Mid-Continent Refrigerated Service Co.

MID-CONTINENT REFRIGERATED SERVICE COMPANY Mid-Continent Refrigerated Service Company and General Drivers & Helpers Union, Local 554, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and The Employee Committee . Case 17- CA-6937 March 21, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On October 13, 1976, Administrative Law Judge Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order, as modified herein. The law is clear that an employer must have an objective basis for doubting an incumbent union's continued majority status before conducting a poll of employee sentiment.2 Here, neither Kully's testimo- ny, even if credited, that he received employee complaints about the Charging Party's failure to negotiate a new contract nor his testimony that only 5 to 8 of the 18 unit employees signed dues-checkoff authorizations, even when taken together, would have revealed facts sufficient to provide Respondent with the requisite objective basis for entertaining such good-faith doubt. We therefore find that Respon- dent's poll of January 16, 1976, violated Section 8(a)(1) 3 and that Respondent could not use this unlawful poll as a basis for withdrawing recognition from the Charging Party.4 Respondent was therefore not entitled either to refuse to bargain with the Charging Party or to recognize the Employee Com- mittee, and, by these acts, violated Section 8(a)(5) and (2), respectively.5 THE REMEDY We adopt the remedy recommended by the Admin- istrative Law Judge. Nothing in our Order, however, shall authorize or require the withdrawal or elimina- tion of any wage increase or other benefits, terms, and conditions of employment which may have been 228 NLRB No. 98 917 established pursuant to the performance of the contract with the Employee Committee. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Mid-Continent Refrigerated Service Company, Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following for paragraph 1(g): "(g) Maintaining or giving any force or effect to the collective-bargaining agreement between Respondent and the Employee Committee or any extension or modification thereof; provided, however, that noth- ing in this Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employment which may have been established pursuant to the performance of said contract." 2. Substitute the following for paragraph 2(b): "(b) Forthwith rescind and cease giving effect to the collective-bargaining agreement entered into with the Employee Committee, effective as of January 11, 1976, or any renewal or extension thereof. However, nothing in our Order shall authorize or require the withdrawal or elimination of any wage increase or other benefits, terms, and conditions of employment which may have been established pursuant to the performance of that agreement." 3. Substitute the attached notice for that of the Administrative Law Judge. 1 Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Jackson Sportswear Corporation, 211 NLRB 891 (1974); Montgomery Ward & Co., Incorporated 210 NLRB 717 (1974); Liffiston Implement Company, 171 NLRB 221(1968). 3 Jackson Sportswear Corporation, supra, Montgomery Ward & Co., Incorporated supra 4 However, we place no reliance on the Administrative Law Judge's implication that an employee poll otherwise conducted in conformance with the standards set forth in Struksnes Construction Co, Inc., 165 NLRB 1062 (1967), is necessarily unlawful in the absence of a union demand for recognition. 5 We also find that Rasmussen's remark that a better way to negotiate with the Company would be through an independent committee and Stawniak's remarks during the employees' deliberations preceding the poll not only created an atmosphere within which the poll was taken that was coercive but also induced the information of the Employee Committee. 918 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 in which all parties had the opportu- nity to present their evidence, it has been decided by the National Labor Relations Board that we, Mid- Continent Refrigerated Service Company, violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and to abide by the following: Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form,join, or help unions To act together for collective bargaining or other mutual aid or protection To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything to interfere with you in the exercise of the aforementioned rights, and all our employees are free to become or remain a member of Teamsters Local 554, or not to become or remain a member of that or any other union. WE WILL NOT poll our employees in such a manner as to require them to indicate whether or not they desire to be represented by Teamsters Local 554. WE WILL NOT in any manner cause or permit supervisors to participate in any poll of our employees designed to ascertain whether or not our employees desire to be represented by Team- sters Local 554. WE WILL NOT promote or participate in any movement designed to create an employee's committee to act as the collective-bargaining representative of our employees. WE WILL NOT tell our employees that we will bargain with a committee they select if Teamsters Local 554 does not continue as their collective- bargaining representative. WE WILL NOT dominate or assist any labor organization of our employees, or contribute financial or other support thereto. WE WILL NOT recognize or bargain with the Employee Committee created on January 16, 1976, or any successor thereof, as the collective- bargaining representative of our employees. WE WILL NOT apply or in any manner give effect to the collective-bargaining agreement we entered into with the Employee Committee, effective as of January 11, 1976, or to any renewal, extension, modification, or supplement thereof, but we are not thereby required to withdraw or eliminate any wage rates or other benefits, terms, and conditions of employment which we have given to our employees under said contract. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL forthwith withdraw and withhold recognition from and disestablish the Employee Committee as the collective-bargaining represen- tative of our employees, and cease giving effect to the contract we entered into with the said Com- mittee, effective as of January 11, 1976, or any renewal or extension thereof. WE WILL, upon request, recognize and bargain with Teamsters Local 554, as the exclusive collec- tive-bargaining representative of our employees in a unit of all warehousemen and loaders, shipping and receiving employees at our Jones Street and Gomez Avenue warehouses, in Omaha, Nebraska, excluding office clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act, and all other employees, and if agreement is reached, embody the same into a signed written agreement. MID-CONTINENT REFRIGERATED SERVICE COMPANY DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This case, heard before me at Omaha, Nebraska, on June 24,1 with all parties (other than The Employee Committee, which made no appearance) present and duly represented, involves a complaint 2 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein Act), which alleges in substance that Mid-Continent Refrigerated Service Company (herein Respondent or employer); (1) interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act, (2) induced its employees to withdraw from General Drivers & Helpers Union, Local 554, affiliated with International i All dates herein are 1976, unless otherwise noted. s Issued April23 on a charge filed and served January 26. MID-CONTINENT REFRIGERATED SERVICE COMPANY Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Union or Local 554), which had represented the employees for many years, and assisted the employees in accomplishing the withdrawal from Local 554 and the establishment of the committee with which Respondent thereafter bargained, and (3) refused thereafter to bargain with Local 554, in violation of Section 8(a)(1), (2), and (5) of the Act. For reasons hereafter more fully stated, I find that the evidence sustains the allegations of the complaint, and recommend an appropriate remedial order. At the hearing all parties were afforded full opportunity to introduce relevant and material evidence , to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel, Respondent, and the Charging Union, respectively, have been duly considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACT3 A. Background Respondent operates a public cold storage warehouse in Omaha, Nebraska. Originally, the operation consisted of one plant located on Jones Street. Late in 1974, a new building was completed on Gomez Avenue, and since that time it conducted its operations in both locations, with the necessary employees stationed at each. Robert Kully is president of the Company. His office, and that of the entire office staff, is at the Gomez plant, with Kully visiting the Jones plant when he deems such visits necessary. Since about 1964, Respondent's shipping and receiving employees have been represented for collective -bargaining purposes by Local 554, pursuant to a Board certification, and successive contracts were entered into between the Company and the Union. The last such contract was effective from January 11, 1973, to January 10, 1976, and thereafter from year to year unless terminated by notice. By letter dated November 4, 1975, received on November 5, the Union advised Respondent that pursuant to the contract, it was opening the same for negotiations as to wages, hours, and working conditions; would in the near future submit proposals for a new agreement and that a business representative of the Union would communicate with the Company to arrange for negotiations.4 Because of illness and unavailability of office and secretarial help, the Union did not send contract proposals to Respondent until Thursday, January 15. Company President Kully testified without contradiction, that he received the proposals on Tuesday, January 20. The complaint alleges, and the General Counsel con- tends, that on January 16, Respondent called a meeting of its employees, unlawfully polled and induced them to 3 No issue of commerce or labor organization is presented . The complaint alleges and the answer admits facts which establish those elements. The Employee Committee filed no answer to the complaint , hence the allegations thereof as to it are taken as admitted for the purposes of this case. 4 The case presents no issue relating to Sec. 8(d) of the Act. 919 withdraw from the Union, aided and sponsored the formation of an Employee Committee, and upon establish- ment of the same, recognized and entered into a contract with the Committee as the representative of its warehouse employees. Before setting forth the facts relative to the above, it is necessary to resolve a preliminary question, namely, the supervisory or agency status of James Sisco 'and Ray Stawniak, both employed by Respondent at its warehouses. 1. The supervisory issue Since about 1963, and until his employment with Respon- dent ceased in October 1975, Charles Gunderson was superintendent in charge of the warehouse. Initially, Gunderson worked at the Jones plant, but when the Gomez plant opened, his office was moved there, and although he continued to have some responsibility for the Jones plant, he visited that operation only about once a month, to see that it was clean and well kept, Gunderson testified without contradiction that as superintendent he had the authority to and did hire, fire, and reprimand employees; that crew leaders were members of the unit and worked under his supervision, but had no authority to hire, fire, or issue reprimands. Plainly, Gunderson was a supervisor within the meaning of the Act; a conclusion Respondent does not question. Company President Kully admitted that with the depar- ture of Gunderson, Sisco and Stawniak shared equal authority with respect to the two plants; Sisco at the Jones plant, and Stawniak at the Gomez Plant. Although Sisco testified that he did not take over Gunderson's duties until late January, at which time he became a supervisor, and that prior to that he was a "crew leader," 5 he also testified that he assigned the work to the employees at the Jones plant; saw that they properly performed their work, reprimanding them if they failed to do so; and received and acted upon employee requests for time off. Although Sisco testified that he issued reprimands and acted on requests for time off only after clearance with Kully, the fact remains that by permitting Sisco to so conduct himself, Respondent placed him in a posture from which the employees could properly conclude that when Sisco spoke, he did so with the voice of management. Moreover, if Sisco did not possess supervisory authority, there was no supervi- sor at the Jones plant, as there is no evidence that any other person regularly stationed there was vested with such authority.6 The evidence also shows that Sisco in fact hired employ- ees to work at the Jones plant. Employee Regan credibly testified that he worked at that plant from November 1975 to April 1976, and that the circumstances of his hire were as follows: He walked in off the street and asked for a job, speaking with Sisco; the latter told Regan to go to the Gomez plant and file an application which he did; at Gomez, Regan after completing the application form given him by a lady in the office, returned the form to her; after 5 Crew leaders are classified by the contract, as nonsupervisory. 6 Kully, of course, as president of the Company, had general supervision over all operations, but he maintained his office at the Gomez plant, and visited the Jones plant only at infrequent intervals. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examining the application, the lady told him to take it to Sisco; after again talking with Sisco, the latter told Regan that he would be called when needed; that the following morning he received a telephone call from Sisco who directed that he report for work; and that upon doing so, Sisco assigned him to unloading box cases. Regan also testified that the following week he observed Sisco hire Jeff King and Jeff Clark, and assign them to work. Whether the two last mentioned employees first went to the Gomez plant and filed applications, and if so, to whom they were presented, the record does not show. Although Kully claimed that he did virtually all of the hiring, he did admit that in his absence, Wanda Stewart, a clerical in his office, was authorized to review employment applications, and, if in her opinion such action was warranted, to refer the applicant to Sisco or Stawniak, and that the event described by Regan, pursuant to which he obtained employment, was normal procedure for hire iii his absence. The evidence additionally shows that by memorandum dated December 11, 1975, employees Mensik was advised that his probationary period was being extended 30 days because he had missed so much time from work; had not established himself to be a dependable employee; and his work habits had been so relaxed as to not hold up his end of the work load. The memorandum concluded with an expression of hope that the extension would enable Mensik to establish improved work habits so that he might be put on the payroll as a regular employee, and is signed "Jim Sisco, General Foreman." There also appears the signature of Mensik, to acknowledge receipt of the memorandum. Sisco testified that the memorandum was given to him in typed form by Kully with instructions to sign it, give it to Mensik, and obtain the latters signature thereon, which he did.7 The record also contains two memoranda signed by Stawniak regarding personnel action.8 The first dated November 7, 1975, reprimands employee Lisiecki for abusive language, and warns that if it happened again, he would be immediately dismissed. Lisiecki credibly testified that this memorandum was given to him by Stawniak. The other is dated December 23, 1975, and extends the probationary period of employee Dennis Swertzic for work for 2 weeks because he had been late for work too often in the proceeding 30 days to be considered a full-time employee. Although Stawniak did not testify, on the basis of Kully's admission that it was his general practice to draft all such letters and give them to the clerical staff for typing, and then to Sisco or Stawniak for signature and delivery to the employee involved, and his further admission that Sisco and Stawniak had equal responsibilities at the respective plants, I find that both memoranda signed by Stawniak were drafted by Kully, and that he gave them to Stawniak with expressed or tacit instructions to sign and deliver them to the respective employees. r Kully admits that he drafted the memorandum and gave it to a clerical to be typed. He claims, however, not to recall whether he saw the memorandum after it was typed, or whether he gave the memorandum to Sisco, although he admits that he may have done so. KuHy did not impress me as a frank witness. A number of times I got the distinct impression that 2. Conclusions as to supervisor status Upon the foregoing evidence, I find and conclude that at all times material Sisco and Stawniak were supervisors within the meaning of Section 2(13) of the Act, I base this conclusion upon the totality of the following considera- tions: 1. The evidence shows that both men, with only general directions from Kully, responsibly directed the work of the unit employees and supervised their activity. Indeed if Sisco and Stawniak were not supervisors, then the respective plants operated without supervision, as there is no showing that there was any other person on the premises full-time, to perform that function. It defies reason to believe that Respondent intended to permit the two crews to function without on-the-job supervision. 2. The evidence shows that at least Sisco had the authority to and did hire personnel, had the authority to grant time off, and that both had the apparent authority and did reprimand employees regarding the performance of their duties. Although there is no evidence that Stawniak ever hired or granted time off, I infer that he had the authority to do so in view of Kully's admission that both men had equal responsibility at their respective plants. 3. Respondent's contention that neither Sisco nor Stawniak had supervisory authority seems to be based on the theory that it did not "officially" designate them to be supervisors until late January 1976, well after the events here involved, and that prior to such designations, both were crew leaders, a classification fixed by the contract to cover unit employees. This contention is without merit and I reject it. The argument completely loses sight of the fact that job titles are meaningless; it is the authority vested in the employee, be it expressly or by implication, that is the controlling factor. Under the facts of this case, it is plain that Respondent vested apparent supervisory authority in these men, and it was well aware that they were exercising it as Respondent fully intended them to do. 4. Moreover, even were Ito conclude, for some reasons that now completely escapes me, that Sisco and Stawniak did not qualify as supervisors within the meaning of Section 2(11) of the Act, the uncontrovertable fact remains that Respondent held them out to the employees as being representatives of management, and led the employees to believe that when they spoke or acted, they did so in the name of management. The fact that Kully prepared the reprimand letters for Sisco and Stawniak to sign, at least one of which designated Sisco as "General Foreman," and directed them to sign and deliver the letters to the men involved, admits of no other conclusion. As the Supreme Court said in International Association of Machinists; Tool and Die Makers Lodge No. 35, etc. v. N.LRB., 311 U.S. 72, 80(1976): ... where the employees would have just cause to believe that solicitors professedly for a labor organiza- tion were acting for and on behalf of the management, his answers to questions were truthful as far as it went , but that he was holding back for fear that he might say something that would prejudice his case. To the extent that his testimony on this point aught be regarded as in conflict with that of Sisco, I credit the latter. 8 These memoranda do not bear a title following Stawmak's signature. MID-CONTINENT REFRIGERATED SERVICE COMPANY 921 the Board would be justified in concluding that they [the employees) did not have the complete and unham- pered freedom of choice which the Act contemplates. ... to be sure, they [the solicitors] where not high in the factory hierarchy and apparently did not have the authority to hire or to fire. But they did exercise general authority over the employees and were in a strategic position to translate to their subordinates the policies and desires of the management. Accordingly, I find and conclude that Sisco and Stawniak were supervisors within the meaning of the Act, or at the very least were management representatives, and that Respondent bears responsibility for their conduct with respect to the matters involved. 3. The meeting called by Respondent During the afternoon of January 16, a notice was posted in the employee break rooms of both plants, advising that the employees must be at the Gomez warehouse at 4:30 p.m. that day.9 Sisco told the five employees at the Jones plant that they would leave the plant at 4:10 p.m., and proceed as a caravan to the Gomez plant, and added that the employees had better be there. Sisco also told the employees that when they went to the Gomez plant to take their timecards with them and, that they would punch out when they were ready to leave that location. At the appointed time the men in their respective conveyances, and with Sisco in the lead, left for the Gomez plant, arriving there shortly before 5 p.m., and directed to the conference room, where they were in a short time joined by the Gomez plant employees and Company President Kully and Com- pany Attorney Rasmussen. Included among those in attendance were Sisco and Stawniak. Kully opened the meeting by reading a statement to the effect that while the National Labor Relations Act provides that an employer may bargain only with the representative of a majority of his employees, the Board in Struksnes Construction Co., Inc., 165 NLRB 1062 (1967), had provid- ed a polling procedure to enable an employer "to determine if a majority of our employees do actually want a union to continue as their representative," and that for that purpose a poll would be conducted that day. The notice Kully read also stated that the poll would be by secret ballot, and that employees were "assured against reprisal, interference, restraint or coercion of any nature by any party or person," and then turned the meeting over to Rasmussen, whom he introduced. Rasmussen told the employees that Respon- dent and other companies whom he represented were displeased with the Union, and that it was easy to get rid of the Union by the process of secret ballot voting which had been used successfully at other employers; and that nothing would be held against the men whether they voted for or against the Union. Rasmussen then told the employees that 9 Kully testified that he posted the notice at Gomez and delivered it to Sisco with instructions to post it at the Jones plant is Kully testified that the ballots and other forms used in the balloting were printed up 2 days, and perhaps the day, before the balloting, and that the decision to prepare this material was made in a conference between he and Rasmussen . Kully also testified that Rasmussen brought the matenal to the Gomez plant on the day of the balloting 11 The findings in this section are based on a; composite of the credited they had three choices open to them, namely, (1) vote the Union out; (2) file a petition with the Board to get rid of the Union; or (3) do nothing and wait for the Union to get them a contract; and that they should think that situation over and decide the course they wished to pursue. To enable the men to make that decision Rasmussen and Kully retired, but Sisco and Stawniak remained. Among themselves the men discussed the situation. Some suggested that nothing be done at the time, and that they wait and obtain the Union's views on the matter, but Stawniak urged that a vote be taken immediately saying everyone knows what he wants to do. After further discussion, Kully and Rasmussen were called back to the room and informed that the men would vote. The employ- ees were then required to leave the room, and were given printed ballots 10 by which they were to cast their vote and were directed back to the meeting room one at a time, where each marked a ballot in private and deposited it in a box which had been provided for that purpose. Both Sisco and Stawniak casts ballots. The balloting completed, Kully and Rasmussen returned to the meeting room and caused the ballots to be counted in the presence of the men by two clericals employed by Respondent, namely, Wanda and Sue Stewart, who then signed a certificate that they acted "as authorized observers" in the election; that the balloting "was fairly conducted;" that all eligible voters were given an opportunity "to vote their ballots in secret;" and that the ballot box was "protected in the interest of a fair and secret vote." The balloting disclosed five votes for Local 554, and 15 votes for no union." Following announcement of the vote, Rasmussen told the men that the Local 554 had been voted out and they were free to form their own union or committee if they wished to do so, and he and Kully left the room to permit the men to consider that question, saying you guys "just figure out who you want for representa- tives." With Sisco and Stawniak remaining in the room and participating in the discussion, the men decided to form a committee and selected employees Skokan, Hoffman, and Swoboda to serve on the committee. Kully and Rasmussen were notified of this fact and the meeting adjourned at approximately 5:30 p.m. The men then punched out and left the plant. All participants in the meeting were paid until that time.11 B. The Bargaining Negotiations On Sunday morning, January 18, the three employees selected to serve on the Employee Committee met with Kully at the Gomez plant in an effort to negotiate a contract. According to Hoffman, a member of the commit- tee, they had the recently expired Local 554 contract, and they asked for a wage increase of $1 an hour, but that Kully would not agree to that. No agreement was reached that day, and the parties met again on Wednesday or Thursday, but no agreement having been reached that day, met again testimony of Jeffrey Thompson and Mike Regan Although the testimony of these witnesses on direct was different from their testimony on cross- examination, I find that on some details of the events involved they immediately corrected themselves and admitted their error. I am convinced that these men were honestly trying to give the facts, and that their error was due to faulty recollection because of the lapse of time . My findings herein are based on their testimony as they corrected it. Respondent introduced no contrary evidence. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on Monday, January 26, 1976, at which time complete agreement was reached, retroactive to January 11, 1976. The three meetings lasted a total of about 3-1/2 hours. As the two final meetings were during workdays, all three were paid for that time, and those who worked at the Jones plant, as was the case with Hoffman, were paid their travel time in going to and from the Gomez Plant. At no time during the negotiations did Kully inform the committee negotiators that he had received contract proposals from Local 554, as he admittedly did on or about January 20, 1976.12 On or about January 19 or 20, Union Agent Elmer Davis telephoned Kully and asked if the latter had received the Union's contract proposals. Kully replied that he had just received them, but he had not yet had the opportunity to study them. Davis then stated that he had heard that Kully held a meeting with the employees . Kully admitted that fact, and added that a number of employees had come to him and indicated that they did not wish the Union to represent them any further, so they had a meeting and voted the Union out. (Emphasis supplied.) Davis replied that he regarded Kully's conduct to be an unfair labor practice, and would file a charge. Kully replied that Davis could do what he thought was necessary . Since that date there has been no further contact between Respondent and the Union. C. Contents and Conclusions The General Counsel contends that by (1) conducting a poll requiring the employees to indicate whether they desired continued representation by the Union; (2) causing and permitting supervisors to participate -in the aforesaid poll; (3) telling the employees that it would negotiate with a committee of its employees if the Union did not continue as their collective-bargaining representative; and (4) causing and participating in the establishment of the Committee, and thereafter recognizing and bargaining with the Committee, and entering into an agreement with it, Respondent violated Section 8(axl) and (2) of the Act, and that by refusing on or after January 16, to bargain with Local 554 as the representatives of the employees involved, Respondent also violated Section 8(aX5) and (1) of the Act. Respondent, on the other hand, contends that in accor- dance with the safeguards expressed by the Board in Struksnes Construction Co., supra the poll it conducted was in all respects lawful, and that the results of that poll demonstrated that Local 554 no longer enjoyed majority support, and formed a lawful basis for its bargaining with the Committee which had been freely and voluntarily selected by the employees. The critical issue thus posed, and the answer to which will also dispose of all other issues, is whether, when it recognized and bargained with the Committee, Respondent had a "good faith doubt," as that term is defined in the adjudicated cases, that Local 554 represented a majority of the employees. 12 The contract upon which the Committee and Respondent reached agreement on January 26, 1976, was with some minor changes in language, basically the Teamsters contract which expired on January 11, with the following exceptions: art. VI, which deals with "Picket Lines;" art. XXII, with "Stewards;" art. XXIII, with "check-off;" that portion of art. XXVI dealing with the premium rates in those weeks in which a holiday fell, were all omitted ; and the "Management" provision was substantially modified. We start, as we must, with the premise that absent unusual circumstances the majority status of a certified union is conclusively presumed during the first year of certification (Ray Brooks v. N.LRB., 348 U.S. 96 (1954)), and after the first year has elapsed, there is a rebuttable presumption derived from the certification that the certified union continues to be the majority representative of the unit employees. So long as such majority status exists, the employer is under the statutory duty to bargain with the majority representative, and this exacts "the negative duty to treat with no other." Medo Photo Supply Corporation v. N.LRB., 321 U.S. 678, 684 (1944). The presumption of continued majority after the first year of certification, is a rebuttable one, and an employer will be relieved of the duty of bargaining with the union, if he can demonstrate that he had a "good faith" doubt of the union's majority status. An "essential prerequisite" to support an employer's claim of good-faith doubt of continued majority status, "is the establishment by record evidence of some reasonable grounds for believing that the union lost its majority status since its certification" (Downtown Bakery Corp. successor to Smayda's Home Bakery, Inc., 139 NLRB 1352, 1355 (1962)). The doubt alleged by an employer to justify its refusal to bargain with a previously certified union, cannot be chimerical or whimsical ; it must be based upon "objective facts that it has a reasonable basis for believing that [the union has ] lost its majority status". . . United States Gypsum Company, 157 NLRB 652 (1966); J. C. Penney Company, 162 NLRB 1553 (1967), and the cases there cited. The rules thus stated are subject to the threshold qualifica- tion, that the employer raises the defense in good faith. For as the Board has held, "A good faith doubt is not a doubt which has been prompted, encouraged and solicited by the employer." (Rohik, Inc., 145 NLRB 1236). Applying the foregoing criteria which the evidence disclosed by this record, I must and do fmd and conclude that Respondent failed to establish that it had a good faith doubt that the Union continued to enjoy majority status among the employees. On the contrary, I am convinced, and therefore find and conclude that Respondent , notwith- standing its lack of knowledge of any facts that would give rise to a good-faith doubt of the Union's majority status, embarked upon deliberate, albeit transparent ploy, volun- tary acts of the employee. I base this conclusion upon the totality of the following considerations: 1. To begin with, as I have found, the evidence shows that Kully and his counsel conceived, instigated, and promoted the idea of a meeting designed to have the employees indicate that they no longer wished to have the Union represent them. Kully admitted that he discussed the matter with Attorney Rasmussen about 2 days or perhaps the day before the meeting with the employees, and pursuant thereto Rasmussen caused to be prepared the ballots and other forms used in the poll that was conducted, and brought them with him to the meeting for that purpose. Regarding wages, the old contract called for an hourly rate of $3.50 for warehousemen, and $3.90 for crew leaders . The contract which the Commit- tee negotiated provided $4.45 for Warehousemen and $4 .70 for crew leaders. The Union proposal sent Respondent on January 15,1976 , called for $4.81 during the first 30 days, and $4.98 thereafter for both Warehousemen and crew leaders, and 10 cents more in each period for fork lift operators. MID-CONTINENT REFRIGERATED SERVICE COMPANY And Rasmussen planted in the minds of the employees the seeds of the idea for disaffection from the Union, by telling them that it was an easy matter to get the Union out of the Company by a secret ballot; that the men could form their own union and negotiate with Respondent themselves, and this would be better than going through the Union. As the Supreme Court said in International Association of Machin- ists v. N.L.R.B., 311 U.S. 72, 78 (1940), "slight suggestions (made by an employer who holds the power of economic control) may have telling effect among men who know the consequences of encurring that employers' strong displea- sure." Those suggestions, though subtle, "may be as potent as outright threats of discharge." N.L.R.B. v. Link-Belt Company, 311 U.S. 584,600 (1941). 2. While testifying as a witness Kully was asked several questions by me. The examination went thus: JUDGE NACHMAN: On January 16 what facts did you have in your possession which lead you to believe that Local 554 no longer represented a majority of the employees? WITNESS: What specific facts? JUDGE NACHMAN: Yes. WITNESS: Some of the men told us that they had made repeated calls to the Union to determine when the contract was going to be presented to us and that nothing had been forthcoming. I know they had to leave early to go to the meeting. They were concerned why hadn't anything happened in a two-month period of time. JUDGE NACHMAN: Anything else? WITNESS: I don't think so, no, just a general question- ing of different men asking us what was happening.13 Following this examination, and as a result of leading and suggestive question by his counsel, Kully stated that another factor which entered into his conclusion that the Union did not represent a majority was that only a small amount of the men, as a percentage of the crew, were paying dues to the Union, claiming that his information was based on the fact that he checked off dues under the contract.14 The fact that some employees elect not to have their dues checked off, does not appropriately give rise to the inference that they no longer whish to be represented by the Union. 3. Respondent's argument that its poll of the employees was authorized by the criteria approved by the Board in Strucksnes Construction Co., supra, is completely misplaced. The theory of Struksnes is that an employer faced with a union's demand for recognition may lawfully poll his employees to ascertain if a majority has in fact authorized the Union to represent them, provided the safeguards 13 Significantly none of the employees who allegedly indicated to Kully their concern about the delay on the part of the Umon in obtaining a contract, were called to testify, and Kully's testimony in that regard stands uncorroborated. As heretofore indicated, Kully's demeanor as a witness was not such as to inspire my confidence. On the contrary, I am convinced and therefore find that no employee discussed that subject with him. According- ly, I reject all his testimony in that regard. The right of a trier of fact, in an appropriate case to discredit the uncontradicted testimony of a witness and find the facts to be the contrary of his testimony, is settled. See N.L.R.B. v. Walton Manufacturing Co., 369 U.S. 404,408 (1962). 14 At one point Kully estimated that only about 20 percent of them were 923 mentioned in that decision are observed. That decision does not authorize and was never intended to authorize an employer to poll his employees absent a union's demand for recognition. In the instant case neither the Union nor any other labor organization had made recognition demands on Respondent which would require Respondent to ascertain if the Union in fact represented a majority and, if not, to refrain from bargaining with the Union. Accordingly, Respondent's conduct in conducting its poll under the circumstances herein found violated Section 8(a)(1) of the Act. Leaving all else aside, this violation alone precludes Respondent from claiming that it raises the issue of majority status of the Union in good faith. Accordingly, I find and conclude that, by the totality of the foregoing conduct, Respondent violated Section 8(a)(1) and (2) of the Act, and by refusing, on and after January 16, to bargain with Local 554, as the representative of the employees in the unit involved, Respondent violated Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 554, Teamsters, and the Employee Committee, are labor organizations within the meaning of Section 2(5) of the Act. 3. By conducting a poll of its employees, and by telling its employees that Local 554 could be voted out by a poll, and that the employees could form their own committee to bargain with Respondent themselves rather than through Local 554, Respondent interfered with, restrained, and coerced by employees in the exercise of rights guaranteed them by Section 7 of the Act, and engaged in and continues to engage in unfair labor practices prescribed by Section 8(a)(1) of the Act. 4. By fostering, promoting, and aiding in the formation of the Employee Committee, and by recognizing and bargaining with said Committee, Respondent gave assis- tance and support to said Committee, and dominated the same, and thereby engaged in and continued to engage in unfair labor practices prescribed by Section 8(a)(2) and (1) of the Act. 5. At all times material Local 554 has been the collective-bargaining representative of the employees in an appropriate unit of Respondent's employees consisting of: All warehousemen and loaders, shipping and receiving employees of the Jones Street Warehouse and Gomez Avenue Warehouse, excluding office clericals employees, watchmen, guards, professional employees, and supervisors as defined in the Act, and all other employees. having dues checked off. At another point he said that on January 16, the work force consisted of 18 to 20 men, and that 5 to 8 had dues checked off. The record shows that 20 voted in the poll, and included, as I have found, 2 supervisors; therefore, of the 18 employees in the unit, using Kully's figures, he checked off between 30 and 44 percent of the unit employees. Art. XXIII of the last contract with the Umon obligated the employer to check off dues and initiation fees from all employees who gave written authorization therefore. The number of such authorizations is not disclosed by the record. Moreover, there is no showing as to the number of employees who elected to pay their dues directly to the Umon , instead of authorizing a checkoff. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. At all times material, Local 554 has demanded that Respondent bargain with it as the collective-bargaining representative of the employees in the aforesaid appropriate unit. 7. On or about January 16, and at all times since, Respondent has refused to bargain with Local 554, as the collective-bargaining representative of the employees in the aforesaid appropriate unit, and thereby engaged in, and continues to engage in unfair labor practices prescribed by Section 8(ax5) and (1) of the Act. 8. The aforesaid 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 engaged in and is engaging in unfair labor practices prescribed by the Act, it will be recommended that it be required to cease and desist therefrom, and to take the affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. Having found that Respondent interfered with, re- strained, and coerced its employees in the exercise of their guaranteed Section 7 rights; fostered, promoted, assisted, supported, and dominated the Employee Committee; and unlawfully refused to bargain with Local 554 , the collective- bargaining representatives of its employees in an appropri- ate unit, I conclude from the totality of said conduct that Respondent should be required to cease and desist from any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941); California Lingerie, Inc., 129 NLRB 912, 915 (1960). Having found that Respondent assisted, supported, and dominated the employee committee, it will be recommend- ed that Respondent be required to disestablish that Com- mittee, withdraw and withhold recognition from the same, and cease giving effect to the terms and conditions of the contract with the Committee , which became effective as of January 11, or any renewal or extension thereof. Having found that Respondent, since January 16, refused to bargain with the Union as the collective-bargaining representative of its employees in an appropriate unit, it will be recommended that Respondent be required, upon request, to bargain with Local 554 as such representative, concerning the wages, hours, and terms and conditions of employment of the employees in said unit , and if an understanding is reached, embody the same in a signed agreement. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 The Respondent, Mid-Continent Refrigerated Service Company, Omaha, Nebraska, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Conducting a coercive poll of its employees which requires such employees to indicate whether or not they desire continued representation by General Drivers & Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. (b) In any manner or by any means causing or permitting supervisors to participate in a poll designed to ascertain whether or not its employees wish continued representation by the aforesaid labor organization. (c) In any manner by any means causing or participating in a movement designed to form , establish or create an employee committee, which will bargain with it as the collective-bargaining representative of its employees. (d) Telling employees that it would negotiate with an employee committee if Local 554 does not continue as the collective-bargaining representative of the employees in the unit hereafter mentioned. (e) In any manner or by any means dominating, or assisting any employee committee or other labor organiza- tion of its employees, or contributing financial or other support thereto. (f) Recognizing or in any manner bargaining with the Employee Committee as the collective-bargaining represen- tative of the employees in the unit hereafter mentioned. (g) Applying or in any manner giving effect to the collective-bargaining agreement between it and the Em- ployee Committee effective as of January 11, 1976, or any renewal or extension thereof. (h) Failing or refusing to bargain collectively with General Drivers & Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America as the exclusive collective-bargaining representative of its employees in a unit of: All warehousemen and loaders, shipping and receiving employees at its Jones Street and Gomez Avenue warehouses, in Omaha, Nebraska, excluding office clerical employees, watchmen, guards, professional employees, and supervisors as defined in the Act, and all other employees. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Withdraw and withhold recognition from, and dises- tablish the Employees Committee as the collective-bargain- ing representative of the employees in the aforesaid unit. 15 In the event no exceptions are filed as provided by Sec . 102.46 of the of the Rules and Regulations , be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec . 102.48 waived for all purposes. MID-CONTINENT REFRIGERATED SERVICE COMPANY 925 (b) Forthwith rescind and cease giving effective the collective-bargaining agreement entered into with the Employee Committee, effective as of January 11, 1976, or any renewal or extension thereof. (c) Upon the request bargain collectively with General Drivers & Helpers Union, Local 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, as the exclusive collective-bargaining representative of its employees in the aforesaid unit, and if an agreement is reached, embody the same in a signed contract. (d) Post at both its Jones Street and Gomez Avenue warehouses in Omaha, Nebraska, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director of Region 17, after being signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 16 In the event that the Board's Order is enforced by a Judgment of a United States 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."