employee to his or her former job or, if that job not longer
exists, to a substantially equivalent position, terminating if
necessary any employee hired after the strike was converted to
an unfair labor practice strike.
[Recommended Order omitted from publication.]