289 N.L.R.B. 862 (N.L.R.B. 1988)

Tube Craft, Inc.

National Labor Relations Board - Board DecisionsJul 14, 1988

289 N.L.R.B. 862 (N.L.R.B. 1988)

862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Tube Craft, Inc. and United Steel Workers of Amer- ica, AFL-CIO, Local 8703 . Case 8-CA-18371 July 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On January 23, 1986, Administrative Law Judge Robert W. Leiner issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, I and conclusions2 and to adopt the recommended Order as modified and set forth in full below.3 i The judge 's discussion and conclusions regarding the Respondent's failure to rebut the presumption of the Union' s continuing majority status make it apparent that he erred inadvertently in stating , in part III ,C, par. 6 of his decision, that the Respondent 's evidence demonstrates the antiun- ion attitudes of "all" employees . The context indicates that the judge in- tended the word "some ," and we adopt this finding as so corrected. 2 In adopting the judge 's conclusion that the Respondent did not rebut the presumption of continuing majority status or establish a reasonably based doubt of that status, we do not rely on Pennco, Inc., 250 NLRB 716 (1980), which was overruled in Buckley Broadcasting Corp., 284 NLRB 1339 (1987). In Buckley Broadcasting, we held that we will not entertain any specific presumption concerning the union sentiments of strike re- placements but will simply consider whether the employer has proffered sufficient evidence of employees ' expressed desires to repudiate the union as collective-barganung representative to overcome the overall presump- tion of continuing majority status . Although the judge considered the Pennco presumption , his ultimate analysis was consistent with the princi- ples of Buckley Broadcasting 8 As part of his recommended remedy for the violations that converted the employees' economic strike into an unfair labor practice strike, the judge provided that certain employees be accorded the reinstatement rights to which unfair labor practice strikers usually are entitled Here, their rights would have been operative only after their positions were no longer filled by the permanent replacements hired while the strike was still an economic strike. We have decided however, in a separate pro- ceedmg involving the same parties, Tube Craft, Inc., 287 NLRB 491 (1987) (Tube Craft I), that the Respondent lawfully discharged all the strikers who otherwise might have been eligible for reinstatement There- fore, we shall delete the remedial provisions that provide for reinstate- ment rights. Member Babson did not participate in Tube Craft I, supra Member Babson agrees , based on the facts of that case, that the strikers engaged in picket line misconduct that justified their discharge by the Respondent He, however, finds it unnecessary to pass on the standards applied by the Board in that case in assessing whether the picket line misconduct was sufficient to justify the discharge of the strikers. We also recognize that eliminating the unfair labor practice strikers' re- instatement rights means that , in adopting the judge 's recommended bar- ganung order, we will be directing the Respondent to bargain at a time when the Union has lost all its previously known supporters and the unit consists exclusively of permanent strike replacements or other newly hired employees Nevertheless, the Respondent is not in a position to question the Union's status for, as found by the judge, it abruptly and un- lawfully withdrew recognition at a time when the Union continued to be entitled to the presumption of majority status because at that time the striking employees were still employed. In these circumstances , a reason- able period of time for renewed bargaining must be provided without regard for subsequent fluctuations concern ng majority status VIP Lim- ORDER The National Labor Relations Board orders that the Respondent, Tube Craft, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith collectively with United Steelworkers of America, Local 8703 and District 28 (the Union), as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All clerical employees of Tube Craft, Inc., employed at its Cleveland plant, excluding confidential employees and professional em- ployees, guards and supervisors as defined in the Act and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, on request, bargain in good faith with the Union as the exclusive representative of the employees in the above-described appropri- ate unit regarding wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement. (b) Post at its facility in Cleveland, Ohio, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. ousine, 276 NLRB 871 fn. 1, 877 (1985), Poole Foundry & Machine Co, 95 NLRB 34 (1951), enfd 192 F 2d 740 (4th Cir. 1951), cert . denied 342 U.S 954. Therefore, the bargaining order is still warranted. Finally, we will delete the visitatorial provision granted by the judge in par. 2(c) of his recommended Order See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 4 If 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 Nation- al 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 " 289 NLRB No. 122 TUBE CRAFT, INC. 863 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 ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain in good faith collectively with Local 8703 and Dis- trict 28, United Steelworkers of America (the Union), as the exclusive bargaining representative of our employees in the following appropriate unit: All clerical employees, excluding confiden- tial employees and professional employees, guards and supervisors as defined in the Act and all other employees employed by us in Cleveland, Ohio. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain col- lectively in good faith with the above-named Union as the exclusive representative of our em- ployees in the above appropriate unit regarding rates of pay, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. TUBE CRAFT, INC. Steven D. Wilson, Esq., for the General Counsel David E. Bishop, Esq. and Jeffrey M. Carey, Esq. (Calfee, Halter & Griswold), of Cleveland , Ohio, for the Re- spondent Mark A. Rock Esq. (Schwarzwald, Robiner, Wolf & Rock), of Cleveland , Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. This matter was heard on 2 and 3 December 1985 in Cleve- land, Ohio, on the General Counsel' s complaint ' alleg- ing, in the substance, that Respondent, Tube Craft, Inc., in violation of Section 8(a)(l) and (5) of the National Labor Relations Act (the Act) unlawfully withdrew rec- ognition from the Union as the exclusive collective-bar- gaining representative of a unit of Respondent's employ- 1 The Union's underlying unfair labor practice charge against Re- spondent was filed and served on 28 June 1985 The General Counsel's complaint issued on 12 August 1985 ees, thereby prolonging a strike2 in which the unit em- ployees were engaged. Respondent's timely filed answer admits certain allegations of the complaint, denied others, and denies the commission of any unfair labor practices. At the hearing, all parties were represented by coun- sel, were given full opportunity to call and examine wit- nesses , submit oral and written evidence , and to argue orally on the record. At the close of the hearing, counsel waived final argument and reserved the right to submit posthearing briefs. Thereafter, all parties filed timely posthearing briefs, which have been carefully considered. On the entire record, including the briefs, and from my observation of the demeanor of the witnesses as they testified, I make the following FINDINGS OF FACT 1. RESPONDENT AS STATUTORY EMPLOYER Respondent admits that it is an Ohio corporation with an office and place of business in Cleveland, Ohio, where it engaged in the fabrication of metal tubing for use in the transportation and other industries. Respondent fur- ther admits that, in the course and conduct of its business operations on an annual basis, it sold and shipped from its Cleveland, Ohio facility products, goods, and materi- als valued in excess of $50,000 directly to points outside the State of Ohio and that at all material times it has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I so find. II. THE UNION AS A STATUTORY LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that United Steelworkers of America, District 28, and Local 8703, United Steelworkers of America, collective- ly called the Union, are now, and each have been at all material times, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent employs a total of 46 employees at its Baker Avenue, Cleveland, Ohio plant, 6 of whom, cleri- cal employees, are called "office and technical" employ- ees (0 & T employees). The complaint alleges and Re- spondent admits, inter alia, that a unit of all of Respond- ent's clerical employees, excluding confidential employ- ees and professional employees, guards and supervisors, as defined in the Act, and all other employees, consti- 2 At the hearing, I precluded the Charging Party from adducing proof or arguing that the strike from its 2 January 1985 inception , was an unfair labor practice strike The General Counsel stated that the Charging Party's position was contrary to the complaint (Tr 9) which, in sub- stance, alleged that the strike first became an unfair labor practice strike on 9 January 1985 On the General Counsel's and Respondent's objection (Tr 74-77), I also denied Charging Party's motion to amend the com- plaint to conform to the proof or to the offer of proof I reaffirm those rulings Compare Penntech Papers, 263 NLRB 264, 265 (1982), with Signal Transformer Co, 265 NLRB 272, 279 (1982) 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tutes a unit appropriate for the purpose of collective-bar- gaining within the meaning of Section 9(b) of the Act. Moreover, the complaint alleges and Respondent admits that on 15 August 1978, the Union was certified as the exclusive collective-bargaining representative in the above unit (G.C. Exh. 2). Thereafter, Respondent and the Union entered into collective-bargaining agreements covering employees in the above unit , the last of which, of 3 years' duration, expired on or about 31 December 1984. Commencing 13 December 1984, the parties engaged in negotiations for a further collective-bargaining agreement, and in the period 13-19 December 1984, bargained four to five times toward that end. Essentially economic differences prevented agreement . On Wednesday, 2 January 1985, as admitted in the pleadings and as supported in the record, all six clerical unit employees commenced a lawful eco- nomic strike and commenced picketing Respondent's premises. The Union's picketing, commencing on 2 Janu- ary, was ordinarily from 6 a.m. through midnight, with several unit employees on the picket line at any one time. Commencing midnight to 6 a.m., ordinarily strikers Lucia, Wallace, and Steele were regularly the pickets (Tr. 236). One picket, Alice Emmert, testified without contradiction that she was on the picket line 15 hours per day during the first 2 weeks of January (Tr. 242). Commencing on or about 3 January, Respondent began contacting persons to replace the strikers. These persons had never filed employment applications with Respondent nor otherwise previously contacted Re- spondent for employment. Some of the prospective em- ployees were friends of Respondent officers' children. Between 3 January and the early afternoon of 9 January, Respondent hired six employees to replace the six strik- ing union members .3 As of the time of the hearing, the strike continued. 1. The hiring of the replacement employees Respondent's president (Thomas La Boda) and execu- tive vice president (Bud Callahan) interviewed and hired the replacement employees immediately after the com- mencement of the 2 January economic strike. Thus, while Callahan did most of the interviewing and hiring, La Boda was present when Supervisor Walt Lindenberg interviewed and hired replacement Deborah Curp and he, himself, interviewed replacement employee Tim Mellino. Both replacements were told during the interviews that they were being hired as permanent employees to re- place the striking employees. La Boda testified and Cal- lahan corroborated that Timothy Mellino determined that Mellino had an engineering background, placed him in the production scheduling clerical position on the s The sixth replacement , Man Ann Rasmussen, although interviewed at 10 am, as noted , was hared on 9 January , apparently at or about I p in., and appears to have been paid for the time between 1 p.m and 4 30 p in (quitting tune) on 9 January Although there is certain documentary evidence arguably showing that her employment was effective only on the next day, 10 January 1985, there is other evidence to show that she entered on duty no later than I p in on 9 January (R Exh 8) Absent any other contrary evidence , I conclude that, as Respondent's supervisors testified , Rasmussen was hired no later than , and commenced work at, I p in of Wednesday, 9 January 1985 shop floor, which had previously been the job of striker Ed Steele. Callahan credibly testified that since all the employees, when interviewed, wanted to know their status , he told each of them that they were permanently replacing the strikers. Callahan also interviewed Deborah Curp on 3 January 1985 and she started work on the same day. He initially made her a receptionist because she was the first replace- ment employee hired and there was nobody in the office to answer the telephones. She was transferred to the "traffic department" where she had the responsibility of contacting trucking companies to coordinate delivery of Respondent's product to customers. She replaced striker Sylvia Lucia, who had formerly been the billing and traffic clerk. On the next day, Friday, 4 January, Callahan inter- viewed Sandra Hall, a friend of the Callahan family. She started work on Monday, 7 January. He told her in the interview that, with her background, she would perform best as an "order entry clerk." She replaced striking em- ployee Betty Jean Schumaker. On the day before her interview (i.e., on 3 January), Callahan had informed Hall that Respondent was on strike and, if she were in- terested, she could come down for an interview. Calla- han told Hall, both on the phone and at the actual inter- view on the next day, that she would be a permanent re- placement for a striking employee. On the same day that Callahan interviewed Sandra Hall, he also interviewed John Roberson who started work on the same day of the interview, 4 January 1985. Callahan noted that Roberson had no typing skills and told him he would be assigned as the "inventory control clerk" and a permanent replacement for Alice Emmert, who was on strike. On Monday, 7 January 1985, Callahan interviewd Amy Merrick who was a part-time employee at a nearby book- store, and a friend of Callahan's daughter, and who was taking courses at a nearby college. After the commence- ment of the 2 January strike, he spoke to her on a couple of occasions, told her of the strike, and told her that if she were employed, she would be a permanent replace- ment. He recalled telling her of the permanent nature of her job because it would require her to quit her part-time job at the bookstore and drop out of college in order to take a full-time, permanent job with Respondent. Calla- han testified that he assigned Amy Merrick as the ac- counts receivable and payroll clerk, replacing striker Ruth Kelly. Last, Callahan testified that Mari Rasmussen, inter- viewed at 10 a.m., was hired and started work on 9 Janu- ary 1985. He testified and Respondent's records showed that she started work at 1 p.m. and was paid for 3-1/2 hours between I and 4:30 p.m. He told her at the time of hire that she was a permanent replacement. She was made a receptionist and payroll clerk, working in close proximity with Callahan. All the above replacement employees were apparently working continuously for Respondent through the time of the instant unfair labor practice hearing. On the basis of the above uncontradicted testimony, I conclude that each was hired as a "permanent replacement" for each of 865 the six striking employees and that Respondent replaced the six striking employees with six permanent employees. I further find that no fewer than five of the six perma- nent replacements commenced work on or before (Tues- day), 8 January 1985. I particularly conclude, consistent with Respondent's testimony and notwithstanding that Rasmussen did not appear as a witness (nor was her absence explained), that Rasmussen was a permanent employee at 1 p.m. on 9 January 1985. I further conclude, therefore, that all six of the replacement employees were hired on and between 3 January and 1 p.m. on 9 January 1985. The Union admitted that since the commencement of the 2 January strike, the Union has not attempted in anyway to contact the replacement employees for pur- poses of soliciting their membership in the Union nor has it attempted to distribute union literature to them. I con- clude that, on this record, the Union had no knowledge of the union attitudes of the replacements. The Union also stated that sometime before the summer of 1985, striker Ed Steele had sought temporary employment elsewhere, and that on 8 February 1985, striker Sylvia Lucia gave notice of an intent to resign, effective 22 February 1985. I conclude that Lucia resigned on 22 February 1985 2. Bargaining subsequent to the strike; Respondent's withdrawal of recognition On the first day of the strike, Wednesday, 2 January, on the picket line, the Union's agent , Staff Representa- tive John J. Gromofsky, approached Respondent's manu- facturing manager , Walter Lindenberg, and asked for a further collective-bargaining session . The parties met on the next day, 3 January, but could not reach agreement. At the meeting, Respondent's attorney (Bishop) started to reprimand the Union for alleged picket line miscon- duct, but Gromofsky cut him short and said that they were there to negotiate rather than to discuss the Union's conduct. Respondent said nothing, at this 3 January meeting , of withdrawing recognition. On the next day, Friday, 4 January, Gromofsky asked President La Boda for a further meeting, but La Boda told him he would first have to contact Respondent's lawyer, Bishop, who was out of town. On 7 January, La Boda telephoned Gromofsky and set up a meeting for Wednesday, 9 January 1985. A meeting did take place in the afternoon on 9 January 1985, but Gromofsky said he was unclear when in the afternoon the meeting occurred. Because of Alice Emmert's testimony that striker Ed Steele came to the picket line on 9 January 1985 before the collective-bargaining session of that date, and arrived at about 1:30 p.m., I conclude that the collective -bargain- ing session of 9 January 1985 did not occur before 1:30 p.m. President La Boda said the meeting occurred in the early afternoon about 2:30. It is my conclusion that the 9 January collective-bargaining session occurred about 2:30 p.m. and lasted for no more than a short time in the afternoon (Tr. 339).4 The significance of the time when the 9 January col- lective-bargaining session first began relates in part to my conclusion, above, that Mari Ann Rasmussen was al- ready a permanent employee of Respondent at the time of the commencement of the collective-bargaining ses- sion. 3. The collective-bargaining session of 9 Janaury 1985 Pursuant to the 7 January phone call from President La Boda, the parties met about 2:30 p.m. of 9 January 1985, the Union represented by Staff Representative Gromofsky and striker Ed Steele; Respondent represent- ed by Attorneys Bishop and Carey, along with President La Boda. Gromofsky testified (Tr. 64) that the meeting consisted only of Attorney Bishop stating that he had a statement to read and that the substance of the statement was that the Respondent felt that the Union did not rep- resent a majority of Respondent's unit employees and, until that question was resolved, the Respondent would not negotiate with the Union. Gromofsky was clear in that Bishop did not say why Respondent felt that the Union did not represent a majority. When Gromofsky asked for a copy of the statement read by Bishop, Bishop refused. Gromofsky cut short Bishop's attempt to bring up picket line misconduct relating to the pickets' block- ing entrances. After Bishop read his statement, the meeting conclud- ed. Before 5 p.m., Gromofsky met with five of the strik- ers and told them what had happened at the meeting (Tr. 34). He asked them whether they desired to continue the strike and they told him that their cause was just and they would continue to picket. President La Boda testified that prior to the opening of the meeting, Respondent, in conjunction of its attor- neys, decided that it would no longer recognize or bar- gain with the Union and reached that decision because of (1) the misconduct of the six, employees whom it decid- ed to discharge; and (2) the existence of the six perma- nent replacements, which caused counsel and Respond- ent to doubt whether the Union represented a majority. There was no evidence, however, to suggest that any de- cision to discharge the striking employees, for picket line or other misconduct or for any other reason , was ever communicated to them or to any other person. Nor is there evidence that they were discharged. Regarding picket line misconduct, it was conceded that neither Re- spondent nor any other person filed charges against the Union, whether 8(b)(1)(A) violations or otherwise. On the other hand, the record shows that Respondent unsuc- cessfully applied for a temporary restraining order against the Union's picketing in the court of common pleas in Ohio. Respondent submitted in evidence (R. Exh. 7) the text of the Bishop statement which, on this record, was read to Gromofsky and Steele at the meeting on 9 January 1985. 4 About 6 February 1985, the Union wrote to the Respondent request- ing further negotiations, and on 11 February 1985 the Respondent de- chned to bargain with the Union alleging a good-faith doubt originating on 9 January 1985 regarding the Union 's majority status 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD STATEMENT Mr. Gromofsky, Members of the Committee: The device that I just set in front of me is a little tape recorder. It is recording what I am saying. I am going to make a statement today and I want my statement recorded. Management's representatives at this meeting have a copy of the statement that I am reading that they are going to follow along to make sure that I say only what is contained in the statement. Prior to the strike, the 0 & T bargaining unit at Tube Craft consisted of seven persons. One of the employees was a temporary employee. That em- ployee has submitted a letter of resignation to us. That person's position no longer exists at Tube Craft. Six members of the 0 & T unit began a strike on January 2, 1985. The strike continues as of today. Tube Craft has permanently replaced each of the six 0 & T employees. The replacements are working. With regard to permanent replacements, as you know the replaced employees have job rights should the replacement leave in the unforseeable future. You know as well as I do, Mr. Gromofsky, that the striking 0 & T employees engaged in miscon- duct during the strike. The fact Tube Craft is treat- ing the striking 0 & T members as permanently re- placed does not constitute a waiver of any of Tube Craft's legal rights with regard to picket line mis- conduct. There are presently six striking 0 & T unit members and six permanent replacements working at Tube Craft. Because of this six and six situation, Tube Craft has good faith doubt that Local 8703 of the United Steel Workers of America represents a majority of employees in the O & T unit. For that reason Tube Craft, Inc., declines to engage in any further bargaining with Local 8703 with regard to the 0 & T unit until the question is re- solved. It is, of course, an unfair labor practice for an employer to bargain with a union that does not represent a majority of its employees in a unit. 4. Replacement employees sentiments regarding the Union a. Respondent's witnesses La Boda testified that, while all employees voiced an- tiunion sentiments, two employees in particular made statements indicating their sentiments regarding the Union. He said that during the 2 January interview of Deborah Curp, she said that she did not understand why there was a union representing the clerical workers and that she would not join such a union; indeed, she had never heard of such a union representing such employ- ees. She also allegedly told him that she would not want to work where there was a union representing these em- ployees. Although Curp testified for Respondent at the heanng, her testimony omits any corroboration of La Boda's tes- timony concerning her particularized anti union senti- ments expressed during the 2 January interview. La Boda testified that Sandra Hall made similar state- ments to him prior to the 9 January collective-bargaining session, at which time Respondent withdrew recognition from the Union. La Boda also testified, generally, that from the beginning of their employment, the replace- ments all asked how they could get rid of the Union and get rid of the pickets. It was Curp and Hall, however, whom he identified with forcefully expressing these sen- timents . Yet Hall's testimony shows no conversation in which she made antiunion statements. La Boda also testified that he could tell that John Ro- berson did not harbor any prounion sentiments because Roberson offered to obtain video equipment from his girlfriend in order to photograph the pickets and their al- leged blocking of entrances and exits. It was this volun- teering by Roberson that led La Boda to believe that Roberson was antiunion. Roberson, corroborating La Boda, testified that on 8 January he filmed the pickets on the picket line and his picture was taken by one of the female pickets while he was videotaping them. Bud Callahan Callahan testified that the strikers called the replace- ments "scabs" and said they were going to take their jobs away. These striker statements occurred before 9 Janaury (Tr. 205). He testified, generally, that both before and after 9 Janaury, the replacement employees said they wanted the Union to "go away" and they wanted nothing to do with the Union (Tr. 206-207). John Roberson Roberson was hired and commenced employment on Friday, 4 January 1985, as inventory control clerk. He was interviewed on 3 January 1985 and testified that he saw and crossed the picket line on 4 and 7 January in his car in which Callahan and Debbie Curp, picked up at a prearranged point, were also passengers. He also testified that on 8 and 9 January, he drove separately to work in his car while all the other employees carpooled with Vice President Callahan in crossing the picket line. Com- mencing with his second day of work, 7 January, while at work, he heard the picketing strikers out in the street from his office. They said , inter alia, "Don't mess with the desks; we're going to be back." When he and other pickets told Callahan and La Boda of these remarks, they were instructed to close the office curtains and disregard the remarks, but the curtains, at least from time to time, remained open in order to see trucks arriving to make pickups of Respondent's material for delivery to custom- ers. Roberson and other Respondent's witnesses were un- clear about which pickets made statements, but he said that the remarks principally came from pickets Alice Emmert, Ruth Kelly, and Betty J. Schumaker. He was confident that he heard and reported the above remarks (about "messing with the desks" and that the pickets were "going to be back") on Monday and Tuesday, 7 and 8 January. Roberson, however, particularly identi- fied four to five pickets on 7 January, including Alice TUBE CRAFT, INC. Emmert, Schumaker, Kelly, and Ed Steele. He also testi- fied that on 8 and 9 January, he saw Emmert, Schu- maker, Kelly, and other pickets. On cross-examination , Roberson testified that at the time of hiring, Callahan told him that he was a perma- nent employee, and that Callahan repeated the same thing to the employees on 7 and 8 January after the re- placement employees reported the pickets' statements about not "messing up the desks" and "taking" their jobs. In placing the time that Callahan repeated this as- surance, however, Roberson specified that Rasmussen was among the employees. Since Rasmussen was not em- ployed until 9 January 1985 at 1 p.m., at least some of Callahan's statements may have been made after Re- spondent withdrew recognition from the Union. This does not automatically follow because Callahan's state- ments, in the presence of Rasmussen, might have oc- curred on or after 1 p.m. (when Rasmussen entered on duty) and before the commencement of the collective- bargaining meeting about 2:30 p.m., when Respondent withdrew recognition. I am satisfied, however, on the basis of Roberson's testimony and the testimony of other Respondent's witnesses, and notwithstanding contradic- tory testimony interposed by the Union's witnesses, that in the period 4 January through 8 January, the replace- ment employees were told by Callahan and La Boda that they were permanent employees and that the Union's pickets did make the above statements to the replace- ments (concerning the replacement employees not mess- ing up the desks and that the pickets would take their jobs) before 9 January 1985. Deborah Curp Curp entered on duty on 3 January after her 2 January interview. She testified that she heard nothing from the pickets on 3 or 4 January (Thursday and Friday), but commencing on Monday, 7 January, and through 9 Janu- ary at least, she heard the pickets through the windows call the replacements "scabs"; told the replacements not to "get comfortable"; don't mess up the filing cabinets or the desks"; and that the pickets "were going to get [their] jobs back." She testified that she and the other re- placements heard and reported the comments through the closed windows. Callahan told them to close the shades and curtains and to ignore what the pickets said. She testified that she could not tell which of the pickets said these things or what time of the day the statements were made, but that on 7 January, pickets Alice Emmert, Sylvia Lucia, and Ruth Kelly made the statements, al- though she was not looking at them when the statements were made. Curp also testified that on 8 and 9 January (Tuesday and Wednesday), the pickets said the same things that were directed to all the replacements (the pickets did not know the replacements' names); and that the replace- ments, in general, and she, in particular, were afraid of losing their jobs and afraid of possible physical assault from the replacements. She and the other replacements told this, she testified, to Supervisors Lindenberg, Calla- han, and La Boda. Last, Curp testified that almost on a daily basis, because of the pickets ' statements , the re- placement employees, including her, asked Callahan 867 about their job tenure and were told that they were per- manent employees. She testified that although she drove herself to the interview on 2 January, commencing with 3 January and thereafter, she drove to work escorted either by La Boda or Callahan. Sandra Hall Sandra Hall testified that on Friday, 4 January, at her interview, Ruth Kelly, a picket, took her picture as she entered Respondent's building in the early afternoon and that she told Plant Manager Lindenberg of the occur- rence. She started work on 7 January (Monday) and in the period 7 January through 9 January, like replacement Deborah Curp, she heard the pickets call the replace- ments "scab,"5 talk about getting their jobs back, and not messing up the desks in the office. She recalls that the replacement employees spoke of these things to Supervi- sors La Boda and Callahan and asked them whether they had permanent jobs and how long the picketing would go on. She testified that Callahan told them that they were permanent replacements and that they had nothing to worry about since the Respondent was taking care of the matter through its lawyers. Like Curp, Sandra Hall was driven through the picket line by carpooling with Callahan in the period 7 through 9 January 1985. Last, Hall testified that she saw Ruth Kelly, Alice Emmert, and Ed Steele, all pickets, during daylight hours when she was working in the period 7 through 9 January, between the hours of 8 to 4:30 p.m. She particu- larly recalled that on 7 January, Emmert, Kelly, Schu- maker, Lucia, and Ed Steele were on the picket line during these daylight hours and were also there on 8 and 9 January. b. The Union's witnesses Ruth Kelly testified that, contrary to the testimony of Sandra Hall, in particular, she was not on the picket line on 7 or 8 January because she was sick at home. Kelly testified that she returned to the picket line on 9 January, but said nothing to the replacement employees. Although Betty J. Schumaker testified that she was on the picket line in the period 7 through 9 January 1985, she corroborated Ruth Kelly's testimony that Kelly was not on the picket line on 7 or 8 January; that Ed Steele was not there on 7 or 8 January, but was on the picket line on 9 January only for 15 minutes before the collec- tive-bargaining meeting. She, like Kelly, denied saying anything about "scabs" or "getting the jobs back." Be- cause of Kelly's and Schumaker's testimony, to the 6 The Union introduced into evidence (C P Exh 2) Hall's statement, given in conjunction with Respondent's court of common pleas proceed. ing for a temporary restraining order in which Hall said that she and other replacement employees had been called scabs on 18 January by sinkers who also said they would get their jobs back No prior date ap- pears in the Hall statement . Particularly since Hall's statement, given to support the TRO application, necessarily would suggest proximity of al- leged union misconduct to the time of the TRO application, I do not be- lieve that the failure of the document to mention more remote union con- duct implies that such more remote conduct did not occur On this record, therefore , I cannot conclude the statement to have serious im- peaching effect, i.e., that no name-calling occurred in the period 7-9 Jan- uary 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD extent that Roberson, Curp, and Hall identified Kelly on the picket line on 7 and 8 January, I conclude that they were in error. This does not materially affect my gener- ally crediting the replacements' testimony that on 7 and 8 January the strikers called them "scabs" and said they would get their jobs back. Kelly testified that after 9 January she called one female replacement a "scab," but said nothing else. Thereafter, she said she might have said this on more than one occasion. Schumaker testified that in the period 2 through 9 January she said nothing to the replace- ments ; but after 9 January, heard the word "scab" used and heard Roberson called "pony-boy." Alice Emmert, whose demeanor on the witness stand demonstrated hostility against the replacements , testified that she said nothing to the replacements in the period 2 through 9 January, although she was on the line for at least 12 hours per day in that period. After 9 January, she admitted calling them scabs and admitted saying that she would "have her job back." She observed that the replacements were driven to and from their jobs by La Boda and Callahan . Emmert 's testimony appears to indi- cate that strikers Schumaker, Kelly, Lucia, and Emmert were often on the picket line from 6 a.m. to 8 or 9 p.m. B. Discussion and Conclusions6 In the instant case, as discussed , we are concerned with the Board rules concerning two rebuttable pre- 6 At the hearing, and in its brief, Respondent specified three defenses. (a) it had lawfully discharged the six strikers on the morning of 9 Janu- ary, before withdrawing recognition, resulting in a unit composed only of the six replacements Therefore, the presumption of the Union 's continu- ing majority was rebutted since at least three of the six replacements were antiunion and Respondent 's objectively based good -faith doubt was established See Beacon Upholstery Ca, 226 NLRB 1360 (1976) This de- fense is rejected because Respondent 's evidence , at most, showed that it made an uncommunicated decision to discharge the six strikers, but failed to prove that it actually discharged any of the six strikers-at any time- and therefore failed to factually support the defense . (b) The permanent replacement of the six strikers by I p in . on 9 January resulted in "six against six" in the 12-employee unit . The Union thus either had no major- ity, in fact , or, alternatively , Respondent had at least a good -faith doubt of the Union 's majority when it withdrew recognition . Since the Board rule in Pennco, Inc., 250 NLRB 716 (1980), rebuttably presumes that per- manent replacements support the incumbent Union in the same ratio as those replaced, and since all those replaced were prounion strikers, Re- spondent's defense , based solely on the total replacement of strikers, would ordinarily run afoul of the Pennco hiring-ratio presumption to which I am bound , notwithstanding that some courts of appeal may have refused to adopt the Board rule or may have even adopted a contrary presumption, e.g., NLRB v. Randle-Eastern Ambulance Service, 584 F 2d 720 (5th Cir. 1978), regarding the union sympathies of striker replace- ments A contrary presumption based solely on the number of replace- ments, as the General Counsel observes (Br at 9) apparently based on the Board 's explicit statement in Pennco, Inc., above at 717, would tend to validate a withdrawal of recognition , not on objective evidence of disaf- fection , but immediately on hiring permanent replacements equal to a ma- jority of striking employees if the strikers constitute a unit majority. Such an automatic result would undermine the right to strike and would be contrary to the Act Nowhere in Respondent's withdrawal of recognition (R Exh 7) is there mention of the union attitudes of the six replace- ments Respondent alluded only to the fact of replacement In the instant case, however , as the above text shows, Respondent presented evidence that, in my opinion , effectively rebutted this Pennco presumption. This evidence, comprised of the credited testimony of its supervisors and three replacements, eliminates the Pennco ratio presumption and makes consid- eration of it academic For here , it appears to me , when Respondent interposed evidence supporting its third defense (c), objective evidence of good-faith doubt (five of the six replacement employees , in fact, were an- sumptions often relevant in cases of withdrawal of recog- nition following an economic strike: the rebuttable pre- sumption of continued majority status flowing from cer- tification after the expiration of the certification year; and the rebuttable presumption that new employees, here the strike replacements, are presumed to support the Union in the same ratio as those they replace.? In Bartenders Assn. Pocatello, 213 NLRB 651 (1974), the Board, restating the underlying principles in which the employer seeks to withdraw recognition from an es- tablished bargaining representative, referred to Terrell Machine Co., 173 NLRB 1480-1481 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970), in which the Board stated: It is well settled that a certified union, upon expi- ration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargain- ing relationships, without impairing the free choice of employees. Accordingly, once the presumption is shown to be operative, a prima facie case is estab- lished that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer af- firmatively establishes either (1) that at the time of the refusal the Union in fact no longer enjoyed ma- jority representative status ; or (2) that the employ- er's refusal was predicated on a good-faith and rea- sonably grounded doubt of the union's continued majority status. As to the second of these, i.e., "good-faith doubt," two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the union. Although some courts have held that subjective evi- dence may be used to bolster the argument that such doubt existed at the relevant time, Pioneer Inn Associates v. NLRB, 578 F.2d 835 (9th Cir. 1978), other courts have tiunion), such evidence rebutted and eliminated from consideration the Pennco hiring ratio presumption . In short , Respondent , having effectively rebutted this Pennco presumption by the introduction of actual evidence concerning the replacements' union attitudes, it may not , in this case, raise the issue of the Pennco presumption or, perhaps , a contrary pre- sumption . The parties ' actually came to grips on Respondent 's above third defense, as the above text demonstrates . The presumption remains intact absent objective evidence that new employees are dissatisfied with the Union . Pioneer Inn Associates v NLRB, 578 F.2d 835 (9th Cir 1978). When, as here, convincing objective evidence rebuts the presumption, the presumption drops out. 7 Thus, a word might be said about the rule of evidence concerning presumptions . In NLRB Y. Tragniew, Inc., 470 F 2d 669, 674-675 (9th Cir 1972), a case involving the presumption of continued majority status and the rebuttal of such presumption, the court stated. Presumptions in the law are a procedural substitute for evidence They recognize the probability of a fact and impose the proof of the non-existence of that fact upon the party against whom the presump- tion is asserted The presumption of majority representation here in- volved is rebuttable by clear , cogent and convincing evidence Where, as here, objective evidence shows that at least 50 percent of the six replacement employees are antiunion , the Pennco presumption re- garding the union sympathies of replacements no longer "remains intact " Pioneer Inn Associates v NLRB, above. TUBE CRAFT, INC. noted that "any doubt as to the continuing majority status must rest on a reasonable basis and may not depend solely on unfounded speculation or a subjective state of mind." NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir. 1966). See Member Jenkins dissenting in Arkay Packaging Corp., 227 NLRB 397, 399 fn. 7 (1976). The Board and at least three circuit courts of ap- peals have observed that the quality of proof supporting the employer's good-faith doubt must be either "reliable objective evidence," cf. Landmark Trucks, 272 NLRB 675 (1984), which is "clear and convincing," NRTA- AARP Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975); or objective evidence that is "clear, cogent and convinc- ing," NLRB v. Gentzler Tool & Die Corp., 778 F.2d 1211 (6th Cir. 1985), enfg. 268 NLRB 330 (1983); Pioneer Inn Associates v. NLRB, above. NLRB v. Tragniew, Inc., 470 F.2d 669 (9th Cir. 1972); Ref-Chem Co. v. NLRB, 418 F.2d 127, 130 (5th Cir. 1969); and Whisper Soft Mills v. NLRB, 754 F.2d 1381 (9th Cir. 1984). Employee expres- sions of dissatisfaction with or antipathy for a union may prompt a reasonable doubt of majority status. Compare Pioneer Inn Associates v. NLRB, with NRTA-AARP Phar- macy v. NLRB, above. When the employer's withdrawal of recognition is based on a good-faith doubt created by the permanent replacement of striking employees, the Board has created a corollary rule to the above rebuttable presumption of continuing majority status flowing from certification:8 "[A]gain absent evidence to the contrary, new employees are presumed to support the incumbent union in the same ratio as those they replaced." Pennco, Inc., above. In Pennco, Inc., the Board expressly held that the rebuttable presumption of majority status continues in the face of an economic strike and is not rebutted by replacement em- ployees passing through a hostile picket line. Pennco, Inc., above at 718. It should be noted, however, that thereafter Chairman Dotson and three members of the Board have recently and repeatedly seen fit not to pass on this presumption concerning strike replacements set out in Pennco, Inc.; see Stormor, Inc., 268 NLRB 860 (1984); Blu-Fountain Manor, 270 NLRB 199 fn. 3 (1984); and the recent Cascade Painting Co., 277 NLRB 926 (1985). Several courts of appeals, however, have refused to accept the Board's Pennco presumption concerning the sympathies of striker replacements, Whisper Soft Mills v. NLRB, above,9 while others appear to have supported the rule. As noted, the Pennco ratio rule presumption, having been rebutted by Respondent, is no longer legally before us. We are left, therefore, with the presumption of 8 A similar presumption exists following expiration of a collective-bar- gaining agreement . Roza Watch Corp, 249 NLRB 284, 286 (1980), citing Triplett Corp, 234 NLRB 985 (1978) 8 The Ninth Circuit , in Whisper Soft Mills, above , states that the Pennco doctrine has "never been embraced by any circuit court and has been re- jected by the four circuits that have considered it," citing NLRB v. Pennco, Inc, above, cert. denied 459 U S. 994 (1982); Soule Glass & Glaz- ing Co. v. NLRB, 652 F 2d 1055 (1st Cir 1981); National Car Rental System v. NLRB, 594 F 2d 1203 (8th Cir 1979); and NLRB v Randle- Eastern Ambulance Service, 584 F 2d 720 (9th Cir. 1978) This broad state- ment by the Ninth Circuit appears to be inconsistent with the holding of the Ninth Circuit's own decision in Pioneer Inn Associates v NLRB, above , and the holding of the Second Circuit in NLRB v. Windham Me- morial Hospital, above 869 the Union's continued majority status flowing from certi- fication and the recently expired contract and the reason- ableness of the Respondent's doubt of the Union's major- ity status. That is an issue of fact. NLRB v. Pennco, Inc., 684 F.2d 340 (6th Cir. 1982). To determine majority status when there is a with- drawal of recognition in a unit where there are strikers and permanent striker replacements, the Board rule is that the numerical size of unit is measured at the time of withdrawal and includes both the permanent replace- ments and all the striking employees. Pennco, Inc., above at fn. 17; NLRB v. Windham Memorial Hospital, 577 F.2d 805 (2d. Cir. 1978); NLRB v. Crimptex, Inc., 517 F.2d 501, 503-504 (1st Cir. 1975). Of course, had the striking employees been lawfully discharged, as Respondent con- tends, the number of employees in the unit would not in- clude the discharged employees. Similarly, when the pas- sage of time and other facts demonstrate that permanent- ly replaced strikers have abandoned their employment, such strikers are not counted for determining unit major- ity. Arkay Packaging Corp., above. Here, of course, nei- ther passage of time nor other evidence show that the strikers, when recognition was withdrawn, abandoned in- terest in their jobs. Beacon Upholstery Co., 226 NLRB at 1368. To the contrary, it is clear that they wanted their jobs at all material times. C. The Striker Replacements as Permanent Employees Before reaching the questions of the rebuttal of pre- sumptions and the evidence regarding the Union's con- tinuing majority status, the first question is whether the six replacement employees are all permanent employees. If not, they may not be counted for unit majority pur- poses. Callahan, La Boda, Roberson, Curp, and Hall all testified that both at the interviews and thereafter (espe- cially because of picket line taunts from the strikers con- cerning the permanency of the replacements' jobs), the replacements were repeatedly told that they were in per- manent jobs. Indeed, in some instances, the names of the strikers whom they were replacing were given. Respond- ent was intent on hiring permanent employees. I, there- fore, find that the six replacements were hired as perma- nent employees and lawfully permanently replaced the six strikers on or before 1 p.m., 9 January 1985. Perma- nently replaced economic strikers are not entitled to rein- statement on demand. Auto Workers Local 259 v. NLRB, 120 LRRM 3102, 3106 (2d Cir. 1985), citing NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379 (1967). Although Respondent contends that immediately prior to its 9 January withdrawal of recognition it had decided to discharge the six strikers for strike misconduct, Re- spondent admitted that there had been no communica- tion, even of the alleged discharge decision, to the strik- ers or to anyone else. I conclude that there had been no discharges of the strikers within the meaning of the Na- tional Labor Relations Act. Similarly, neither the passage of time nor other circumstances indicate that the strikers abandoned their jobs prior to the withdrawal of recogni- tion. Therefore, Respondent may not place itself within the holding in Beacon Upholstery Co., above, in which the good-faith doubt was to be measured was reduced by 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the number of employees who had been lawfully dis- charged; or within Arkay Packaging Corp., above, where the strikers abandoned their jobs; or within any reasona- ble position whereby its uncommunicated desire would affect the number of unit employees for purposes of proving its "good-faith doubt."10 In short, therefore, I conclude that the numerical size of the unit against which Respondent's alleged good-faith doubt of majority status must be measured, is 12 employees: the 6 striking employees and the 6 striker replacements. NLRB v. Crimptex, Inc., above at 503-504; NLRB v. Windham Memorial Hospital, above. It goes without saying that the critical date on which the size of this unit is to be meas- ured, in assessing Respondent's good-faith doubt defense, is the date on which Respondent withdrew recognition of the Union, 9 January 1985, NLRB v. Pennco, Inc., above at 342 and cases cited; and subsequent resignations or other matters affecting the employment of the strikers, or indeed the striker replacements, are irrelevant. NRTA- AARP Pharmacy, above; NLRB v. Windham Memorial Hospital, above. D. Respondent's Rebuttal of the Pennco, Inc. Presumption of the Union Sympathies of the Replacement Employees As Noted above, the Pennco, Inc. presumption con- cerning union sympathies of replacement employees is a rebuttable presumption, l t Arkay Packaging Corp., above; and the presumption is not applicable in exceptional situ- ations such as when strike replacements, over a period of months preceding the withdrawal of recognition, are not contacted by the Union and the Union makes no effort to police the terms of existing contracts, Arkay Packaging Corp., above. NLRB v. Windham Memorial Hospital, above, fn. 11. I credit the testimony of Respondent's president, La Boda, insofar as he testified that all the replacements, and particularly through Curp and Hall, asked Respond- ent, from the beginning of their employment, how to get rid of the Union and how to get rid of the strikers. I fur- ther credit his testimony that he told the replacements he was working with Respondent's counsel to "finalize" a method of getting rid of the pickets. In support of La Boda's testimony, I credit the testimony of Deborah Curp insofar as she testified that the striker replacements were afraid of losing their jobs, were afraid of physical contact occurring between the replacements and the strikers, and, commencing with Monday, 7 January 1985, told this to Respondent's supervisors on a daily basis. As Sandra Hall testified, the replacements spoke to the su- pervisors concerning the strikers returning to their jobs and the strikers' warnings not to mess up the strikers' desks. Hall and others, commencing 7 January, asked La Boda and Callahan whether the jobs were permanent 10 Respondent argues (Br at 44) that Randle-Eastern Ambulance Serv- ice, 230 NLRB 542 (1977), supports, in some way , the position that its good-faith doubt is supported by its uncommumcated decision to dis- charge the strikers made before 9 January withdrawal of recognition. I do not agree Such a conclusion would encourage the basest "bootstrap- ping" and is untenable 11 This presumption long antedates the Pennco case. See Laystrom Mfg. Co., 151 NLRB 1482, 1484-1485 ( 1965). and how long was this going on. I also find that on 7 and 8 January 1985, the pickets called the replacements "scabs" and warned them concerning the permanency of their jobs. This striker hostility, commencing no later than 7 and 8 January, the replacements being fearful of hostile pick- ets, the permanency of their jobs and their physical well- being, communicating these problems to the Respond- ent's management, inquiring how long it was going on and how they might get rid of the pickets and the Union, all demonstrate convincing, objective evidence sufficient to rebut the Pennco presumption that the replacement employees favored the Union in the same ratio as the strikers. It is not necessary, it seems to me, to have each and every one of the replacements testify concerning their participation in individual conversations. Rather, it is sufficient if the credible evidence, as here, relates to at least a majority of the replacements and their union atti- tudes. See Roza Watch Corp., above. The presumption having been rebutted, I further find that the evidence, including Callahan's emphatic testimo- ny (Tr. 205-206), shows that the five striker replace- ments hired before 9 January were antiunion . Regarding the sixth, Mari Ann Rasmussen, there is no evidence concerning her union attitude or sympathy in the crucial period between the time she became a unit employee (1 p.m.) and the time Respondent withdrew recognition (2:30 p.m.) both on 9 January 1985. Odd Fellows Rebekah Home, 233 NLRB 143, 145 (1977). Thus, while the Pennco presumption affecting Rasmussen (i.e., that, in substance, Rasmussen is presumed to be prounion) has been rebutted, I cannot find, on this record, that Rasmus- sen held any particular attitude concerning the Union, much less that, in the above crucial period before Re- spondent withdrew 'recognition, she communicated to anyone, or Respondent knew of, her union attitude in any way. Her union attitude or sympathy, if any, ex- pressed after Respondent withdrew recognition, may well have been affected and, of course, is irrelevant. See NLRB v. Gentzler Tool & Die Co., above, and cases cited; Odd Fellows Rebekah Home, above; Thomas Industries, 255 NLRB 646, 647 (1981), enf. denied on other grounds 687 F.2d 863 (6th Cir. 1982). E. Respondent Fails to Rebut the Presumption of the Union's Continuing Majority Status In the first instance, the burden rests with the General Counsel to establish the Union's status as majority repre- sentative, through rebuttable presumption or otherwise. NLRB v. Tragniew, Inc., above at 672; Pennco, Inc., 250 NLRB at 717. Here, the General Counsel's prima facie case of the presumption of the Union's majority status on 9 January is established both by virtue of the 1978 certi- fication, Pennco, Inc., 250 NLRB at 716 and cases cited in fn. 3, and the collective-bargaining agreement that ex- pired on 31 December 1984, Roza Watch Corp., above at 286 (1980). The burden of proof then shifts to the em- ployer, who may rebut the presumption of majority status with less than proof that a union lacks actual ma- jority support by establishing objective evidence forming a reasonable basis for a good-faith doubt of that status. TUBE CRAFT, INC 871 However, in light of the policies underlying the pre- sumption of continuing majority status, the employer's burden is a heavy one. Pennco, Inc., 250 NLRB 716- 717.12 As above noted, the courts require that evidence in support of the employer's good-faith doubt of contin- ued majority status be not only "objective" but "clear, cogent and convincing," NLRB v. Tragniew, Inc., above; Pioneer Inn Associates v. NLRB, above, and NRTA-AARP Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975). In the instant case, for purposes of determining the lawfulness of the 9 January withdrawal of recognition, the unit comprises 12 employees: 6 permanent replace- ments and 6 strikers. There is no dispute, on this record, and I find that on that date, and at all tunes, the strikers maintained their full allegiance to the Union. Indeed, on the very afternoon following withdrawal of recognition, when Union Representative Gromofsky polled the strik- ers, they told him that the strike was just and that the strike would continue. Likewise, as above noted, I am satisfied that, based on the credited testimony of Calla- han, La Boda, Roberson, Curp, and Hall, five of the re- placement employees openly showed themselves, by con- duct, if not solely by antiunion statements, to have mani- fested objective interests contrary to the Union's interest. The replacements wanted to keep their jobs and if the Union returned, consistent with the union taunts, they openly feared that they might well be replaced. That was their explicit fear expressed to President La Boda and Executive Vice President Callahan. They also asked how to get rid of the Union and the pickets. 113 The prob- lem of the allegiance and sympathies of Mari Ann Ras- mussen, however, remains. I credit Respondent's testimony that, though she was interviewed as early as 10 a.m., Rasmussen was not hired as a permanent employee until about 1 p.m. on 9 January 1985. The subsequent 9 January meeting between Re- spondent and the Union, at which Respondent withdrew recognition, occurred about 2:30 p.m. Rasmussen, there- fore, was employed no more than 2 hours (and perhaps as little as 1-1/2 hours) between the time she became a 12 Again, we are no longer dealing with the other Pennco presumption (of the union 's sympathy of replacements) 1 a Even in the absence of corroboration by Curp and Hall, I have credited Callahan and La Boda that these employees made statements against the Union before the 9 January withdrawal of recognition More important, I find that the totality of replacement employee conduct, in the face of taunts from a hostile union picket line before withdrawal of rec- ognition can, and does, demonstrate "clear, cogent and convincing evi- dence" to support Respondent's heavy rebutting burden of proof Pennco, Inc, 250 NLRB at 717 Nonetheless, because the replacements' conduct is a fact, lust as antiunion statements are facts , I have drawn the inference from their conduct that they were antiunion In this regard , therefore, the General Counsel's citation of Forbidden City Restaurant, 265 NLRB 409 (1982), is rendered distinguishable There, supervisors ' unsupported state- ments regarding the sympathies of unnamed employees comprising one- half the unit were held insufficient to support the employer 's burden The rule is that "at least 50 percent of the unit employees [must] have volun- tarily expressed antiunion sentiments [in order to] raise a reasonable doubt regarding the Union 's continuing majority status " Forbidden City Restaurant , above at 411 There is language in Stormor, Inc, supra, 268 NLRB at 867, cited by Respondent , which, at first blush , is inconsistent with the 50-percent rule Stormor, Inc, is distinguishable on its facts, the most significant of which are that in Stormor, Inc, unlike the instant case, the number of replacements together with returned strikers far exceeded the number of sinking employees , and the Stormor unit exceeded 100 em- ployees See below permanent replacement employee and the time that At- torney Bishop read the communication to the Union in which Respondent withdrew recognition and refused to bargain with the Union. It is true that La Boda testified that from the begin- ning of their employment, the replacements asked him how to get rid of the Union and how to get rid of the pickets. Even in the absence of explicit employee cor- roboration, and contrary to the General Counsel's argu- ment (Br. at 10-12), I have credited his testimony. I note, however, that on cross-examination, aside from the vehement antiunion attitudes of replacements Curp and Hall, La Boda could not recall which employees said certain things and, particularly, when they uttered their antiunion remarks. This cross-examination resulted from La Boda's and Callahan's emphatic testimony that the employees' antiunion statements all occurred before 9 January 1985. Of course, Rasmussen was not hired until after noon on 9 January 1985. 1 must conclude from Cal- lahan's and La Boda's insistent testimony, that various employees ' statements against the Union occurred before 9 January and thus flowed from replacements other than Rasmussen, who was not hired until after noon on 9 Jan- uary. Rasmussen did not testify at the hearing nor did any testimony, from any source, bear on her union attitude. The only record remotely related to Rasmussens' union sentiments occurred in the cross-examination of replace- ment of John Roberson. Roberson testified that the re- placement employees told Vice President Callahan on 7 and 8 January of the taunts of the pickets (concerning the replacements' status), but he placed Rasmussen as among the employees making these statements at that time. If Rasmussen was present, Roberson's testimony that these replacement employee meetings with Respond- ent occurred on 7 and 8 January must manifestly be in- correct. If his recollection that Rasmussen was present was accurate, then these replacement employee conver- sations with Callahan, to the extent they relate to Ras- mussen's union attitudes, occurred either after 9 January (in which case they would be legally irrelevant) or they could have occurred in the crucial 2-hour period be- tween the time of her 9 January hiring and the time Bishop, about 2:30 p.m., read the withdrawal of recogni- tion to the Union on 9 January. Although I believe that the credited testimony of Re- spondent's supervisors and the testimony and conduct of three replacement employees demonstrate objective an- tiunion attitudes of all employees, see Roza Watch Corp., supra, 249 NLRB at 284, I cannot say that there is any evidence in the record, much less evidence that meets the mandated higher legal test of "clear, cogent and con- vincing," NLRB v. Pennco, Inc., 684 F.2d 340, 342 (6th Cir. 1982), cert. denied 459 U.S. 994 (1982), NLRB v. Tragniew, Inc., above, to show that Rasmussen, in this very brief 2-hour period, demonstrated or expressed an antiunion position, or that Respondent's supervisors, based on any objective evidence, reasonably believed she held an antiunion position. Because of this failure of proof, and notwithstanding that Rasmussen on 9 January may have crossed a hostile 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picket line or may have expressed anti-Union sentiments in the irrelevant period after the witdrawal of recogni- tion, Odd Fellows Rebekah Home, 232 NLRB at 144; NLRB v. Pennco, Inc., above, I conclude that Respond- ent was in possession, at or about 2:30 p.m. on 9 January 1985 (when it withdrew recognition from the Union and thereafter refused to bargain with it) of objective, con- vincing evidence that , at most , five of the six permanent replacements were antiunion . In these circumstances, at the time it withdrew recognition, Respondent was thus in possession of objective evidence that exactly 5 of the 12, legally relevant members of the appropriate unit were antiunion . NLRB v. Crimptex, Inc., above; NLRB v. Windham Memorial Hospital, above; see Stormor, Inc., above. Such circumstances constrain me to conclude, as I do, that Respondent has thus failed to adduce any evi- dence, much less "clear, cogent and convincing evi- dence," to rebut the presumption of the Union's contin- ued majority status by establishing either the Union's actual loss of majority or objective evidence forming a reasonable basis for a good-faith doubt of majority status as required by the Board, Odd Fellows Rebekah Home, above at 145; and the courts of appeal, NLRB v. Pennco, Inc., supra at 717; Whisper Soft Mills v. NLRB, above at 1381. Here, Respondent's precipitate withdrawal of recogni- tion occurred at a time when it still had insufficient evi- dentiary ammunition to support an assault on the Union's presumptive status. Thus, Respondent's citation of Stor- mor, Inc., 268 NLRB 860, does not support a contrary position. There, repudiation of the Union by merely 20 percent of the nonstriking employees was coupled with testimony that other groups of permanent replacements and nonstrikers repudiated the Union. This testimony re- butted both the Pennco ratio presumption and the pre- sumption of majority status. Here, the ratio presumption has been effectively rebutted. The record shows that, at most, 5 of the 12 unit employees were antiunion. Thus, Respondent has failed to support the second wing of its rebutting burden-loss of actual majority. The remaining question is Respondent's good-faith doubt. Here, unlike Stormor, Inc., supra, the unit is not 155 but merely 12 employees. Here, Respondent had pre- cise knowledge of the replacements' union attitudes in this small unit. Here, unlike Stormor, Inc., there is no 3- 1/2-month period of violence against which to measure the sympathies of otherwise silent striker replacements. Most important, here, unlike Stormor, replacements and nonstrikers did not exceed the number of strikers. Rather, here, Respondent had good, objective reason to believe that its five replacements appeared to be antiunion; that the six strikers were emphatically prounion; and that it knew nothing of Rasmussen's position. The record shows nothing of any Rasmussen confrontation with pickets, picket line taunts, or any other circumstantial evidence from which it could infer her attitude. If Respondent argues (Br. at 31) that the Board should adopt the pre- sumption that striker replacements should be ipso facto presumed to not support the Union, National Car Rental Systems v. NLRB, 549 F.2d 1203 (8th Cir. 1979), Soule Glass Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981), such argument must be addressed to the Board. Such argu- ment, I have noted, is academic here, since the ratio pre- sumption has been rebutted. Here, the pivotal question is whether Respondent, in a small unit, can prove good- faith doubt when it has actual knowledge of the sympa- thies of only a minority and is not aware, by hearsay or otherwise, of the sympathies of a majority. Because of the Board's and courts' declarations concerning the policy underpinnings of the strength of the presumption of majority status , I hold that it may not. I am, therefore, further constrained to conclude (a) that Respondent failed to rebut this presumption of the Union's majority status: that the presumption of continu- ing majority remains intact; that on 9 January 1985, Re- spondent withdrew recognition of the Union as the certi- fied statutory representative in the above-appropriate unit at a time when it did not have any objective evi- dence forming a reasonable basis of a good-faith doubt of the Union's majority status; (b) that on January 1985, by withdrawing recognition of, and refusing to bargain with, the Union, Respondent violated Section 8(a)(5) and (1) of the Act; and (c) that the economic strike of 2 Jan- uary 1985, by this very act, was converted into an unfair labor practice strike on 9 January 1985 because the un- lawful withdrawal of recognition had the effect, as al- leged, of prolonging the strike, which remains in effect as of the hearing. Bay Area-Los Angeles Express, 275 NLRB 1063 (1985); Sanderson Farms, 271 NLRB 1481 (1984).14 CONCLUSIONS OF LAW 1. Tube Craft, Inc., Respondent, is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, District 28, and Local 8703, United Steelworkers of America are now, and each of them has been , at all material times, a labor organization or labor organizations within the meaning of Section 2(5) of the Act. 3. The following unit of Respondent's employees con- stitutes a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All clerical employees excluding confidential em- ployees and professional employees, guards and su- pervisors as defined in the Act and all other em- ployees of Respondent employed at its Cleveland, Ohio plant. 4. Respondent has failed to prove that at any material time on and after 9 January 1985, the Union, by virtue of Section 9(a) of the Act, is not the exclusive representa- tive in that unit for the purposes of collective bargaining 14 As the Board observed in Sanderson Farms, above at 1481 , what had previously been a mere economic strike to force the Respondent to agree to economic terms was of necessity converted to a strike to force the Respondent to grant to the Union the recognition to which it was entitled None of the issues facing the parties could be resolved in any way absent the Respondent's recognition to the Union Therefore , we conclude that the strike became unfair labor practice strike on 9 August when the Respond- ent withdrew recognition and informed the Union that it was unilat- erally changing wages We shall, accordingly, order the Respondent to reinstate unfair labor practice strikers on their unconditional offer to return to work TUBE CRAFT, INC. with respect to rates of pay, wages , hours of employ- ment , and other terms and conditions of employment; or that the basis of clear , cogent , and convincing evidence, entertained a good-faith doubt of the Union 's representa- tive status. 5. Respondent , by withdrawing recognition and there- after refusing to bargain with the Union in the above-ap- propriate unit , on 9 January 1985 violated Section 8(a)(5) and (1) of the Act. 6. By engaging in the unfair labor practices described above in paragraph 5, Respondent prolonged the eco- nomic strike in which the Union engaged , commencing 2 January 1985 , and converted the strike, commencing 9 January 1985 , into an unfair labor practice strike. 7. The unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed viola- tions of Section 8(a)(5) and (1) of the Act, I shall recom- mend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the purposes and policies of the Act, including that Respondent, on the Union 's request , recognize and bar- 873 gain with the Union in good faith regarding the appro- priate above-described unit, and to post the appropriate notice. Having found that the 2 January economic strike was converted on 9 January 1985 into an unfair practice strike , I shall recommend to place the unfair labor prac- tice strikers in a position protected by the Act should they make an unconditional offer to return to work. Such a protected position must be consistent with my conclusions, above, that by 9 January, all six strikers, then engaged in a mere economic strike, had been per- manently replaced. Industrial Workers Local 289 v. NLRB, 476 F.2d 868 fn. 23 (1973). Nevertheless, any such striker, for whom there is no immediate employ- ment because the replacement is in situ shall be placed on a preferential hiring list. See Whisper Soft Mills, 267 NLRB 813, 819 (1983), enfd. 577 F.2d 805 (1978). On de- parture of the permanent replacements , the strikers, if there be vacancies, shall be hired before others. NLRB v. Crimptex, Inc., supra, 517 F.2d at 503-504; NLRB v. Fleetwood Trailer Ca, above. Backpay shall be computed in the manner as set forth in F W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.]