Bums International Security Services, Inc.

BURNS INTERNATIONAL SECURITY SERVICES 271 Bums International Security Services , Inc. and Local 63, International Guards Union of America. Case 27-CA-4081 June 29, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On August 13, 1975, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent that they are consistent herewith. The record shows that the Charging Party, Local 63, International Guards Union of America (herein- after the Union) was certified by the Board on June 25, 1971, as the bargaining representative of a unit of the Respondent's full-time and regular part-time guards in the States of Colorado and Wyoming. Thereafter, the Union and the Respondent entered into two successive 1-year collective-bargaining agreements. The second agreement was executed on April 10, 1973, and, with provisions for retroactivity, was effective from December 3, 1972, until Decem- ber 3, 1973. In response to the Union's request that negotiations for a new contract begin on October 8, 1973, the Respondent, through its national director for industrial relations, John Geraty, responded in a letter dated October 1, 1973, that he had a good-faith doubt as to the Union's majority status and intended to file an RM petition. Such a petition was filed the following day and the Respondent advanced a num- ber of contentions in support of the petition.' Specifically, the Respondent alleged as follows (1) The Employer has been requested to bargain with Local #63, IGUA, per the attached undated letter received about ten days ago (2) On December 3, 1972, after the completion of negotiations, the negotiating committee for the above Union, composed of Local #63 IGUA officers, resigned their guard employee jobs with the Employer and to this date the Employer has no word that there has been any election in the Local in which new officers were, in fact, elected (3) As of September I, 1973, the Employer has approximately 300 guard employees, only 65 of whom were employed at the time of the aforesaid NLRB election , which means a turnover of employment of almost 80% On October 3, 1973, a decertification petition was filed by an employee. Both petitions (RM and RD) were held in abeyance pending expiration of the Union's collective-bargaining contract. Thereafter, on December 17, 1973, the Regional Office notified the petitioner-employee in the RD case that the showing of interest had been checked against the list of employees furnished by the Respondent and re- vealed that "the showing of interest is deficient by 14 names." The petitioner-employee was further advised that unless "14 or more signed and dated employees' authorization cards" were received by December 21, 1973, the RD petition would be dismissed . As far as the record shows there was no reply and, on January 2, 1974, the RD petition was dismissed for want of adequate support. On the same day, January 2, 1974, the Regional Director advised the Respondent, with regard to its RM petition, as follows: The information submitted in support of the subject petition is not sufficient to meet the re- quirements set forth in U. S. Gypsum. Specifi- cally the Employer's ignorance of Local Union officers, high turnover, the filing of not one for- mal grievance, failing to file reports required by the Labor-Management Reporting and Disclo- sure Act, resistance of agency sbop provision, and an undisclosed number of oral complaints fail to demonstrate any reasonable grounds for concluding that Local 63, International Guard Union of America no longer represents a major- ity of the unit employees. The employee petition for decertification has been dismissed. Please be advised that you have 48 hours fol- lowing this notification to provide this office with the necessary evidence. Geraty interpreted the letter as meaning that he had 48 hours within which to document "undisclosed number of oral complaints" referred to in the letter. (4) The Union has filed but one grievance during the past twelve months which was simply an attorney 's letter rather than a formal filing per the grievance procedure set forth in the collective -bargaining agree- ment (5) An August 1973, check at the Bureau of Labor-Management and Welfare Pension Reports offices in Silver Spring , Maryland, reveals no filing by the aforesaid Union of the annual required form (6) The collective bargaining agreement with Local #63, IGUA, that expires December 3, 1973 contains an agency shop provision (7) The Union has announced that a guard employee is seeking to obtain a decertification election as evidenced in a letter received about one month ago, a copy of which is attached (8) The Employer has received various oral complaints and criticisms about this union from guard employees in the last six months In view of the foregoing, the Employer has reasonable cause to believe that the said Union has lost its majority status and that this is sufficient objective consideration under U S Gypsum Co, 157 NLRB 652 for the Board to process the attached petition 225 NLRB No. 40 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, he contacted the Respondent's branch manager in Denver, Troy Marsh, and over the tele- phone instructed him that the employees who had previously complained about the Union should be given an opportunity to express their opinions in writing, if they so desired. He also instructed Marsh that the employees were not to be interrogated, pres- sured, or pushed and that they were not required to write anything. Thereafter, Marsh relayed Geraty's instructions to his supervisors or agents who ap- proached a number of employees, including some who possibly had not complained about the Union. As the record shows, these instructions were car- ried out; a number of employees were asked to give their written opinions and many, some 25 or 30 em- ployees, were flatly requested to state their views re- garding the Union, or unions in general, "pro or con." Also, the employees were not told the reasons why the letters were requested, nor were employees told that their responses would be kept confidential; that they would not be read by their supervisors; that the Respondent would not keep a record of their re- sponses, pro or con; or that any record would be kept of those who did not care to respond. On the other hand, the record shows that no employees were threatened, coerced, or intimidated into cooperating. In all, about 50 open letters, generally critical of the Union's dues and the Union's lack of interest, were received by the Respondent and taken to the Regional Director. In a letter dated January 17, 1974, the Regional Director acknowledged receipt of the letters and stated that following an investigation the objective considerations "do not provide reasonable grounds that the Union has lost its majority since certification [and that] further proceedings are not warranted at this time." Thereafter, the Respondent appealed the Regional Director's decision to the Board. On March 20, 1974, the Board, in a ruling on administrative appeal, "concluded that the [Respondent] alleged sufficient objective considerations to warrant further pro- cessing of the petition. The Board hereby reinstates the petition and the Regional Director is directed to proceed accordingly." However, the instant charges were filed 5 days lat- er. The complaint issued almost a year later, on March 5, 1975, and by letter 1 month later the Re- gional Director notified the Respondent that as there was merit to the allegations of the complaint the RM petition was being dismissed. However, he noted that the petition could be reinstated after disposition of the unfair labor practice proceeding. The Administrative Law Judge dismissed the com- plaint and found that the Respondent had lawfully withdrawn recognition from the Union and solicited responses from its employees in January 1974. We disagree. In determining whether Respondent's withdrawal of recognition violated the Act, the General Counsel in his brief correctly noted the pertinent standards by which the Board determines whether an employer's withdrawal of recognition from an incumbent union is permissible. Under these rules, as set out in the Board's decision in Celanese Corporation of America,2 a certified union, upon the expiration of the first year following its certification, enjoys a rebuttable pre- sumption that its majority representative status con- tinues. The presumption also continues to apply after the expiration of a collective-bargaining agreement.' Furthermore, the existence of a prior contract is suf- ficient to raise a dual presumption of majority, first that the union had a majority status when the con- tract was executed, and second that the majority con- tinued at least through the life of the contract.' These presumptions may be rebutted, however, by evidence establishing that the union no longer enjoys majority representative status. Also, even without such a showing of loss of majority, an employer may refuse to bargain if he relies on a reasonably based doubt as to the continued majority status of the union. As to a reasonably based doubt, two prerequisites for sus- taining that defense are that the asserted doubt must be based on objective considerations 5 and such doubt must be raised in a context free of unfair labor practices 6 Applying these principles, it is clear that when, on October 1, 1973, the Respondent notified the Union that it would not participate in renegotiation of the then current contract, which was to expire 2 months later in December 1973, the Union was entitled to a presumption of majority status. Therefore, as the Re- spondent announced, on October 1, 1973, that it doubted the Union's majority status, it was the Respondent's burden to show either that the Union had, in fact, lost its majority status or that the Re- spondent had, on the basis of objective facts, a rea- sonable doubt about that status. When the Respondent filed its RM petition, it re- 2 95 NLRB 664 (1951) See Ray Brooks v N L R B, 348 U S 96, 104, In 18 (1954), citing Celanese with approval 3 See Barrington Plaza and Tragnrew, Inc, 185 NLRB 962 (1970), enforce- ment denied on other grounds sub nom N L R B v Tragnrew, Inc, and Consolidated Hotels of California, 470 F 2d 669 (C A 9, 1972) 4 Shamrock Dairy, Inc, Shamrock Dairy of Phoenix, Inc, and Shamrock Milk Transport Co, 119 NLRB 998, 1002 (1957), and 124 NLRB 494 (1959), enfd 280 F 2d 665 (C A D C ), cert denied 364 U S 892 (1960), Ref-Chem Company, and El Paso Products Co, Individually and as Co-Employers, 169 NLRB 376 (1968), enforcement denied 418 F 2d 127 (C A 5, 1969) See also Barrington, supra, 185 NLRB at 963 5 N L R B v Gulfmont Hotel Company, 362 F 2d 588 (C A 5, 1966), enfg 147 NLRB 997 (1964) 6 Nu-Southern Dyeing & Finishing, Inc, and Henderson Combining Co, 179 NLRB 573, In 1 (1969), enfd in part 444 F 2d I I (C A 4, 1971) BURNS INTERNATIONAL SECURITY SERVICES 273 lied on an alleged good-faith doubt, as shown above, and made the following assertions to support its posi- tion. 1. After the completion of negotiation on the pres- ent contract the Union's negotiating committee alleg- edly resigned, leaving the Respondent uninformed as to the election of new officers. However, the record shows that the contract then in effect, executed on April 10, 1973, was signed by William Bradley, Jr., president, on behalf of the Union. Moreover, Branch Manager Marsh admitted that before October he had been informed in writing that Bradley was the Union's current president. Also, before October 1, 1973, Marsh knew that employee Martin Smith was the Union's vice president. Marsh testified that he either informed Geraty of this information, or was sure that Geraty knew it. Also, before October 1, the Respondent admittedly knew that the Union's attor- ney was representing certain employees against the Respondent in a civil action eventually tried in the Denver City and County Court on November 12. Against this evidence, the Respondent now alleges that it was not notified of the election or appoint- ment of stewards as required by the contract, but that circumstance, if true, was not one of the reasons relied on by the Respondent when it refused to bar- gain with the Union on October 1. 2. Since the 1971 election all but 65 of the Respondent's approximately 300 employees had left the Respondent. But absent more, we have "long held that new employees will be presumed to support a union in the same ratio as those whom they have replaced." Laystrom Manufacturing Co., 151 NLRB 1482, 1484-85 (1965), enforcement denied 359 F.2d 799 (C.A. 7, 1966). 3. The Union filed one grievance within the past year and that was not a "formal" grievance under the contract. This circumstance would be more signifi- cant if, as the General Counsel notes, there were evi- dence that the Union failed or refused to represent a grievant. Moreover, as stated above, the Respondent was aware that the employees in their lawsuit were represented by the Union's attorney. 4. The Respondent found that as of August 1973 the U.S. Department of Labor had no record of the Union's labor-management report. However, as Ger- aty admitted, he only found that there was no report for the year 1972. In any event, reliance on the fail- ure to file such reports does not meet the issue of the union majority. 5. The Respondent had discovered by October 1 that 1 month earlier an employee had sought to ob- tain a decertification election. Eventually, an RD pe- tition was filed on October 3, 1973, and was dis- missed in January 1974 for want of adequate employee support. The petition was short 14 signa- tures of the necessary 30 percent of employees in the unit. In any event, on October 1, the Respondent admittedly had no knowledge that a petition would be filed. 6. The Respondent alleged that it had received "various oral complaints and criticisms about this Union." But the Respondent offered no evidence to substantiate whether employees desired abandoning the Union and, if so, how many of them supported such action. Later, as we discuss below, the Respon- dent did attempt to substantiate its claim by polling employees who allegedly had previously complained about the Union. But, as the Respondent conceded, well under 50 percent of the bargaining unit partici- pated in the poll. Thus, taking the Respondent at its word, it appears that even 3 or 4 months later less than a majority of the employees had made known their dissatisfaction with the Union. Furthermore, it is significant that there is no evidence that the em- ployees' dissatisfaction had caused them to desire that the Union no longer represent them. Criticism of the Union cannot be equated with repudiation of it. 7. Finally, the Respondent also stated that it had received a written request to commence bargaining on October 8, 1973, and that the present contract, containing an agency shop provision, was due to ex- pire on December 4, 1973. We fail to see how these circumstances support the Respondent's position. The foregoing constitute the Respondent's reasons for asserting a good-faith doubt as to the Union's majority status as of October 1, 1973. Considered separately or as a whole we find that these assertions fail to rise to the level of "objective considerations" sufficient to rebut the Union's presumption of con- tinued majority status. We reach this result because, as shown, these assertions in many respects are either irrelevant, groundless, inaccurate, or simply not re- sponsive to the question whether a reasonable doubt existed that the Union still had majority support. Re- spondent made no effort before refusing to bargain on October 1, 1973, to determine to what extent dis- satisfaction with the Union had caused employees to desire that the Union not represent them. The other reasons relied on by Respondent to establish a basis for reasonable doubt do not support that position. Subsequently, in January 1974, Respondent sub- mitted to the Regional Director letters and signed statements from some 50 employees in support of its assertions of employee disaffection with the Union. There were some 300 employees in the bargaining unit. Assuming, contrary to our finding below, an absence of any unlawful conduct, the fact that about one-sixth of these employees critical of the Union readily submitted written statements to that effect, 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the period prescribed by the Regional Direc- tor, is not insignificant, and might warrant further investigation by the Regional Director.' Thus, the Board on March 20, 1974, reinstated for further pro- cessing the petition which the Regional Director had dismissed. The Board's action determined only that the evidence submitted was sufficient to warrant fur- ther investigation, and did not determine such evi- dence was a sufficient objective basis for a reason- able doubt that the Union represented a majority of the employees. Finally, we have considered the Respondent's fur- ther evidence in support of its assertions of wide- spread complaints about the Union. The evidence is critical statements about the Union, but it does not show that the critical employees wanted no further representation by the Union. But even if it did, and even if this later obtained evidence could support Respondent's doubt asserted 3 months before, we find, as set out below, that such evidence was coerced and may not be relied on by the Respondent to support its position. Accordingly, we find that the Respondent refused to bargain with the Union on October 1, 1973, and thereafter in violation of Section 8(a)(5) of the Act. The Administrative Law Judge found that the Re- spondent did not poll its employees within the mean- ing of Struksnes 8 when, in early January 1974, it asked them if they would be willing to express their views regarding the Union, either pro or con. More- over, he concluded that even if Struksnes did apply the General Counsel had the burden of proving that the Respondent's polling was carried out without the necessary safeguards and assurances. Finally, the Administrative Law Judge reasoned that, at least with regard to employee Warren Graham, the Board's objective standard for measuring alleged coercion should not be applied because Graham was a doctor of philosophy whose letter did not specifi- cally appear to have been coerced. Finally, the Ad- ministrative Law Judge implicitly found that the Re- spondent, given only 48 hours within which to document employee complaints, acted prudently and "could [not] have done otherwise." 7 The Administrative Law Judge, however, attached greater significance to these letters than is warranted Thus, he found that the Respondent's petition would have been adequately supported if 30 percent of the employ- ees had written such letters This is obviously an erroneous view of the law, since dissatisfaction with, or criticism of a union does not amount to its repudiation by the critic The Administrative Law Judge's arithmetic is also mistaken The 30-percent showing is required for petitions filed by employ- ees See Sec 9(c)(1) An employer petition , under Sec 9(c)(1)(B), requires no such percentage showing 0 E Felton d/b/a Felton Oil Company, 78 NLRB 1033, 1035-36 (1948) 8 Struksnes Construction Co, Inc, 165 NLRB 1062 (1967) We disagree with the foregoing analyses and con- clusions for several reasons. To begin with, we find the Administrative Law Judge's effort to distinguish the instant solicitation of opinions for or against the Union from a "polling situation" unpersuasive. Thus, the contention that no poll was taken because only a portion of the employees-generally those 50 to 60 employees suspected of being critical of the Union- participated must fail; for a poll, and the vice in it, is obtaining expressions of attitudes toward the union from individual employees. Respondent's argument that it acted in response to a legitimate need at that time to substantiate its assertion of its doubt of the Union's majority, even if justified (and we do not intimate that it was) by the expressions of dissatisfac- tion it had previously heard, does not excuse the non- secret character of the poll here. As we observed in Struksnes, "any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal and, there- fore, tends to impinge on Section 7 rights." In strik- ing a balance between protection of employee rights and legitimate employer interests we have set forth the following criteria: Absent unusual circumstances, the polling of employees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. [Struksnes, supra, 165 NLRB at 1063.] It is abundantly clear that Respondent's poll did not conform to the foregoing criteria. Thus, employ- ees were not informed of the purpose of the poll; there was no effort to maintain secrecy; and, as we have found, the Respondent was engaging in other unfair labor practices by refusing to bargain with the Union. Furthermore, the Respondent made no effort to assure employees that their written signed re- sponses would not be used for singling them out for subsequent reprisals. In fact, no assurances of any kind were given. The Administrative Law Judge held that the Gen- eral Counsel had the burden of proving that the fore- going criteria were not met. Clearly, this view is con- trary to the entire thrust of Struksnes. For Struksnes holds that such polling is presumptively violative of Section 8(a)(1) of the Act unless the criteria are met. Thus, it is Respondent's burden to establish the affir- BURNS INTERNATIONAL SECURITY SERVICES mative defense that, against a background free from other coercion, its polling was for a legitimate pur- pose, and that employees were made aware of this purpose, were given assurances against reprisal, and were afforded the opportunity to express their views in secrecy. Only when convincing evidence of these elements is adduced does the burden of going for- ward again shift to the General Counsel. Here, in presenting his case-in-chief, the General Counsel elicited credited testimony that the purpose of the Respondent's polling was not communicated to these employees, no assurances "of any kind" were given, and the poll was conducted without any pretense of secrecy. In the main the Respondent of- fered no rebuttal, and this credited evidence stands undenied and uncontradicted on this record. All that the Respondent offered was evidence that no threats or promises were made, employees were not told what to write, and Respondent did not record or tab- ulate the signed written statements. Thus, it is clear that the Respondent did not meet its burden under our Struksnes standards. Likewise, it is no defense to argue. that employees were not, in fact, coerced. As the Administrative Law Judge recognized, the measure of coerciveness of 8(a)(1) misconduct is the objective standard whether such conduct reasonably "tends to interfere with the free exercise of employee rights" rather than whether it succeeded or failed in intimidating individual em- ployees. N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946); Struksnes, supra. Finally, we disagree with the Administrative Law Judge's conclusion that the Respondent was left with no alternative but to proceed in the manner it did after receiving the Regional Director's January 2, 1974, letter. We find no justification in this record for inferring that the Respondent was somehow "invit- ed" to engage in wholesale unlawful interrogation of its employees. And, although time was short, there was ample opportunity for the Respondent to relate the purpose of the poll to its employees, offer assur- ances against reprisal, and guarantee some effective measure of secrecy.9 Based on the foregoing, we conclude that the Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Union on October 1, 1973, and thereafter. In addition, we conclude that the Respondent violated Section 8(a)(1) of the Act by interrogating its employees in January 1974 about their views and sympathies regarding the Union. In view of the foregoing findings, we shall order the Respondent to bargain with the Union and to take other appropriate action as set forth in the Or- der as provided below. ORDER 275 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Burns International Security Services, Inc., Denver and Colorado Springs, Colorado, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Local 63, International Guards Union of Amer- ica, with respect to rates of pay, hours of employ- ment, and other terms and conditions of employ- ment. (b) Interrogating employees concerning their union views and sympathies. ,(c) Polling employees regarding their union views and sympathies without informing them of the lawful purpose of the poll, providing proper assurances against reprisal, and insuring the secrecy of the poll- ing. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Bargain collectively, upon request, with Local 63, International Guards Union of America, as the exclusive bargaining representative of the employees in the appropriate unit and embody any under- standing reached in a signed agreement. (b) Post at its various facilities in Colorado and Wyoming, wherever its employees customarily meet or congregate, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms pro- vided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt there- of, and be maintained by it in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 9 We do not imply that, even with Struksnes safeguards, a poll of 15 to 20 percent of the employees in the unit has any substantial relevance to a reasonable doubt of the Union's majority 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides were represented by their attorneys and presented evidence , it has been found that we have violated the National Labor Re- lations Act in certain respects . To correct and reme- dy these actions we post this notice. WE WILL bargain collectively, upon request, with Local 63, International Guards Union of America, as the exclusive representative of the employees in the appropriate unit described be- low and embody any understanding reached in a signed agreement. The appropriate bargaining unit is: All full-time and regular part-time guards, in- cluding sergeants employed by Respondent in the States of Colorado and Wyoming, but ex- cluding office clerical employees, casual em- ployees, professional employees , and supervi- sors as defined in the Act, including lieutenants and captains. WE WILL NOT interrogate our employees about their union views or sympathies. WE WILL NOT poll our employees concerning their union views or sympathies , without inform- ing them of the lawful purpose of the poll, pro- viding proper assurances against reprisals, and insuring the secrecy of the polling. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. BURNS INTERNATIONAL SECURITY SERVICES, INC. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at Denver, Colorado, on May 6 and 7, 1975. The complaint, issued March 5, 197-5, and based on a charge filed March 25, 1974, by Local 63, International Guards Union of America , herein the Union, alleges that Respondent, Burns International Security Services, Inc., has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Briefs have been duly submitted by the General Counsel and Respondent Upon the entire record in the case, and from my obser- vation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a New York corporation with its principal office and place of business at Briarcliff Manor, New York. It also maintains offices at various other cities in the United States, including Denver and Colorado Springs, Colorado, the situs of the instant dispute . In the latter of- fices Respondent provides security services valued in ex- cess of $100,000 per annum to employers who meet the Board's jurisdictional standards for direct inflow and/or outflow. I find that the operations of Respondent affect commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 63, International Guards Union of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; the Issue The Union was certified on June 25, 1971, in Case 27- RC-4008, by the Regional Director of Region 27 after a duly held election, as the representative of a unit of Respondent's full-time and regular part -time guards in the States of Colorado and Wyoming, excluding office clerical, casual and professional employees and supervisors, lieu- tenants and captains . I find that this was a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) and that the Union then became the representative of those employees within the meaning of Section 9(a) of the Act. Two collective-bargaining agree- ments, each for 1 year, followed. The second was executed on April 10, 1973, for a term expiring December 3, 1973. In an undated letter, the Union requested that negotiations for a new contract commence on October 8. John Geraty, national director for industrial relations for Respondent's some 35,000 employees, responded on October 1 that he had a good-faith doubt as to the Union's majority status. The complaint alleges that , on and after October 1973, Respondent's agents polled and interrogated employees concerning their union sentiments and solicited their union withdrawals, that Respondent engaged in these acts in or- der to undermine the Union's majority, and that it refused thereafter to honor its bargaining obligations within the meaning of Section 8(a)(5) and ( 1) of the Act. Respondent's position is that it developed a good-faith doubt, with ample support, as to the continuing majority status of the Union and accordingly filed the RM petition described below. This convoluted proceeding involves other Board mat- ters, including two representation proceedings before the Regional Office upon which Respondent relies. It is neces- sary, therefore, in my judgment, to treat therewith It ap- pears that on October 3, 1973, a guard employed by Re- spondent had filed a decertification petition in Case 27- BURNS INTERNATIONAL SECURITY SERVICES 277 RD-297 with 70 signatures and this was dismissed on Jan- uary 2, 1974, because of an inadequate showing of interest, apparently 14 votes less than the 30-percent showing cus- tomarily required in both RC and RD cases. See Section 101.18 of the Board's Statements of Procedure. What is perhaps more relevant is the long history of the RM case. Respondent filed such a petition on October 2, 1973, in Case 27-RM-411. This was accompanied by a letter to the Regional Director dated October 1, 1973, wherein Respondent advanced a number of arguments as to why the RM petition should be entertained, these in- cluding: All officers of the Union had resigned from the em- ployment of Respondent on December 13, 1972, and Respondent had not been advised of any new officers. As of September 1973, only 65 of its approximately 300 guards had been employed as of the time of the election. The Union had filed only one grievance during the previous 12-month period but this was a letter from an attorney and not filed pursuant to the grievance pro- cedure in the contract. As of August 1973, the Union had not filed the an- nually required forms with the Bureau of Labor-Man- agement and Welfare Pension Reports in Maryland. A reference to the RD petition concerning which Respondent had been kept posted. Lastly, and perhaps most significant, Respondent stated that in recent months it had received oral com- plaints and criticisms about the Union from its guards. Respondent did not receive a sympathetic response from the Regional Director. On January 2, 1974, the latter re- jected the position of Respondent, commenting, inter alia, on the insufficiency of the information and "an undis- closed number of oral complaints." He dismissed the RM petition and gave Respondent 48 hours to procure the "necessary evidence." According to Geraty, and I agree, he assumed that this meant that the Regional Director wanted proof of the oral complaints. It is the procurement of this new evidence concerning the oral complaints that is the substance of the instant complaint. And, on January 17, 1974, the Regional Direc- tor rejected this matter which had been proffered on Janu- ary 11 in support of Respondent's position. Respondent appealed to the Board and, on March 20, 1974, the deputy executive secretary of the Board in a "Ruling on Adminis- trative Appeal" stated that the Board had concluded that the "Employer alleged sufficient objective considerations to warrant further processing of the petition. The Board hereby reinstates the petition and the Regional Director is directed to proceed accordingly"; the instant charge, as noted, was filed 5 days later on March 25. This matter appears to have remained in limbo until April 3, 1975, when, although the conduct attacked herein took place late in 1973 and the instant charge was filed in March 1974, in a letter to Respondent the Regional Direc- tor again dismissed the petition, stating therein that be- cause there had been a determination of merit to the refus- al-to-bargain allegation in the instant case wherein the complaint issued March 5, 1975, "the finding of the exis- tence of a real question concerning representation would be contrary to the statutory scheme of the Act." A foot- note, without further explication, set forth that "This peti- tion may be subject to reinstatement, if appropriate, upon application, after disposition of the unfair labor practice proceeding." No reference was made to the Board's ruling of March 20, 1974. This leaves for consideration the conduct attacked by the General Counsel as well as the subject matter relied on by Respondent, largely identical, in support of the latter's position that it was justified in challenging the Union's ma- jority status. I note at this point that I am not aware that the Board has articulated the percentage of employee sup- port necessary to support an RM petition, unlike the RC and RD cases. At first impression, I am unable to conclude that a different criterion is warranted. B. Concluding Findings The gravamen of the complaint perforce relates to the action taken by Respondent as a result of the January 2, 1974, letter from the Regional Director taking the position, inter alia, that "an undisclosed number of oral complaints" was not a reasonable basis for doubting majority represen- tation and giving Respondent 48 hours to remedy the situa- tion. Respondent promptly acquired some 50 letters from 56 contacted employees and these were forwarded to the Re- gional Director. There is no evidence that Respondent pe- rused this matter or made any tabulation with respect thereto; certainly, with time so much of the essence, this would seem unlikely and there is evidence indeed that this was not done. Geraty for Respondent testified that he assumed that the Regional Director desired proof of the oral complaints. He contacted Troy Marsh, Respondent's branch manager in Denver since August 1973, and instructed him over the telephone that the employees he had previously heard from should be given an opportunity to express a written opin- ion if they so desired . He also instructed Marsh , as he testi- fied, that the guards were not to be interrogated, pressured, or pushed and that they were not to be required to write anything. As noted, 50 letters were duly forwarded to the Regional Director. With commendable candor, counsel for Respondent concedes that it is possible that several guards who had not previously complained orally were contacted on this occasion. Marsh in essence corroborated Geraty. He testified that Geraty telephoned him to the effect that more evidence of employee dissatisfaction was required by the Regional Di- rector and that the guards should be given an opportunity to put their views in writing. Geraty cautioned Marsh that Respondent should bend over backwards to avoid the ap- pearance that it was demanding the letters . These letters are in evidence . Also to be noted is that, while in the Colo- rado Springs office as assistant branch manager through October 1973, approximately 65 employees had com- plained about their dues deductions to Robert Kiefer. At this point, I turn to the testimonial evidence adduced by the General Counsel from guards. Warren Graham worked as a guard for Respondent from December 1973 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through August 1974 in Denver. On or about January 10, 1974, dispatcher Patrick Jacques i asked Graham, a doctor of philosophy temporarily working as a guard, what he thought of unions. Graham, as he testified, responded that he was not enamored of them because of strikes. Jacques then asked Graham if he would write a letter with his views on unions to be picked up by Captain Jones of Burns that night. Graham agreed to do so. Jacques did not tell him why time was of the essence, although manifestly it was, and he did not say why the letter was needed. Graham was not told by Jacques what to put in the letter; he prepared one and turned it over to Captain Jones that evening. The General Counsel asked Graham if he had been giv- en any "assurances of any kind" and his answer was in the negative. Assuming that the General Counsel had in mind the assurances spelled out in a polling situation as an- nounced in Struksnes Construction Company, 165 NLRB 1062 (1967), I conclude (I) this was not under the circum- stances of this case a polling situation; (2) I believe that the burden of proof, assuming "assurances" are in order, is upon the General Counsel; and (3) the Struksnes case is rather specific as to the types of statements to be made to employees and I believe that the conclusory term "assur- ances," standing alone, is not sufficient to meet this bur- den. Graham's views in his letter dated January 10 merit scru- tiny. He stated that, if the employees were paying dues to a labor organization, the latter "should do something for us or drop out of the picture." He next stated that he disap- proved of strikes because strikers would never regain lost wages and the union strike benefit would not be "much." He then expounded that a union and an employer could work out their problems without "being unreasonable" and that he favored a union "without a strike clause." Graham next complained that the employees were un- derpaid because of the dangerous nature of their work. Finally, he stated that their wages were better than receiv- ing none but that a "well run union . . . could do some- thing for a union member without hurting themselves or the employees." I realize that the Board, entirely aside from the special circumstances of this case, customarily uses an objective standard in evaluating testimony in this area. But I fail to see how this letter, on a preponderance of the evidence, reflects a coerced expression from a doctor of philosophy; stated otherwise, I fail to see how one could reasonably conclude that, under all the circumstances, he was coerced. Wesley Underhill has been a guard for Respondent for approximately 6 years and was a sergeant in January 1974; Jacques was his dispatcher. On or about January 10, 1974, upon reporting for work, Jacques asked "us" to write a letter expressing "our opinion" of the Union for a supervi- sor to pick up that night. He also asked him to relay this to two other guards on the same shift. Jacques did not state the purpose of the letter, although, according to Underhill, he may have stated that it was for 1 Respondent contends that he is not a supervisor within the meaning of the Act Be that as it may, I find on a strong preponderance of the evidence that Jacques was acting as an agent for Respondent on this and other occa- sions a hearing on the following day. He also was asked by the General Counsel if he was given "any assurances" with respect to the letter and replied that he recalled none and, furthermore, "I didn't feel there was any necessity." Jac- ques did not tell him what to put in the letter, erroneously dated December 10, and merely asked for his opinion. Here as well, I view the use of the term "assurances" as nebulous in nature in terms of the Struksnes doctrine. Underhill's letter initially stated that he was opposed to the Union for two reasons; namely, a lack of confidence in their manner of organization as well as in their organizers. He did acquiesce in the majority vote for the Union and awaited development. He did give the Union credit upon the signing of the first contract for obtaining benefits, such as paid vacations, a wage increase, and time and one-half for holiday work. Underhill went on to refer to the minus side; namely, his failure to see a single benefit since the first contract despite the $3 monthly dues payment. He added that since the signing of the first contract he was not advised whether a new contract had been signed, although it had been, or if the old one had been extended, but that, in any event, he was unaware of any new benefits. Underhill next stated that he was unaware of any business other than the security business which had not given cost- of-living adjustments over the past 2 years. He next stated that in view of the "lack of achievement over the past 2 years by the Union" he saw no reason why he should con- tinue the "affiliation" and pay the $3 monthly dues. After other discussion, he stated that he had tried to look at both sides of the question. Jacques, it may be noted, testified that he asked some 25 to 30 persons to express an opinion pro or con the Union. Indeed, it was he who had received numerous telephone calls in the evenings prior thereto from guards who asked if the Union was still in the picture and why were they still paying monthly dues. In his discussions with the guards, he flatly asked them to express opinions pro or con and I so find. Chester Yeo worked as a guard in Canon City under the Colorado Springs office from June 1972 to February 1975 under Sergeant John Horst, who has hired personnel and whom I find to be a supervisor. Yeo testified and I find that Horst in January asked him to write a letter about the $3 monthly dues checkoff. Horst stated that Captain Wood at Colorado Springs suggested that such a letter be written. Yeo wrote a letter and gave it to another guard to mail. He as well testified that he was given no "assurances" as to the letter and I view this as I have the previous two letters set forth above. The record indicates also that Horst worked as a guard and paid the $3 monthly dues. Significantly, Yeo was one of those, as he testified, who had previously complained to Sergeant Horst about paying his monthly dues, this being one of the oral complaints adverted to by the Regional Director in his letter to Respondent described above. Horst promised him no benefits in connection with writing the letter. While Yeo had previously complained about the Union, it is interesting to note that in his brief letter dated January 8 he complained of the $3 dues, the fact that he had worked for Respondent for 17 months and that no union representative had ever contacted him. He allegedly BURNS INTERNATIONAL SECURITY SERVICES 279 had been led to believe that the Union sought to improve working conditions, but added that he had no complaints although nevertheless he felt that "the Union could care less." The testimony of Sergeant Horst is on a par with that of Yeo He testified that Captain Wood suggested to him that a letter be written about the $3 dues deduction; he did relay this to other guards and it appears that all mailed these to a Denver address not specified herein. Here as well, no "assurances" were given to him and he gave none to the other men, not identified. Moreover, Horst had previously orally complained to Captain Wood about the so-called service charge or union dues. Indeed, he identified several individuals, including Yeo and Harry Parker, discussed below, who had com- plained to him about their union dues. The letter of Horst, dated January 9, 1974, is indeed brief. He noted that for over 1-1/2 years his dues had been deducted. He stated that he had received "nothing" in return and that the de- ductions were unwarranted because the Union did abso- lutely nothing "for any of us even as much or little as a visit." Finally, the General Counsel put in the testimony of Harry Parker, who had been hired by Horst in December 1972. Horst spoke to him, as Parker testified, about writing a letter on the "service charge." Parker wrote the letter and gave it to another guard to mail. Horst told him that this related to getting out of the "service charge" and gave him no "assurances." Horst did not tell him what to state in the letter. Signifi- cantly, Parker had previously complained to Horst about his union dues and, indeed, had written a previous letter, apparently unmailed, complaining about the situation. Al- though in view of his prior complaints, I deem it superflu- ous to get into his letter, he in essence complained therein that he had neither been contacted by any representative of the Union except to sign a dues-deduction authorization and added that this was grounds to terminate the dues deductions. The theory of the General Counsel is that Respondent coerced the antiunion statements set forth above from its employees. But, as stated, I am at a loss to see how Re- spondent could have done otherwise, after being given 48 hours by the Regional Director to document its position. Indeed, if the letters were prounion, and to some extent they were, the General Counsel could then contend that this refuted Respondent's claim that it had a good-faith doubt about the Union's majority status. In my view, this smacks of a Hobson's choice. The language in a recent decision where the Board in a 2 to 1 decision found a viola- tion is of interest. See Guerdon Industries, Inc., 218 NLRB 658 (1975). The majority there noted that: .. . absent the unfair labor practices we have found Respondent committed on May 1, we would be con- strained to dismiss the complaint allegation alleging an unlawful withdrawal of recognition by Respon- dent. We would also be constrained to dismiss the withdrawal-of-recognition complaint allegation, even where Respondent, in fact, had committed other un- fair labor practices prior to its withdrawal of recogni- tion, if it could be said that those other unfair labor practices were not of such a character as to either af- fect the Union's status, cause employee disaffection, or improperly affect the bargaining relationship itself. It is also of interest to note that the dissent commented that there was Board precedent to the effect that " a small per- centage of employees on checkoff is an indicator of objec- tive consideration to support a doubt of majority support of employees." In view of all the foregoing considerations, I shall recom- mend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Burns International Security Services, Inc., is an em- ployer whose operations affect commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Local 63, International Guards Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation.]