Grenada Stamping & Assembly, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 351 NLRB No. 74 1152 Grenada Stamping and Assembly, Inc., formerly known as Grenada Manufacturing Acquisition Corp. and Grenada Manufacturing, LLC and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial, and Service Workers International Union. Cases 26– CA–22031, 26–CA–22041, and 26–CA–22077 December 21, 2007 DECISION AND ORDER BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH On June 12, 2006, Administrative Law Judge John H. West issued the attached decision. The Respondents filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondents filed reply briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.2 I. INTRODUCTION The judge found a poll that the Respondents Grenada Manufacturing, LLC (GML) and Grenada Stamping and Assembly, Inc. (GSA)3 conducted was unlawful because they failed to comply with the advance notice require- ment of Texas Petrochemical Corp., 296 NLRB 1057 (1989), enfd. as modified 923 F.2d 398 (5th Cir. 1991), and the procedural safeguard requirements of Struksnes Construction Co., 165 NLRB 1062 (1967). We affirm this finding.4 Also, for the reasons set out below, we 1 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We have modified the remedy, Order, and notice to more accu- rately reflect the violations found. 3 Prior to March 30, 2005, Grenada Stamping and Assembly, Inc. (GSA) was known as Grenada Manufacturing Acquisition Corporation (GMAC). 4 In affirming the judge’s finding that the poll violated Sec. 8(a)(1), we rely only on the judge’s finding that GML and GSA failed to poll GML’s employees by secret ballot as required by the Board in Struksnes, supra. Because a failure to comply with just one of the Struksnes safeguards is sufficient to find a violation of the Act, Mem- ber Schaumber and Member Kirsanow find it unnecessary to pass on the judge’s additional findings that GML and GSA failed to provide assurances against reprisals and created a coercive atmosphere. See American National Insurance Co., 281 NLRB 713, 713 fn. 3 (1986). find that GSA became a perfectly clear successor to GML at least as of March 30, 2005.5 Finally, we adopt the judge’s finding that GSA violated Section 8(a)(1) by telling employees Bennie Collins and Lin Paige that they could not discuss the Union at work. II. FACTS Respondent Grenada Manufacturing, LLC (GML) started manufacturing stamped metal parts at its Gre- nada, Mississippi facility in September 1999. When GML began to experience problems performing work to customers’ satisfaction, it looked for a company that could provide the expertise required to successfully run GML’s business. ICE Industries, Inc. (ICE) was ulti- mately identified as such a company. On September 24, 2003, ICE formed Respondent Gre- nada Manufacturing Acquisition Corporation (GMAC) for the purposes of managing the business of GML and acquiring its assets. On February 21, 2004,6 GML and GMAC entered into an asset purchase agreement that outlined the conditions under which GMAC would pur- chase the assets and properties of GML. On February 23, GMAC and GML entered into a management agreement that gave GMAC certain man- agement rights, including the control of all GML’s as- sets, cash, accounts receivable, furniture, fixtures, and equipment. Under the agreement, GMAC also had the authority to implement and terminate GML’s contracts and agreements and to hire and discharge GML’s em- ployees. By the terms of the agreement, Gary Houston became general manager of GMAC. Houston possessed the authority to make decisions regarding the Grenada Member Walsh finds the poll unlawful for each of the reasons given by the judge. Also, in affirming the judge’s finding that the poll was unlawful, we note that the Respondents excepted only to the judge’s legal conclusion that the poll was unlawful, not to the judge’s factual finding that both Respondents conducted the poll. 5 It is on this basis that we adopt the judge’s finding that GSA vio- lated Sec. 8(a)(5) and (1) by making changes to the terms and condi- tions of employment of unit employees without prior notice to the Union and without affording the Union an opportunity to bargain and by failing and refusing to furnish the Union with the necessary and relevant information it requested. Member Walsh expresses no view on his colleagues’ finding that GSA became a perfectly clear successor to GML at least as of March 30, 2005. Member Walsh, however, adopts those same 8(a)(5) and (1) violations because he finds, in agreement with the judge, that GSA became a legal successor to GML on about March 4, 2004. Member Walsh, though, finds it unnecessary to pass on the judge’s finding that GSA at that time was a “perfectly clear” successor to GML under NLRB v. Burns Security Services, 406 U.S. 272 (1972). Even if GSA was only an ordinary Burns successor, GSA’s unilateral action more than a year later clearly cannot be regarded as the permissible setting of “initial” terms and conditions of employment. 6 All dates hereafter refer to 2004, unless otherwise indicated. GRENADA STAMPING AND ASSEMBLY, INC. 1153 facility, including decisions involving labor relations. Houston and B. J. Anderson, general manager of GML, together handled the day-to-day operations of the Gre- nada facility. Meanwhile, the Union and GML were parties to a col- lective-bargaining agreement set to expire on January 31. During negotiations for a new contract, the existing agreement was extended by mutual agreement to March 1. On March 4, the Union met with Howard Ice, the president of ICE, Chet Melton, the vice president of hu- man resources for GML, and Houston. The meeting resulted in a temporary agreement between the Union and GMAC effective from March 4 until October 31. The agreement stated that GMAC “recognizes there is a union present” and that “[a]ll pay scales, [and] benefits, will remain as are currently practiced, including but not limited to: Hourly wage rates, Medical Insurance, Holi- days, Bereavement, Overtime pay, Life/AD&D Insur- ance, Safety Glasses, and Vision.” The agreement also stated that GMAC “will not recognize the work rules, seniority, or classifications in the Grenada Manufactur- ing, LLC contract” or the existing pension plan and that “all employees must fill out applications and be inter- viewed for potential hiring at” GMAC. Finally, the agreement stated that GMAC “will negotiate a contract with current union representatives after completion of the Purchase Agreement.”7 On April 5, GML filed a voluntary petition for relief under Chapter 11 of the bankruptcy code. GMAC con- tinued to manage GML’s operations under the manage- ment agreement. In September, the Union and GMAC agreed to elimi- nate a contractual employee incentive program regarded as unfair by GMAC because it did not benefit most em- ployees. In lieu of the incentive program, the parties agreed to increase the contractual base wage rate and shift premiums. On October 22, the Union and GMAC agreed to extend the March 4 temporary agreement and September supplement to January 31, 2005. On January 24, 2005,8 the Union met with Anderson and Melton to discuss further extending the March 4 temporary agreement and September supplement. The Union and GML ultimately agreed to extend the tempo- rary agreement until February 23. Around February 24 7 The Respondents note that, during the March 4 meeting, they in- formed the Union that employees would have to “apply for jobs under the new GMAC [GSA].” They do not assert that they informed the Union during the March 4 meeting that GSA intended to unilaterally set new terms and conditions of employment when (and if) it became the employer, or that the terms of the March 4 temporary agreement itself are evidence that this was done. 8 All dates hereafter refer to 2005, unless otherwise indicated. or 25, the Union sought an additional extension of the temporary agreement and supplement. Anderson refused the request. On March 10, the bankruptcy judge author- ized the sale of GML’s assets to GMAC with the transfer of assets effective as of the date the parties closed the sale. On March 24, the Respondents polled the unit em- ployees to determine if they still wanted the Union to represent them. That same day, the Union faxed GMAC a letter requesting recognition and bargaining. Melton responded by letter dated March 30, stating that GMAC would not recognize the Union based on the results of the poll. Also on March 30, the sale of GML’s assets to GMAC was completed and, as noted, GMAC changed its name to GSA. Some time before the sale was completed, Houston told employees that they would have to fill out new applications based on new ownership.9 On March 30 or 31, Houston had another meeting with employees and told them that everyone was going to be hired. Between April 1 and June, GSA conducted employee meetings to inform employees of changes that GSA in- tended to make concerning their terms and conditions of employment. Also, shortly after April 1, Melton posted a copy of the new personnel policies and procedures on the facility’s bulletin board. On April 7, GSA informed unit employees of a new 401(k) plan. On April 14, GSA told unit employees about certain health benefits changes. On April 19, GSA announced the creation of a voluntary retirement plan. About the same time, GSA advised employees of a change in their vacation year from fiscal year to calendar year. GSA also changed vacation pay rates and discon- tinued the contractual grievance procedure. Finally, on or around April 24, GSA removed the Union bulletin board. III. ANALYSIS The Respondents admit in their answer to the com- plaint that GSA became a successor to GML on March 30, 2005. In NLRB v. Burns Security Services, 406 U.S. 272 (1972), the Supreme Court stated that although a successor employer “is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining repre- sentative before he fixes terms.” 406 U.S. at 294. As 9 There is, however, no evidence that any employee actually filled out an application. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154 further explicated by the Board, the “perfectly clear” exception to the general rule that a successor employer is free to set initial terms, while restrictive, should apply “to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer . . . has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to ac- cept employment.” Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975); see also Cadillac Asphalt Paving Co., 349 NLRB 6, 10 (2006). As explained below, we find that GSA became a perfectly clear successor to GML at least as of March 30, 2005. GSA clearly invited GML’s employees to accept em- ployment and informed them of its intent to hire them during employee meetings on March 30 or 31. Contrary to the Respondents, there was no announcement at this time that GSA intended to establish unilaterally new terms and conditions of employment. There was no such announcement during any of GSA’s dealings with the Union prior to March 31. Nor did GSA announce any changes, or plans to implement changes, during its meet- ings with employees prior to March 31.10 Specifically, there is no evidence that GSA made any such announce- ment during or before the meetings at which employees were told they were all going to be hired, that it intended to invoke its right to unilaterally establish terms and con- ditions of employment. Contrary to the Respondents, there was never a “clear announcement” that GSA in- tended to establish unilaterally new terms and conditions of employment before it hired the GML employees. Hil- ton’s Environmental, Inc., 320 NLRB 437, 438 (1995); see also Fremont Ford, 289 NLRB 1290, 1296–1297 (1988). Thus, this is not a case where the employees’ continued employment was contingent on their accep- tance of a successor’s unilateral changes to their em- ployment terms. Road & Rail Services, 348 NLRB 1160, 1162 (2006). By its actions, GSA made it “per- fectly clear” that it intended to retain “all of the employ- ees in the unit.” NLRB v. Burns Security Services, supra. And indeed, all of GML’s employees were retained by GSA. While not determinative, this fact further supports our finding of perfectly clear successorship. Road & Rail Services, supra at 1162 fn. 13. GSA did subse- 10 The Respondents do not even clearly argue to the contrary on brief. Instead, they assert that Houston met with employees to an- nounce new terms “around the same time in March” that the transfer of assets was completed (March 30), and that the new terms were posted “on or about April 1.” quently announce its intent to establish a new set of terms and conditions, but only after April 1. By then, it already had informed GML’s current workforce that they would be retained, without either making or announcing any changes to unit employees’ terms and conditions of employment. Accordingly, for these reasons, we find that GSA was a perfectly clear successor to GML at least as of March 30, 2005.11 AMENDED CONCLUSIONS OF LAW Substitute the following for the judge’s Conclusions of Law 4, 5, 6(a) and (b), and 7(a). “4. Since about September 1999 until about March 29, 2005, based on Section 9(a) of the Act, the Union had been the designated exclusive collective-bargaining rep- resentative of the unit employed by Respondent Grenada Manufacturing, LLC. 5. At all times since about March 30, 2005, based on Section 9(a) of the Act, the Union has been the desig- nated exclusive collective-bargaining representative of the unit employed by Respondent Grenada Stamping and Assembly, Inc. 6. (a) Conducting a poll among Respondent Grenada Manufacturing, LLC’s employees on March 24, 2005, concerning their union sympathies. (b) Respondent Grenada Stamping and Assembly, Inc. telling employees on two occasions on about April 21, 2005, that they could not discuss the Union at work. 7 (a). By conducting a poll among Respondent Gre- nada Manufacturing, LLC’s employees on March 24, 2005, concerning whether they desired to be represented by the Union without giving reasonable advance notice to the Union of the time and place of the poll.” AMENDED REMEDY Having found that the Respondent Grenada Stamping and Assembly, Inc. has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the poli- cies of the Act. We shall order the Respondent to bar- gain with the Union as the exclusive collective- bargaining representative of the bargaining unit and, if requested by the Union, to rescind any unilateral changes in wages, benefits, and conditions of employment im- plemented in April 2005, and thereafter. We shall order 11 Because the alleged unilateral changes made by GSA to the terms and conditions of employment of unit employees occurred after March 30, 2005, we find it unnecessary to pass on the judge’s finding that GSA (then named GMAC) became a perfectly clear successor to GML on March 4, 2004. As noted, above, Member Walsh finds that GSA became a legal successor to GML in March 2004. GRENADA STAMPING AND ASSEMBLY, INC. 1155 the Respondent to make whole the unit employees for loss of wages or other benefits they suffered as a result of the Respondent’s unilateral changes in the manner pre- scribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall also order the Respondent to reimburse unit employees for any expenses resulting from the Respondent’s unlawful changes to their health benefits, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), with interest as set forth in New Horizons for the Retarded, supra. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that Re- spondent Grenada Stamping and Assembly, Inc., Gre- nada, Mississippi, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively polling its employees concerning their support for the Union. (b) Refusing to bargain with the Union as the exclu- sive bargaining representative of its unit employees by failing to provide the Union with reasonable advance notice of the time and place of a poll of unit employees taken for the purpose of determining their desire for con- tinued representation by the Union and conducting unlawful polls for such purposes. (c) Telling employees that they cannot discuss the Un- ion at work. (d) Failing and refusing to recognize and bargain with the Union as the exclusive bargaining representative of its unit employees. (e) Unilaterally changing the terms and conditions of employment of its unit employees without first bargain- ing with the Union. (f) Failing and refusing to furnish the Union with the necessary and relevant information the Union requested. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Bargain with the Union as the exclusive representa- tive of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement: All production and maintenance employees employed by Respondent Grenada Manufacturing, LLC and later by Respondent Grenada Stamping and Assembly, Inc. at Respondent’s Grenada, Mississippi facility, but ex- cluding sales, purchasing, personnel department, office clerical and professional employees, guards and super- visors as defined in the Act. (b) On request by the Union, rescind the changes in the terms and conditions of employment for its unit employ- ees that were unilaterally implemented in April 2005 and thereafter. (c) Make unit employees whole for any loss of earn- ings and other benefits suffered as a result of the unlaw- ful unilateral changes in the manner set forth in the rem- edy section of this decision. (d) Furnish the necessary and relevant information re- quested by the Union on or about March 24, 2005. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Grenada, Mississippi, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that the Respondent has gone out of business or closed the facility involved in these proceedings, the Respon- dent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since March 24, 2005. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156 testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage on any of these protected activities. WE WILL NOT coercively poll you concerning your support for the Union. WE WILL NOT refuse to bargain with the Union as the exclusive bargaining representative of our unit employ- ees by failing to provide the Union with reasonable ad- vance notice of the time and place of polls of unit em- ployees taken for the purpose of determining their desire for continued representation by the Union and conduct unlawful polls for such purposes. WE WILL NOT tell you not to discuss the Union while at work. WE WILL NOT fail and refuse to recognize and bargain with the Union as the exclusive bargaining representative of our unit employees. WE WILL NOT unilaterally change the terms and condi- tions of employment of unit employees, without first bargaining with the Union. WE WILL NOT fail and refuse to furnish the Union with necessary and relevant information the Union requested. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL bargain with the Union as the exclusive rep- resentative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement: All production and maintenance employees employed by Respondent Grenada Manufacturing, LLC and later by Respondent Grenada Stamping and Assembly, Inc. at Respondent’s Grenada, Mississippi facility, but ex- cluding sales, purchasing, personnel department, office clerical and professional employees, guards and super- visors as defined in the Act. WE WILL, on request by the Union, rescind the changes in the terms and conditions of employment for our unit employees that were unilaterally implemented in April 2005 and thereafter. WE WILL make unit employees whole for any loss of earnings and other benefits suffered as a result of the unlawful unilateral changes. WE WILL furnish the necessary and relevant informa- tion requested by the Union on or about March 24, 2005. GRENADA STAMPING AND ASSEMBLY, INC. William F. LeMaster, Esq. and Linda M. Mohns, Esq., for the General Counsel. Kenneth E. Milam, Esq. and R. Reid McKee, Esq. (Watkins & Eager PLLC), of Jackson, Mississippi, for the Respondents. Roger K. Doolittle, Esq. (Doolittle and Doolittle), of Jackson, Mississippi, for the Charging Party. DECISION STATEMENT OF THE CASE JOHN H. WEST, Administrative Law Judge. This case was tried in Grenada, Mississippi, on December 12, 13, and 14, 2005.1 Charges and amended charges were filed collectively between March 24 and September 7 by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial, and Service Workers International Union (the Union)2 collec- tively against Grenada Manufacturing Acquisition Corp. (GMAC), Grenada Stamping and Assembly, Inc. (GSA), and Grenada Manufacturing, LLC (GML) (Respondents). A con- solidated complaint was issued on September 26 alleging that Respondents (1) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by interrogating Respondents’ employ- ees about their union sympathies, by conducting a poll, and by telling employees that they could not discuss the Union at work; (2) violated Section 8(a)(1) and (5) of the Act by interro- gating Respondents’ employees about their union sympathies by conducting a poll, by refusing the Union’s request to recog- nize it as the exclusive collective-bargaining representative of the involved unit of employees3 and bargain collectively with the Union as the exclusive collective-bargaining representative of the unit, by failing and refusing to furnish the Union with necessary and relevant information the Union requested, and by, without prior notice to the Union and without affording the 1 All dates are in 2005, unless otherwise indicated. 2 At the time the Charging Party’s name was United Steelworkers of America, AFL–CIO, CLC. 3 The complaint alleges that the following employees of Respon- dents constitute a unit appropriate for purposes of collective bargaining within the meaning of the Sec. 9(b) of the Act: All production and maintenance employees employed by Respon- dents at Respondents’ Grenada, Mississippi facility, but excluding sales, purchasing, personnel department, office clerical and profes- sional employees, guards and supervisors as defined in the Act. GRENADA STAMPING AND ASSEMBLY, INC. 1157 Union an opportunity to bargain with Respondents with respect to this conduct and the effects of this conduct, making the fol- lowing changes in the terms and conditions of employment for its unit employees, namely (a) changing health benefits; (b) implementing a 401(k) plan; (c) implementing a retirement incentive plan; (d) removing the Union’s bulletin board from Respondents’ facility; (e) changing the vacation year from a fiscal year beginning June 1 of each year to a calendar year; (f) changing employee vacation pay rates; and (g) continuing to maintain an open door policy but no longer recognizing the grievance procedure. Respondents deny violating the Act as alleged. Additionally, Respondents argue that (1) all claims against GML are barred by Order of the United States Bankruptcy Court for the North- ern District of Mississippi in Case No. 04–12077 dated March 10; (2) Respondent GSA had actual knowledge that the United Steelworkers of America, AFL–CIO–CLC Local 202-A did not in fact represent a majority of its employees, pursuant to Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001); and (3) Respondent GSA had a reasonable doubt, based on objective considerations, of the Union’s majority support and lawfully conducted a poll of its employees pursuant to the United States Supreme Court decision in Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998), and Struksnes Construction Co., 165 NLRB 1062 (1967). On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel,4 the Respondents, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION GML, a limited liability company, until March 30, 2005, had been engaged in the operation of a stamped metal parts fac- tory, at its facility in Grenada, where during the calendar year ending December 31, 2004, it (a) sold and shipped products, goods, and materials valued in excess of $50,000 directly to points located outside of the State of Mississippi, and (b) pur- chased and received products, goods, and materials valued in excess of $50,000 directly from points located outside of the State of Mississippi. At the hearing (Tr. 120, 121), GSA stipu- lated that during the 12-month period ending August 31, 2005, in conducting the involved business operations, (a) it sold and shipped from its Grenada facility products, goods, and materi- als valued in excess of $50,000 directly to points located out- side the State of Mississippi, and (b) it purchased and received at its Grenada facility products, goods, and materials valued in excess of $50,000 directly from points located outside the State of Mississippi. At all material times, each of Respondent Gre- nada Manufacturing, LLC and Respondent Grenada Stamping and Assembly, Inc. has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. Respondents admit and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 4 Counsel for the General Counsel’s unopposed motion to correct the transcript, dated January 20, 2006, is granted and received in evidence as GC Exh. 43. II. ALLEGED UNFAIR LABOR PRACTICES When called by the Respondents, Brannan James Anderson, who at the time he testified at the trial herein was employed by GSA and formerly was a partner in GML, testified that it was his understanding that GML was formed when a group of man- agers who worked for Textron took the plant private in 1999, forming the company GML when Textron put the involved plant up for sale;5 that he was hired by GML in September 2002 as vice president of finance; that at the time GML was producing parts for Ford, Collins, and Ackman for Chrysler and GM, and for Frigidaire, a division of Electrolux; that GML had entered into an agreement with Oxford Automotive (Oxford) to produce parts for the Nissan Canton plant which went into their minivan and pickup trucks; that GML secured the financing for the presses to be used to stamp out the Nissan parts; that there were problems in doing the work on the Nissan parts; that he discussed it with Oxford and he tried to find someone in the industry to partner up with to save the plant and the jobs; that ICE Industries showed interest and visited the Grenada plant; that in January 2005 Oxford visited the Grenada plant and ad- vised GML that Oxford was going to remove the minivan work from GML; that Oxford filed a lawsuit in Federal court to re- move the tools (the dies used in the presses) from GML’s Gre- nada plant; that Nissan had approved Oxford moving the dies from GML’s Grenada plant; that one of the presses was pur- chased by GML exclusively for the Nissan program and that 600-ton press was totally worthless at that point if the Nissan work was lost; that two of the partners in GML, Larry Wal- ters—who was the vice president of engineering, and Wayne Taylor—who was the president of GML, opposed GML enter- ing into a Management Agreement with ICE Industries; that Walters and Taylor were removed from their positions and terminated, and he was made general manager of GML; and that GML entered into the Management Agreement with ICE Industries. Jerry Lumbrezer, who is the director of finance of ICE In- dustries and is responsible for all the day-to-day operations of all the plants and subsidiaries of ICE Industries, testified that around September 2003 management teams from ICE Indus- tries and GML first met to discuss a possible acquisition; that his boss, Jeff Boger, was doing the “due diligence” on GML to determine if ICE Industries would be interested in a Manage- ment Agreement or a purchase of GML; and that due diligence took place from late in the third to fourth quarter of 2003, through 2004, and into 2005 until, as described below, the bankruptcy was settled and the Asset Purchase Agreement was finalized. GML and the Union had a collective-bargaining agreement which was set to expire on January 31, 2004. During negotia- tions for a new contract, the existing contract was extended by mutual agreement to March 1, 2004. (GC Exh. 2.) Lumbrezer testified that in the February–March 2004 time- frame, as indicated above, Oxford, in furtherance of its effort to 5 As pointed out in GC Exh. 14, GML was formed in September 1999 when a group of managers bought the assets of the Grenada Mis- sissippi Textron plant from Textron Automotive Exteriors, Inc. The plant had been in business since the early 1960s. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158 pull its Nissan tooling from GML’s Grenada plant, filed a civil action.6 General Counsel’s Exhibit 27 is a letter which, as here perti- nent, reads as follows: Governor Haley Barbour . . . . Jackson, Mississippi . . . . February 5, 2004 . . . . Ice Industries’ goal is to turn Grenada Manufacturing into the South’s premier automotive stamping facility. We are committed to and will work diligently towards creating high-skilled, high paying jobs. Ice Industries has a proven track record in turn-around situations. We have rescued two faltering companies over the past five years, salvaging over 200 jobs. We are confi- dent that our plan for Grenada Manufacturing will experi- ence similar success and that we can grow the facility sub- stantially over the next three years and beyond. Our immediate primary objective is to secure a long- term relationship with Nissan Automotive. We have the wherewithal to be one of their world-class suppliers. Thank you for any help you and your staff can offer. Respectfully, Howard Ice, Jr. President Ice Industries Lumbrezer testified that this letter was written because Nissan wanted to pull its tooling out of GML’s plant, Ice Industries wanted the opportunity to prove itself to Nissan, and Ice Indus- tries was asking the office of Governor Barbour to work with Nissan. By letter dated February 13, 2004, on ICE Industries letter- head (GC Exh. 30), Howard Ice advised Doug Rossman, vice president of purchasing of Oxford, as here pertinent, as follows: Over the past 5 months we have extensively re- searched the purchase of Grenada Mfg. As you are well aware, there have been substantial obstacles to overcome in getting to the point that the acquisition made financial / operational sense. We now have an operational plan that will put together a world-class stamping company, combined with other Ice Industries resources, to create a smooth running operation for our customers. Our immediate goal is to stabilize the operations and to begin the turn-around process that we feel will make substantial gains within 2 months. Because we have done this before at our other locations, we are very confident that all customers will see an immediate impact and long- term gains from our management of the company. 6 As indicated, the tooling would be expensive dies, etc., which are owned by Nissan or Oxford and are loaned to GML by Nissan or Ox- ford to stamp out the parts for Nissan. We look forward to fixing the relationship that Oxford has had with Grenada, and turn it into a progressive, mu- tually beneficial partnership. . . . . General Counsel’s Exhibit 20 is an Asset Acquisition Agreement between GMAC, an Ohio corporation (purchaser), and GML, a Mississippi limited liability company (seller), dated February 21, 2004. As here pertinent, the recitals at the beginning of the agreement read as follows: “Purchaser desires to purchase and Seller desires to sell all of the assets and prop- erties of Business . . . of the Seller on the terms and subject to the conditions contained in this Agreement.” General Counsel’s Exhibit 19 is a Management Agreement effective as of “2/23/04” between GML (owner) and GMAC (manager). The recitals at the beginning of the agreement read as follows: “A. Manager owns and operates metal stamping and fabrication facilities. B, Owner desires to contract with Man- ager to operate Owner’s metal stamping and fabrication facili- ties located in Grenada, Mississippi and any other location where Owner operates (the ‘Business’).” The Manager’s Au- thority portion of the Agreement reads as follows: 3. Manager’s Authority. Manager shall use its reason- able best efforts to provide administrative, management and supervisory services to Owner to operate the business of Owner. In order to efficiently operate the Business, Manager shall have (subject to the limitations otherwise set forth herein) the following authority: A. To control all of the assets used or useful in the op- eration of the Business . . ., including, but not limited to, all cash . . ., marketable securities, notes receivable, ac- counts receivable, and all furniture, fixtures and equip- ment. B. To implement and/or terminate all contracts, agreements and other arrangements of Owner in connec- tion with the Business. C. To make all purchases and to enter into any con- tracts or agreements necessary for the operation of the Business. D. To collect all Revenues of the Business and to have full control over all sales, collections and agreements of the Business. . . . . E. From Revenues, to pay all Expenses of the Busi- ness, and have full control over all purchases, orders and other expenditures of the Business. . . . . F. To provide all management and oversight of Owner’s employees who shall be and remain on the pay- roll of Owner. Manager shall have the right to hire or dis- charge all employees, on terms and conditions it may deem reasonable. G. To establish and supervise an accounting system . . . . H. To receive, consider, and when it deems appropri- ate, handle the complaints of any customers of the services or the products provided by Owner. GRENADA STAMPING AND ASSEMBLY, INC. 1159 I. To deposit in a banking institution or institutions se- lected by Owner and in accounts in the name of Owner, all Revenues received by Manager for or on behalf of Owner and to pay from such accounts on behalf of Owner, the Expenses, and to negotiate, endorse and otherwise sign, by and on behalf of the Owner, any and all instruments, checks, draws and other documents. J. To maintain such policies of insurance against liabil- ity . . . and such other policies . . . as are necessary . . . . K. Except as otherwise set forth herein, in the name of Owner, operate the Business and to make all decisions and commitments and take all actions it deems appropriate in connection therewith. L. Manager shall perform its duties hereunder in a manner which it believes, in its reasonable discretion, is in the best interests of the Business, and will use the skill and care of a similarly situated commercially reasonably man- ager. . . . M. To purchase, rent, and lease and to install or re- move equipment or assets . . . [with specified exceptions, namely described presses] for use in the Business. . . . . 4. Manager’s Compensation. Manager, as compensa- tion hereunder, shall retain all Revenues less all Expenses; provided that in no event shall such compensation be less than $20,000 in any given month, as averaged over a 24 month period. . . . . Lumbrezer testified that part of the reason that the Management Agreement was entered into was that Ice could continue to do due diligence on GML to see if Ice even wanted to purchase it, GML “had run out of time” (Tr. 111), and GML was “two weeks from closing the door.” (Id.) (Emphasis added.) Chet Melton, the vice president of human resources for GML, gave the following testimony: Q. When did you begin working for Grenada Manu- facturing Acquisition Corp., which then changed its name to Grenada Stamping? A. Actually it was a Management Agreement we had, Grenada Manufacturing, LLC had with Grenada Manufac- turing Acquisition Corporation, as far as management of the facility. I was still in the capacity of Vice President of Human Resources for Grenada Manufacturing, LLC. [Tr. 227.] Melton testified that from the time the Management Agreement went into effect through the end of 2004 he was paid by checks of Grenada Manufacturing Acquisition Corporation; and that during that period he worked more just as a manager rather than a vice president and owner. Gary Houston, who describes himself as a turnaround spe- cialist, testified that he became General Manager with GMAC with the signing of the aforementioned Management Agree- ment, and he came to Grenada to run GML’s facility; that he was never an employee of GML; that he was a consultant while he worked in Grenada, and he was paid by ICE Industries; that it was his job to come to Grenada and determine whether GML could be turned around; that he was responsible for the turn- about and implementing things that he felt were necessary for the business to survive; that GML had lost one-half of the Nis- san business and the other half was in court in that Nissan had filed a lawsuit to pull the rest of the dies out of GML’s facility; that GML’s largest customer, Electrolux, which is an appliance manufacturer of stoves and refrigerators, among other things, was getting ready to replace one of the jobs that GML was doing and it was going to give GML the new die based on its performance/financial situation; that Electrolux “did not want to continue to do business with us” (Tr. 220); that Ford Motor Company was ready to pull all of its work out of GML; that the first thing he had to concentrate on was to salvage the current customer base; that as general manager of GMAC beginning in February 2004 he signed all of the checks required for the day- to-day operations of the GML facility; that he could write a check up to a certain amount but he did not know what that amount was; that he wrote checks for materials; that he had input regarding labor relations matters and personnel issues; that he solicited input from others but he had final say in mak- ing decisions regarding the facility, including management decisions dealing with labor relations matters; that to his knowledge, it was never necessary to amend the Management Agreement that had been executed in late February 2004; that to his knowledge, the relationship between GMAC and GML never changed in any significant respect during the time period that the Management Agreement was in effect from late Febru- ary 2004 through the end of March 2005; that without financing from ICE Industries, GML could not have funded all of its op- erations and met payroll on a timely basis, and it could not have timely filled the orders that had already been placed by its customers; that he first came to the involved Grenada facility in the latter part of February 2004; that there were two group meetings with employees the first Monday after he arrived in Grenada, and that was the only time; that Anderson introduced him as part of the management group which came to help the manager; that this was after the Management Agreement was signed; that from that date forward he was at the facility more or less day in and day out; that the employees were told at the two aforementioned meetings that he was the new general manager of the facility; that there were no immediate changes in the size of the workforce or the product being produced in late February early March 2004; that Melton was in charge of making sure that GMAC would have a workforce when the sale was finalized; and that Melton continued to work for GML throughout the term of the Management Agreement. Bennie Paige, who is a department leader of the Company and officer of the Union, testified that Gary Houston was intro- duced to employees as a group in late February 2004; that after Gary Houston began working at the facility he did not notice any changes in his, Paige’s, employment, in his job duties, in the processes or machinery being used, or in the products being manufactured; and that at that time there was no change in the benefits, and the workforce was not increased of decreased. On cross-examination, Paige testified that after Gary Houston came on board there were layoffs; and that with respect to one layoff, he filed a grievance and three of the four employees who were laid off were recalled. Lin Collins, who retired in June 2005 after working at the involved Grenada facility for 33 years, testified that he was a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160 forklift operator and he was the president of Local 202 of the United Steel Workers; that he attended a meeting for all em- ployees in the cafeteria where Gary Houston was introduced by Melton, with Melton indicating the Houston would be manag- ing the plant; and that after that nothing changed in terms of his day-to-day work life in that he still worked the same shift, do- ing the same type of work, receiving the same benefits, there was no increase or decrease in the size of the workforce at that time, and to his knowledge, there was no change in the prod- ucts that were being produced at GML at that time. When called by the Respondents, Anderson testified that af- ter Gary Houston came to manage the Grenada plant, his, Anderson’s, duties at that time were to facilitate the eventual sale of assets; that GML entered into the Management Agree- ment to get (1) management expertise and the technology that GML did not posses, and (2) assets to be able to run the busi- ness as a going concern so it could be sold; that GMAC was not operating the Company; and that GMAC was in effect a banker for GML. Anderson also gave the following testimony: “We needed the funds from ICE Industries in order to fund the total operations of Grenada Manufacturing, LLC. We could not have—we were not a going concern, and we could not have paid our bills without their funding.” (Tr. 373.) (Emphasis added.) Gary Houston testified that ICE Industries decided that it could no longer go forward with the Asset Purchase and had to go the bankruptcy route when it realized the extent of the pos- sible involved liabilities regarding environmental issues and the under funded pension fund. When called by Respondents, Anderson testified that ICE Industries began looking at the environmental and pension issues and then it came to their attention that Taylor, unknown to the other GML partners who were there at the time, had en- tered into a Sales Management Agreement with Retmer Sales in Michigan which claimed that GML owed them in excess of $300,000 for past commissions and would be owed for any future commissions coming on any sales through GML; and that ICE Industries then indicated that it could not go through with the sale unless GML went through bankruptcy to clear up these three points. In late February 2004 Melton, who as indicated above was GML’s vice president of human resources and is GMAC’s human resources manager, telephoned Isaac Hardman, who is a staff representative of the Union and who was negotiating with GML for a new contract, and asked Hardman to meet with him and some other people because GML had a potential buyer for the plant. They agreed to meet on March 4, 2004, at GML’s facility in Grenada. Melton testified that in February and March 2004 there were no significant changes to employees’ terms and conditions of employment, and there were no notable changes in the size of the workforce or the product being produced in March 2004. By application dated March 3, 2004 (GC Exh. 32), GMAC, an Ohio corporation, applied for a Certificate of Authority with the Secretary of State of Mississippi to do business in Missis- sippi. Lumbrezer testified that the purpose behind the creation of GMAC was to acquire the assets of GML and to manage this business while the bankruptcy and the sale were pending. Gary Houston testified that General Counsel’s Exhibit 33 is an organizational chart for “Grenada Manufacturing”; that the chart is dated “3/04”; that he is listed as general manager on the chart; that B. J. Anderson was affiliated with Grenada Manu- facturing, LLC in March 2004 as general manager of Grenada Manufacturing, LLC; that even after he came in as general manager of GMAC, Anderson continued to hold the position of general manager of Grenada Manufacturing, LLC; and that Anderson does not appear anywhere on General Counsel’s Exhibit 33. On March 4, 2004 Hardman, who was accompanied by Collins, Page, and May Bell Topp, met with Melton, Howard Ice, who was the potential new owner, and Gary Houston, who worked for Ice. Hardman testified that Ice indicated that he wanted to purchase GML but (1) he would not purchase the pension program because it was in deficit, and (2) he could not live with the seniority rules which were in place at GML be- cause his factories work on a team concept; that Melton said that if Ice did not purchase the plant, it would shut down; and that Ice indicated that (a) he would recognize the Union, (b) as soon as the purchase agreement was finalized he would sit down and negotiate a new contract with the Union, and (c) employees would have to reapply for jobs under the new GMAC. Hardman also testified that General Counsel’s Exhibit 3 is an extension agreement entered into on March 4, 2004. It reads as follows: TEMPORARY AGREEMENT BETWEEN GRENADA MANUFACTURING ACQUISITION CORP. AND UNITED STEELWORKERS OF AMERICA LOCAL 202-A The Company recognizes there is a union present. The Company will not recognize the work rules, sen- iority, or classifications in the Grenada Manufacturing, LLC contract because of the flexibility that is mandated. All pay scales, benefits, will remain as are currently practiced, including but not limited to: Hourly wage rates Overtime pay Medical Insurance Life/AD&D Insurance Holidays Safety Glasses Bereavement Vision All employees must fill out applications and be inter- viewed for potential hiring at Grenada Manufacturing Ac- quisition Corporation. The Company does not recognize the Hourly-Rated Pension Plan as currently exists with Grenada Manufactur- ing, LLC. The Company will negotiate a contract with current union representatives after completion of the Purchase Agreement. The Company expects all cooperation necessary to achieve success at Grenada Manufacturing Acquisition Corporation. This agreement will remain in force no later that Octo- ber 31, 2004. Agreed on 4th day of March, 2004 by: GRENADA STAMPING AND ASSEMBLY, INC. 1161 . . . . The agreement was signed by Hardman, Collins (as president of Local 202-A of the United Steelworkers), Paige, Topp, and Joe Walker for the Union. Under the column headed “FOR THE COMPANY” Gary Houston signed as general manager of Grenada Mfg. Acquisition, and Melton signed as human re- source manager. On cross-examination, Hardman testified that Ice introduced Houston as his employee; that this was the first time he saw Houston and, to his knowledge, Houston was not already working at the involved Grenada plant; that at that time he was not aware of any agreement between GML and Ice as far as the management of the Company was concerned; that at some point Houston came to the involved Grenada facility and began to manage it but he could not remember when; and that he was told by Melton that GML was $2.5 million behind on their pension program, they were trying to get out from under the pension, they wanted the Pension Benefit Guarantee Corp (PBGC) to take over the pensions, they wanted the Union to get on board, and they were not sure that they could “pull that off.” (Tr. 48.) By letter dated March 15, 2004, on ICE Industries’ letter- head (GC Exh. 31), Howard Ice advised Rossman, of Oxford that, among other things, a Management Agreement has been signed that gives ICE Industries full management rights to GML; that the Management Agreement can last up to 12 years or up to the execution of the Purchase Agreement; and that ICE Industries removed Taylor and Walters from their management positions with GML and replaced them with a general manager and controller from ICE Industries. General Counsel’s Exhibit 21 is a Memorandum of Agree- ment between GMAC and GML, dated March 16, 2004, pursu- ant to which GMAC advanced to GML $200,000 as a deposit for and towards work to be performed by GML for DANA Corporation of Longview, Texas. The agreement specifies that “[s]uch work, including expenses attendant thereto, as is done, performed or advanced by . . . [GML] shall be credited against said $200,000.00.” Lumbrezer testified that this was a prepay- ment to GML, an extension of credit; and that Deerfield Manu- facturing, a subsidiary of ICE Industries, was doing work for DANA and it was ICE’s intention to move the work to Grenada and subcontract it through GML to have a significant amount of freight savings. General Counsel’s Exhibits 28 and 29 are two letters, both dated March 24, 2004, from Ice to the mayor of Grenada and to the president of the Grenada County Board of Supervisors, respectively. The bodies of the letters are identical, except that, respectively, one refers to help from the city of Grenada and the other refers to help from the Grenada County. They read as follows: Grenada Acquisition Corporation, a Subsidiary of Ice Industries, has entered into two agreements with Grenada Manufacturing, LLC. The first agreement is a Manage- ment Agreement that gives Grenada Acquisition Corp. full management rights of Grenada Manufacturing. The sec- ond agreement is an Asset Purchase Agreement that is executed once all outstanding issues with Grenada Manu- facturing are resolved through the Management Agree- ment. We are hopeful that we will work through all issues, but no commitments have been made at this time to guar- antee the longevity of the Grenada site. Because some of the issues could seem insurmount- able without Local, State, and Federal assistance, Grenada Acquisition corporation will be calling on all facets of government to help resolve the outstanding issues. To briefly discuss our challenges, the list below details some of the issues and whom we will be working with for help: 1. Indemnification from environmental risk: Textron Automotive, Grenada County. 2. Distress termination of under-funded pension: Gre- nada Mfg. LLC, Federal PBGC. 3. Debt re-structuring and relief: Grenada County, City of Grenada, Local and State Banks. The attached document outlines our request for help from Grenada County. [Emphasis added.] [GC Exh. 29 reads “from the City of Grenada” instead.] Once all issues are resolved, Grenada Acquisition Corporation will be prepared to execute the Asset Pur- chase Agreement with Grenada Mfg. LLC. Although some of these issues are difficult, we believe that the long-term potential of the Grenada site is worth the effort. We have a vision for Grenada that positions us as a tiers 1 and 2 automotive stamping and assembly supplier. With the plant size, capacity, strategic location, and labor resources we feel that this plant could employ 600–700 people within 5 years. Unfortunately, without substantial help to get all issues resolved to our satisfaction, there is no way to commit to an ongoing operation at Grenada, either through Granada LLC, or Grenada Acquisition Corp. The only viable solu- tion for long-term job retention and growth is to complete the Asset Purchase Agreement with the resolutions in place. Thank you for your assistance and support of the Gre- nada facility, I look forward to working with the County Board [Emphasis added.] [GC Exh. 29 refers to “the City of Grenada” instead.] more closely over the next few months. Sincerely, Howard Ice, Jr. President Ice Industries The attachment to General Counsel’s Exhibit 28 requests Gre- nada County to assist with respect to (1) environmental indem- nification, (2) lease payments, (3) property loans/financing, and (4) past due property taxes. The attachment to General Coun- sel’s Exhibit 29 requests the city of Grenada to assist with re- spect to (1) a 10-year working capital loan of $300,000 at 0- percent interest, and (2) placing on hold lease payments “[t]hrough May 1, 2004 through December 31, 2005. . . .” Lumbrezer testified that his responsibilities with GMAC be- gan in the March–April 2004 timeframe; that as indicated by General Counsel’s Exhibit 15, which is an ICE Industries or- ganizational chart, he is the controller of Grenada Acquisition DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162 Corporation, which is a subsidiary of ICE Industries; that Gre- nada Acquisition Corporation and GMAC is the same entity; that he was not an employee of, on the payroll of, or affiliated with GML; that two of the subsidiaries of ICE Industries, namely Acklin Stamping Company and Deerfield Manufactur- ing basically service automotive or refrigeration and aerospace markets; that since February 2004 ICE Industries exercised full managerial control over GML; that GMAC was created to ac- quire the assets of GML and to manage this business while the bankruptcy and ultimate sale was pending; that the Manage- ment Agreement, which was not amended, was in effect from February 2004 through March 2005; and that the relationship between ICE Industries, GMAC, and GML basically remained unchanged from February 2004 through March 2005. General Counsel’s Exhibit 22 is an April 5, 2004 Interim Order of David W. Houston III, United States Bankruptcy Judge in the United States Bankruptcy Court for the Northern District of Mississippi in the aforementioned Chapter 11 pro- ceeding of GML. The order granted the Emergency Motion for an Order authorizing debtor-in-possession to incur secured indebtedness pursuant to section 364, and related relief. Lum- brezer testified that the Interim Order was entered on the same day the bankruptcy petition was filed. The Interim Order indi- cates that GMAC has agreed to provide an additional, postpeti- tion loan to debtor GML. The Interim Order authorizes GMAC to loan debtor GML up to $300,000 to be secured by a subordi- nate lien upon all of the debtor’s assets, subject to all duly and properly perfected security interests that existed as of the date of the filing of the petition, and subject to all the liens granted to Commercial Capital Lending, Inc, GML’s primary working capital lender, as a result of its factoring arrangement and agreement. And the Interim Order specifies that the $300,000 additional advance from GMAC to debtor GML shall be util- ized to, among other things, pay for purchases of raw materials and inventory, employees’ salaries, and other expenses of ad- ministration, as necessary to allow debtor GML to fill existing and future orders from its customers. See paragraph 9 on pages 2 and 3 of the Interim Order. Respondents, the General Counsel, and the Union entered into the following stipulation: “during the bankruptcy period, roughly April 2004 through March 2005, Gary Houston signed checks and drafts on a bank account that’s capped—bank ac- count was held by Grenada Manufacturing, LLC, debtor-in- possession.” (Tr. 434–435.) When called by Respondents, Anderson testified that money came from GMAC into the GML operating account, which he believed was at the Merchants and Farmers Bank, and GML continued to bill, operate, purchase, and pay the employees. General Counsel’s Exhibits 17 and 18 are undated letters from Ice to certain of GML’s customers. The bodies of both exhibits are identical. One has no letterhead. The other, the latter, has GML’s letterhead. It reads as follows: Grenada Manufacturing, LLC “A Global Leader in Metal Fabrication” 635 Hwy 332 601–226–1161 Grenada, Ms 38901 601–226–1166 Fax Dear Customer ____________: I am leading the team that has taken over the manage- ment of Grenada Manufacturing, LLC. We were brought in as the result of financial and operating difficulties the business was experiencing. We have found greater prob- lems than expected, and as a result, we believe it is neces- sary to reorganize the business if we are to establish and maintain strong working relationships with our employees, customers, suppliers, lenders and the community at large. Because your are a valued customer of Grenada Manu- facturing, LLC, we want to inform you that the business has filed for Chapter 11 Bankruptcy reorganization on April 5, 2004. After considering all options, we believe that bankruptcy reorganization will ultimately be in the best interests of all those involved with the Company, and will allow us to increase the financial strength of the Company. This process will be lead by the new manage- ment team, with me as General Manager, and has an es- tablished track record of success in the industry. We be- lieve this will ultimately lead to: The long term, stable employment of the approxi- mately 150 employees of the Company; Increased job opportunities for the area as we grow the business; An increased tax base for the community; Strengthening of lender, customer, and supplier re- lationships as the Company will be able to meet its ob- ligations going forward; Better service and supply of quality products for existing and new customers; and A seamless transition to the new management team. Both Grenada Manufacturing and I have a commit- ment to the employees, community, customers, suppliers and lenders of the Company, and we ultimately believe that a reorganization will be in everyone’s best interest. Most importantly, we want to cooperate with all involved to minimize any negative impact on any of the Company’s constituencies. To that end, I invite you to call Gary Hous- ton at 662–226–1161 ext. 111 to discuss any questions or concerns you might have. After speaking with us, I think you will agree that going forward, Grenada Manufacturing will be a profitable, beneficial, and dependable member of the community. We look forward to hearing from you Sincerely, Howard E. Ice, Jr. Lumbrezer testified that these letters were sent to about 20 of GML’s customers; that they were sent shortly after April 5, 2004; that the purpose of the letters was to try to stop the bleed- ing at GML in that customers were “bolting” (Tr. 114), Ice spoke to a number of the customers explaining that he was going to turn this thing around, and he wanted them to give him GRENADA STAMPING AND ASSEMBLY, INC. 1163 a chance; and that Ice met with the secured creditors of the debtor to advise them of the progress that was being made.7 Lumbrezer testified that on July 12, 2004, GML filed a Mo- tion to Expand Debtor-In-Possession Financing with the United States Court for the Northern District of Mississippi. The Mo- tion (GC Exh. 23) indicates that movant needs additional capi- tal and GMAC agreed to loan to GML an additional $300,000 and that the matter should be set for an emergency hearing at the court’s earliest opportunity. On July 12, 2004, Judge David Houston issued an order scheduling a preliminary hearing on July 20, 2004 (GC Exh. 24). Lumbrezer testified that it was his understanding that this motion was granted around July 2004. In September 2004, Collins telephoned Hardman. Hardman testified that Collins told him that Houston was doing away with the incentive program that was in the collective- bargaining agreement and Houston “was giving everybody a 75 cent an hour increase, . . . a 20 cent increase on the evening shift, and a 40 cent on the night shift. And he did that without speaking with the Union. And he asked me to call Gary Hous- ton” (Tr. 34); that he telephoned Gary Houston and told him that he had a union at the Grenada facility and he could not make changes without getting with the Union; that Houston told him that he thought the incentive program was unfair to the majority of the people, only 10 percent of the people were mak- ing money, and he thought that was the fairest way; that he told Houston that he talked with Collins and if the Local agreed he would not have a problem with it; that the Local agreed; and that subsequently he signed the agreement, received herein as General Counsel’s Exhibit 4. The agreement reads as follows: AGREEMENT BETWEEN GRENADA MANUFACTURING ACQUI- SITION CORPORATION AND THE UNITED STEELWORKERS, LOCAL 202-A (SUPPLEMENT TO TEMPORARY AGREEMENT BETWEEN GRENADA MANUFACTURING ACQUISITION CORPORATION AND UNITED STEELWORKERS LOCAL 202-A DATED MARCH 4, 2004) The management recognized that the Incentive Pro- gram at the Grenada Plant did not provide a fair and equi- table opportunity for all employees to enjoy increased earnings above their hourly rate. A proposal was presented to the employees to increase the base rates by $.75 per hour and increase the shift premium to $.20 for 2nd shift and $.40 for 3rd shift. These changes would replace the Incentive System in the facility. This proposal was considered and approved by the United Steelworkers Local 202-A on September 7, 2004. The changes are to be effective on Sunday, Septem- ber 5, 2004. This agreement between the parties in no way opens any collective bargaining agreement and is made without precedent or prejudice. 7 This was indicated in par. 12 at p. 4 of GML’s amended motion filed in February 2005 with The United States Bankruptcy Court for the Northern District of Mississippi in GML’s Chapter 11 Case No. 04– 12077. GC Exh. 13. The agreement is signed by Hardman, Collins, Paige, Topp, and Walker for the Union. In the column designated “FOR THE COMPANY,” Gary Houston signed as general manager for Grenada Mfg. Acquisition and Melton signed as human resources manager. In October 2004, Melton telephoned Hardman and asked him about an extension of the collective-bargaining agreement and said that they should meet because the Bankruptcy Court was taking longer than expected. On October 22, 2004, Hardman, accompanied by Collins, Paige, Topp, and Walker, met with Houston, Melton, Ander- son, who was general manager of GML and subsequently fi- nancial consultant of GMAC, and Rick Stanford, who was GML’s vice president of production and is production manager of GMAC. Hardman testified that they agreed to an extension of the contract through January 31, 2005; and that it was de- termined that seniority would be recognized in reference to layoff and recalls. General Counsel’s Exhibit 5 is the agree- ment. It reads as follows: TEMPORARY AGREEMENT BETWEEN GRENADA MANUFACTURING ACQUISITION CORPORATION AND UNITED STEELWORKERS OF AMERICA LOCAL 202-A THE SUBJECT AGREEMENT DATED MARCH 4, 2004 AND THE SUPPLEMENTAL AGREEMENT (CONCERNING THE INCENTIVE PLAN AND SHIFT PREMIUM) EFFECTIVE SEPTEMBER 5, 2004 IS HEREBY EXTENDED TO JANUARY 31ST, 2005. IN ADDITION, THE COMPANY WILL RECOGNIZE SENIORITY DURING LAYOFFS AND RECALLS. AGREED ON 22 DAY OF OCTOBER, 2004 . . . . Hardman, Collins, Paige, Topp, and Walker signed for the Un- ion. In the column designated as “FOR THE COMPANY,” Gary Houston signed as general manager and Melton signed as human resource manager. When called by Respondents, Anderson testified that the en- vironmental concerns were resolved in November 2004. Gary Houston testified that in December 2004 he saw a un- ion notice on the bulletin board regarding a meeting about the future of the Union; that he asked Paige, who is a union leader, what did the Union mean about the future of the Union; and that Paige told him the they were going to discuss what the Union does for the employees. Paige testified that in December 2004 he posted a notice on the union bulletin board regarding a union meeting to discuss the future of the Union; that there was a union meeting to dis- cuss with the employees that while the Company was having cookouts and giving out caps and T-shirts and saying that they were going to recognize the Union, he did not believe that the Company was going to recognize the Union and he wanted to make sure that the union members understood what was going on; and that prior to the meeting Gary Houston asked him about the notice regarding the union meeting and he told Houston that he was trying to get people excited and maybe they would come to the union meeting, “[c]ause [sic] there was a study DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164 saying that it was very low, and I wanted to kind of build it up.” (Tr. 271.) General Counsel’s Exhibit 16 is titled “Grenada Acquisition Corp., General Ledger.” Lumbrezer testified that the exhibit is a portion of the General Ledger for GMAC which shows basi- cally the financing between GMAC and ICE industries and how the funds were used8; that he prepared the exhibit for the hearing herein, and it was given to the Board pursuant to a subpoena that was served in ICE Industries; that the underlying documents that he referred to in preparing the exhibit are bank statements, checks, wire transactions used to finance GML, and some subcontracting work that was done for ICE Industries that GML was paid for, which would have really been an offset to the financing ICE Industries gave GML as far as GML working off some of that financing and paying some of that debt back; that he did not refer to the 2004 full ledger of GMAC in prepar- ing this excerpt of the full ledger; that GMAC was little more than a bank account conduit between ICE Industries and GML; that the exhibit reflects a payment of $50,000 to B. J. Ander- son, who in March 2004 was no longer general manager of GML; that he did not know Anderson’s title as of the ledger entry date, namely, March 3, 2004, but at the time Anderson worked for GML; that he was not sure what the payment to Anderson was for; that the payment to Anderson was not part of the loan to GML that it was responsible for repaying; that the exhibit shows a payment of $5000 to Jay Gore, an attorney in Grenada; that the exhibit shows a payment or $17,500 to Harris and Geno, which is the law firm which took GML through bankruptcy and also did work for GMAC; that the payment to Harris and Geno was for work done for ICE Indus- tries and it was paid by GMAC; that GMAC maintained an arm’s-length relationship with GML; that ICE Industries chose to get advice from the same law firm which was representing GML in bankruptcy because ICE Industries was advised that the firm was the best in Mississippi9; that he could not explain why the $200,000 indebtedness from March 16, 2004, which is covered in General Counsel’s Exhibit 21, is not an entered in the 2004 GMAC abbreviated ledger (GC Exh. 16); that this indebtedness and any repayment should have been reflected on General Counsel’s Exhibit 16; that the $200,000 is probably on Deerfield Manufacturing’s, another subsidiary of ICE Indus- tries, books and not on GMAC’s books since the work went through Deerfield; that while the original intent was to transfer the work from Deerfield to GML to save transportation costs, the customer would not allow Deerfield to transfer the work to GML; that certain of the funding to GML was unsecured; that the abbreviated General Ledger shows that $203,000 was trans- ferred from ICE to GMAC at the end of April 2004, and this amount was paid to “?????”; that the $203,000 went to an es- crow account, he had no clue what it was so he made the entry the “?????”; that eventually the $203,000 was loaned to Stan- 8 The abbreviated ledger has columns specifying the date of the transaction, a description of the transaction, the cash amount involved, the amount to or from “Intercompany Ice,” and the “Grenada Loan.” 9 Subsequently, Respondents’ attorney stipulated that the services of the law firm of Harris and Geno were performed on behalf of Grenada, LLC, and Harris and Geno did not perform services on behalf of Gre- nada Manufacturing Acquisition. (Tr. 304.) ford who works for GML and was a project manager for GSA at the time of the trial herein (on the ICE Industries Organiza- tional Chart, GC Exh. 15, there is a Stanford listed as “Mfg. Mgr.” under Grenada Acquisition Corporation); that Stanford had to get caught up on taxes; that ICE Industries was working to build up GML but at the same time ICE Industries wanted to make sure that if it walked away from the purchase, ICE Indus- tries would take as much as possible with it; that GMAC was not part of certain of the transactions listed for December 31, 2004, because the transactions were done in the normal course of business through Deerfield Manufacturing; that customer Electrolux erroneously deducted steel from the GML check when the deduction should have been from Deerfield; and that some of the December 31, 2004 entries show how the cus- tomer’s errors were corrected. When called by Respondents, Anderson testified that origi- nally it was not his intent to stay with Ice’s company once it bought GML, Ice asked him to stay for a while to help with the transition, and he agreed provided Ice pay him $50,000 and pay North Central Planning Development the $2,216.74 he owed it. On cross-examination, Anderson testified that the date of the entry of the $50,000 payment to him on General Counsel’s Exhibit 16 is March 3, 2004; that originally it was anticipated that the sale would go through 2 or 3 months after they entered into the Management Agreement and the Asset Purchase Agreement; that the sale was delayed by the bankruptcy pro- ceeding; that he did not know what the December 31, 2004 entry, namely “Expense Retainer (BJ)” on page 2 of General Counsel’s Exhibit 16 meant, there is no amount with the entry, and he did not receive any money from GMAC in December 200410; and that payments from GML’s customers, payments for GML’s scrap metal, and funds from ICE Industries were co- mingled in one bank account, and GML’s bills were paid out of that account. In response to questions of Respondent’s attorney, Lum- brezer, testified that there were points up to the date of the bankruptcy hearing and subsequent purchase by ICE Industries that ICE still would have walked away from the purchase be- cause there was a certain threshold that it could not cross; that one of the possible deal breakers was the need for an agree- ment with the PBGC; that GML’s (and GML’s predecessor’s) pension fund had been under funded by between $1.5 and $3.5 million, which was a huge liability; that on the morning of the final bankruptcy hearing in late February or early March 2005 something was worked out with PBGC; that in late 2004 or early 2005 the environmental issues were resolved so that ICE Industries was not liable for GML’s and its predecessor’s pol- luting, which would have bankrupted all of ICE Industries; that at one point ICE Industries financed GML for almost $2 mil- lion, and all but $600,000 was unsecured; that in reality every- thing was unsecured because there were no assets to back up 10 With respect to an updated version of GC Exh. 16 (marked for identification as GC Exh. 42), which had $50,000 in the entry for De- cember 31, 2004, “Expense Retainer B.J.,” Anderson testified that it looks like it is an internal entry done to correct a prior posting, and he did not receive any payment in December 2004. Counsel for the Gen- eral Counsel did not offer GC Exh. 42 into evidence. (Tr. 383.) GRENADA STAMPING AND ASSEMBLY, INC. 1165 even the secured interests, there were too many people in front of ICE Industries; that GSA finally took over the involved op- eration on March 30, 2005; and that every contract that cus- tomers and vendors had with GML was voided because ICE Industries did not want to be bound by anything. On January 24 Hardman, Collins, Paige, Topp, and Walker met with company representatives Melton and Anderson. The purpose of this meeting was to extend the collective-bargaining agreement. General Counsel’s Exhibit 6 reads as follows: TEMPORARY AGREEMENT BETWEEN GRENADA MANUFACTURING, LLC AND UNITED STEELWORKERS OF AMERICA, LOCAL 202-A THE SUBJECT AGREEMENT IS EXTENDED FROM JANUARY 31ST, 2005 TO FEBRUARY 23RD, 2005. AGREED ON 24TH DAY OF JANUARY, 2005 BY: .. .. Hardman, Collins, Paige, Topp, and Walker signed for the Un- ion. In the column designated “FOR THE COMPANY” Ander- son signed as president and Melton signed as human resource manager. Hardman testified that he asked why they just did not extend the contract until the Purchase Agreement is done so he would not have to come to Grenada every month for an exten- sion; that Anderson said that the Bankruptcy Court had assured them that the Bankruptcy Judge would sign the papers on Feb- ruary 23, 2005; and that if they needed more time, Anderson would fax him the extension for his signature so that he would not have to keep coming back to Grenada. When called by the Respondents, Anderson testified that on the day of the final hearing in the bankruptcy proceeding, Feb- ruary 23, PBGC agreed to accept a specified amount from ICE Industries to settle the pension liability issue.11 On February 24 or 25 Hardman telephoned Melton and he was informed by Melton and Anderson, who was in Melton’s office, that the bankruptcy judge had finalized the paperwork and by law the creditors had 10 days to appeal. Hardman testi- fied that he told Melton that they needed another extension and Anderson said, “Oh no, we’re not extending the contract any- more” (Tr. 40); that he asked why and Anderson said that he was advised by his attorneys not to do any more extensions; and that he told Anderson that he would call the Union’s attor- ney. General Counsel’s Exhibit 14 is a 21-page order dated March 10, 2005, signed by Judge David Houston which grants the amended Motion to Sell Substantially All of the Assets of the Debtor-in-Possession, Free and Clear of liens, Claims and Interest, With Assumed Liens, Claims and Interest Attaching to the Transferred Assets, Outside the Ordinary Course of Busi- ness (the “Sale Motion”), which order was prepared by Harris and Geno. According to the testimony of Tarik Johnson, who is an at- torney in Grenada, on March 16 or 17, Gore, who is the Gre- 11 The amount is specified on p. 10 of GC Exh. 14. nada County attorney and represented GML, telephoned him, told him that he was looking for someone who had no affilia- tion with GML, and asked him if he was interested in oversee- ing a poll of GML’s employees; that he told Gore that he was; that the next day Anderson telephoned him and told him that the voting would take place on March 24 and would probably start on the first shift around 7 a.m.; that “pretty much” (Tr. 58) the only instructions that Anderson gave him was that he should be at the plant at 6:45 a.m.; that Anderson told him what date the polling would take place; and that he had no input with respect to the selection of the date. Melton testified that the idea of a poll was first considered “[j]ust a very few days” (Tr. 230) before the poll; that the de- cline in union membership was something he Gary Houston, and Anderson were concerned about; that the Company was trying to get the union dues paid and the Company was behind on submitting the dues to the Union; and that the Union did receive the dues owed. Melton testified that he was present at a meeting on March 23 when the local union officials, Collins and Paige, were first advised about the poll; that either he or Anderson prepared General Counsel’s Exhibit 38, which is a record of the meeting, contemporaneously with the meeting; that he is familiar with the document and it seems to be accurate; that at the meeting he provided the officers of the local union with a notice that was going to be posted at the facility that announced the poll; that the notice had not been posted in the facility prior to this meet- ing with Collins and Paige; that he was not sure what time of day this meeting was held; that at the time of the meeting with Collins and Paige the date, time and location of the poll had already been determined and all of the arrangements with John- son had been determined; that he did not make the arrange- ments with Johnson and he is guessing that the arrangements were made a couple of days prior to the poll; that the Union officers objected to the short notice of the fact that this poll was going to be conducted; that the union officers said during this meeting that they needed time to consult with the International representative or higher ups in the Union; that “[w]e told them that it was just a poll was all it was, just to get the true feelings of the people” (Tr. 235); that he or Anderson told Collins and Paige, in essence, that “[t]his isn’t anything you need to be concerned about. It’s just a poll” (Tr. 237); and that they told Collins and Paige it’s a poll of everyone’s opinion. The Company don’t [sic] understand why a day or a month matters in a circumstance like this. Our hands were tied until we received word that the [Bankruptcy] judge had signed the court documents. It wasn’t like something we had planned or intended to do or dreamed about or pondered over or anything like that for a period of time. [Id.] Melton further testified that the poll was something that had been thought about for a short period of time; that he never told the union officials what the Company intended to do if there was a majority vote that did not support the Union; and that he did not remember (1) the question of the Union having an ob- server during the polling come up at this meeting, and (2) whether there was any mention made to the Union as to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166 whether they might want to have someone present at the count of the ballots. General Counsel’s Exhibit 38 reads as follows: 3-23-05 MEETING WITH LIN COLLINS AND BENNIE PAIGE REGARDING THE POLL CONCERNS THEY HAD: • WHY IS THE COMPANY DOING THIS? (TO DETERMINE THE FEELINGS OF THE PEOPLE DUE TO THE MEMBERSHIP BEING SO LOW) • WHAT IS THE COMPANY GOING TO DO WITH THIS INFORMATION? JUST TRYING TO DETERMINE WHAT THE PEOPLE WANT. (MANAGEMENT ALWAYS WANTS TO KNOW THE FEELINGS OF THE EMPLOYEES IN MATERS RELATED TO THE WORK ENVIRONMENT) • WE DON’T KNOW IF THIS IS LEGAL OR NOT; WE HAVE TO CONSULT WITH OUR REPRESENTATIVE. THAT’S WHY WE ARE GIVING YOU THE COURTESY OF INFORMING YOU BEFOREHAND AND ANSWERING YOUR QUES- TIONS; BUT YOU CAN TALK TO YOUR REPRESEN- TATIVE ALSO—KEEP IN MIND THIS IS ONLY A POLL) [no “ (in original)] • WHO IS THIS 3RD PARTY OBSERVER? (SOMEONE THAT WAS NOT RELATED TO THE COMPANY OR THE UNION. HE WILL BE AVAILABLE TO MAKE SURE EVERYTHING IS HANDLED ABOVE BOARD) • WE ARE NOT SO SURE THAT THE PEOPLE IN THE UNION CAN VOTE—BY THEIR CARDS THEY HAVE INDICATED THEIR CHOICE AND WE DON’T CARE WHAT YOU DO WITH THE NON-UNION PEOPLE. (THE COMPANY DOES NOT DISTINGUISH ONE BETWEEN THE OTHER— EVERYONE IS AN EMPLOYEE AND SHOULD HAVE THE RIGHT TO EXPRESS THEIR OPINION. WE WANT EVERYONE TO VOTE. IT’S THEIR OPINION AND WE WOULD LIKE TO KNOW HOW THEY FEEL. [no “) IN ORIGINAL] • YOU GUYS HAVE BEEN PLANNING THIS FOR A WHILE NOW AND TO TELL US TODAY AND HAVE THIS THING TOMORROW—WE NEED MORE TIME TO STUDY THIS. (REMEMBER, IT’S A POLL OF EVERYONE’S OPINION, THE COMPANY DON’T [SIC] UNDERSTAND WHY A DAY OR A MONTH MATTERS IN A CIRCUMSTANCE LIKE THIS. OUR HANDS WERE TIED UNTIL WE RECEIVED WORD THAT THE [BANKRUPTCY] JUDGE HAD SIGNED THE COURT DOCUMENTS.) • WHY DOES GMAC WANT TO DO THIS—THIS LOOKS LIKE SOMETHING THAT ICE INDUSTRIES MIGHT DO AFTER THEY TAKE OVER? AGAIN, IF WE READ THIS NOTICE, IT STATES THE MEMBERSHIP IS VERY LOW AT THIS TIME—WHY WE DON’T KNOW. IS THAT AN INDICATOR THAT THE MAJORITY OF THE EMPLOYEES DO NOT WISH TO BE REPRESENTED BY A UNION? MANAGEMENT DON’T [SIC] KNOW AND IT WOULD BE WRONG TO US TO BE PRESUMPTOUS JUST BASED ON THAT FACT. WE TRULY WANT TO KNOW AND FEEL THE PEOPLE—ALL THE PEOPLE HAVE THE RIGHT TO LET US KNOW WITHOUT ANY . . . [G]UESSING ON OUR PART. [no “(“ or “)” in original] Paige testified that he is a department leader with GSA; that he is treasurer of the Union; that the Union has represented employees at the involved facility since 1967; that he attended a meeting on March 23 with Collins; that Melton and Anderson were present at this meeting; that at this meeting the Company presented him and Collins with a notice that the Company was going to post on the bulletin board about a polling the next day; that General Counsel’s Exhibit 7 is the notice that he and Collins were given that day; that Melton and Anderson said that it was “[j]ust a poll. And they say [sic] it wasn’t going to take no [sic] effect on anyone” (Tr. 246); that the company representatives said that the poll was to see how many of the employees wanted to be represented by the United Steel Work- ers of America; that Collins said that they needed to call their representative or lawyer and they did not have enough time to do it before the next day; that when he asked why the concern if they are in bankruptcy and going out of business, Anderson said that he had been hired the day before; that the meeting occurred about 1:30 p.m.; that he works on the first shift which is from 6 a.m. to 2:30 p.m.; that on March 23 he was working to 2:30 p.m.; that the second shift starts at 2 p.m.; that the com- pany representatives told him that the Company hired an attor- ney, Johnson, who was not affiliated with the plant, to conduct the poll; that the Company did not discuss observers and the Company indicated that Johnson would count the ballots once the count was over; that Melton said that Johnson would do it all and the Company was not supposed to have anything to do with it; that the poll was supposed to begin at 7 a.m. the next day; that he did not speak to the entire unit before the poll be- cause he did not have the time in that he had to go back to work after he left Melton’s office; that had he been given more notice he would have called a special union meeting and told the em- ployees what he had been advised by the International repre- sentative or the International lawyer, and, if the poll was legal, he would have made sure that the Union had someone to ob- serve it, just like the Company did, and to help count the votes to make sure the vote was counted right; that the two union bulletin boards were taken down the week after the poll; and that at least two union members were not at work the day of the poll and if he had been given sufficient notice, he would have contacted these individuals. On cross-examination, Paige testified that he tried to tele- phone Hardman the afternoon of March 23, he was unable to reach him, and he left a voice mail; that he thought that Collins spoke with Hardman but he was not sure; that he had no direc- tion from the Union prior to the poll on what to do, and whether to vote or not to vote; that he did not know that the purpose of the poll was to determine the union support, he had a lot of faith in Melton and Anderson, he always respected what they said, and he had no reason to think that they would tell him a lie; and that if the Company wanted to harass the nonunion employees about joining the Union, that was fine. Collins testified that the Union had represented the employ- ees at the Grenada facility for over 30 years; that on March 23 GRENADA STAMPING AND ASSEMBLY, INC. 1167 he was called to Melton’s office, along with Paige, who was the Treasurer of Local 202, between 1 and 1:30 p.m.; that Ander- son was present and Melton said that they were going to have a poll to determine how many people wanted to be represented by the Union; that he objected, saying that he thought it was illegal; that they said, “[t]here’s no problem with it. It doesn’t mean anything. We just want to find out.” (Tr. 282); that Paige said that he did not have a problem with them doing a poll on nonunion members, but union members had already spoken by being members; that Melton said that they were going to have an independent person, Local Attorney Leon Johnson’s son, do the poll the following day; that he told Melton and Anderson that it was illegal as far as he was concerned because they were going to do the poll the next day; that Melton and Anderson showed them a notice (GC Exh. 7), of the poll which the Com- pany was going to post; that this was the first time he saw the notice; that he told Melton and Anderson that he felt that by them giving him and Paige notice on Wednesday of a poll to be taken on Thursday, there was some kind of ulterior motive, and he needed time to contact the Local’s International representa- tive; that Melton and Anderson did not offer the Union the opportunity to have an observer present at the poll or at the ballot count; that he left work that day at 2 p.m.; that as he was leaving the building he saw the aforementioned notice posted in the entrance of the plant; that he telephoned Hardman, spoke with him about 4 or 4:30 p.m., and told him about the poll; that Hardman told him that he would contact the attorney for the International; that he did not hear back from Hardman before the next morning when he reported to work at 5:45 a.m.; that he did not have a chance to speak with the other employees about the poll because there was not enough time; and that if he had been given more notice of the poll he would have had an op- portunity to contact the International representative who in turn could have contacted the International’s attorney, and he would have met with the employees and explained to them what the polling was all about and what it could mean for the Local. On cross-examination, Collins testified that when he spoke with Hardman over the telephone, Hardman told him that he thought that the poll was illegal; and that he did not know that if the Union lost the poll, the Union would no longer be recog- nized. General Counsel’s Exhibit 7, which was posted after Ander- son and Melton met with Collins and Paige, reads as follows: NOTICE Since the union membership is so low, Grenada Manufacturing Acquisition Corporation wants to deter- mine the workforce’s desire for union representation. In accordance with that wish on Thursday March 24, 2005, Grenada Manufacturing Acquisition Corporation will con- duct a poll to determine that level of interest. The poll will be conducted in the cafeteria. First shift polling will begin at 7:00 am. Second shift polling will begin at 2:00 pm. Employees will be released to vote by department. Any question about the ballot or what it means can only be answered by an independent 3rd party observer. Once an employee has completed their vote, the em- ployee will put their ballot in the sealed ballot box. The ballot box and left over ballots will be sealed up and stored in a secured location until the second shift. After all employees who wish to vote have, an inde- pendent 3rd party will count votes. [Emphasis added.] On March 23, Collins telephoned Hardman. Hardman testi- fied that Collins told him that Melton called him and Paige in at the end of their shift; that Melton told them that they were get- ting ready to do a survey the next morning at 7 a.m. to see how many people still wanted to be represented by a Union; that he told Collins that he thought that such a survey would be illegal but it was late in the day, the attorneys had gone home, there was nothing he could do, and he would telephone the Union’s attorney the first thing the next morning; that he asked Collins who was doing the survey and Collins told him Melton and Anderson; that he asked why they would be concerned and Collins told him that Melton and Anderson had been hired by Ice; and that if he had been advised earlier that the poll was going to occur, he would have (1) told Collins to talk to all of the workers, (2) had people at the polls to verify who was vot- ing, (3) made sure that there were no managerial or clerical people, (4) insisted that the Union have some say as to who the third-party representative would have been, and (5) made sure that the Union had people at the vote count to verify its accu- racy. On March 24 Johnson arrived at the involved Grenada plant at 6:45 a.m. He testified that he met with Anderson who ex- plained that they were conducting a voting poll regarding a union; that Anderson gave him the ballot sheets and a ballot box; that he did not receive any further instructions and “they pretty much let me conduct the process the way I saw best” (Tr. 61); that the ballot box was already upstairs in the cafeteria where the poll was conducted; that General Counsel’s Exhibit 10 is a diagram he drew of the way the cafeteria was set up during the voting; that during the voting Human Resource Manager Melton and payroll employee Anita Yancey were present in the cafeteria; that he did not ask Melton to stay in the cafeteria during the voting; that Melton sometimes sat at the table with Yancey, who had an employee roster; that the ballot box was placed on the same table; that at times Melton was back and forth, “[h]e would leave out of the cafeteria area” (Tr. 63); that he had groups of three employees go to Yancey so that she could “check off their names . . . so they could keep an accurate count of who voted” (Tr. 64); that the table where Melton and Yancey sat was 10 to 15 feet from the closest vot- ing table; that employees started coming to him about 7 a.m. in groups of 2 to 15; that as the employees entered the cafeteria he had them sit in an area away from the voting table area; and that he introduced himself to the employees, telling them I was a local attorney and that I was overseeing the voting process to make sure that no one was harassed or intimidated. I also explained to them that I am not affiliated with Grenada Manufacturing whatsoever and that I didn’t have an interest in the outcome of the results of the voting. [Tr. 65.] Johnson further testified that he told the employees to direct their questions to him; that he read the ballot to the employees; DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168 that he kept the ballots in his possession the entire time; that he did not read from a script; that he did not say anything else to the voters, except a couple of voters may have asked him how they should vote and he told them individually that it was up to them as to whether they should vote yes or no for the Union; that after he gave the employees the instructions, he asked them if they had any questions; that if no one had any questions, he called the employees up in groups of three to go over to the table where the employee roster was located; that he would hand the three employees their ballots and then they would tell Yancey their names; that he then had the three employees go the three voting tables; that there were no dividers or curtains or anything blocking the view of the tables; that once the em- ployees voted they took their ballots and dropped them in the ballot box on the table where the employee roster was kept; that he told the employees to fold their ballot and insert it into the ballot box; that there were two voting sessions, namely 7 a.m. and 2 p.m.; that the cafeteria was set up the same, the proce- dures were the same, and Melton and Yancey were at the same table for both sessions; that he stopped the session when either Melton or Yancey told him that everybody had voted; that after the second session Yancey checked how many people were on her roster and how many people voted, and then he, Melton, and Yancey counted the ballots; that Yancey was the one who checked the employees off on the roster of employees; that Melton was familiar with some of the employees and he as- sisted Yancey in locating some of the employees names; that he stood next to the employee roster table while the names were checked off; and that Yancey did not ask anyone to verify their identity. On examination by Respondents’ counsel, Johnson testified that only he talked to the employees while they were in the waiting area in the cafeteria; that he told them that I was here to ensure that there were no harassments or intimi- dation. That any one—that no one was intimidated or har- assed during the process to make sure that the voting process ran smoothly and it was a fair process. [Tr. 74.] Johnson further testified that while he was overseeing the poll he did not witness any acts of intimidation, threats, or harass- ment; that he was not aware of any employee being forced to vote against their will; that one employee did not take a ballot and he refuse to vote;12 that the ballot box was a metal box with a little opening in the top, and it had a slide opening on the side with a loop for a lock to keep it shut; that he was given a pack- aged lock and he opened the casing and removed the lock and the two keys that came with the lock, and he “took possession of both keys” (Tr. 77); that he made sure that the ballot box was empty before the voting took place; and that when the first session ended at about 8:30 a.m. he opened the box and taped the opening at the top from the inside of the box, closed the box, taped the opening at the top of the box from the outside of the box, locked the ballot box with the lock that was provided, and took the box downstairs to an office. Johnson further testi- fied as follows: 12 Johnson identified Hardman, who was sitting in the courtroom at the time, as the employee who refused to take a ballot and vote. Q. Okay. And did you lock the office up when you left? A. Right. The office was locked. And I kept posses- sion of the key. [Tr. 79] [Emphasis added.] Johnson further testified that he then left the facility; that he returned to the facility about 1:45 p.m., took the ballot box back to the cafeteria, removed the inside and outside tape, and determined that the box had not been tampered with because no one could have gotten into the box to retape it from the inside; that Respondent’s Exhibit 38 is a copy of the blank ballot that was used13; that Respondent’s Exhibit 39 is a copy of the roster that was used for both shifts; that Yancey checked off the names on the roster; that the first page of Respondent’s Exhibit 39 indicates that Collins “Refuse[d] to vote”; that Respondent’s Exhibit 41 is (a) the sheet of paper on which he counted the “yes” and “no” ballots, and (b) a copy of the tape, initialed by him, which he used on the outside and inside of the ballot box between sessions; that his payment in no way influenced his ability to conduct a fair election poll; that he did not observe Melton trying to influence voters but he did observe Melton “say to employees or voters . . ., ‘Hello,’ or ‘How you doing?’ Just general speaking to them” (Tr. 84); that he did not observe Yancey saying much to the employees, and most of the time employees would just give their names; that he walked three employees to the table where the employee roster was located, he handed the three employees a ballot, the three employees gave their name to Yancey, each of the three employees went to one of the three voting tables—all of which had a chair, the three employees marked their ballot while either standing or sitting, he stood next to the table where the employee roster was kept while the employees marked their ballot, the three employees folded their ballot and placed them in the ballot box which was on the table where the employee roster was kept, and he then accompanied another three employees to the table where the employee roster was kept; and that he did not ob- serve anything intimidating or hostile. In response to further questions of counsel for the General Counsel, Johnson testified that his statements to employees concerning his assurance that there would be no harassment or no coercion of the employees voting pertained only to the time that the employees were present and actually voting in the cafe- teria because he was only there for that particular day; and that he did not know whether the employee who refused to vote may have been fired by the Company following the day of the poll. Johnson further testified that Yancey probably could have performed her task, namely getting the employee’s name and placing a check mark on the roster next to the name, without Melton but it might possibly have taken longer. Subsequently Johnson testified that with respect to the keys to the lock on the ballot box, he “kept the keys on my posses- sion the entire time.” (Tr. 91) He then testified as follows: 13 It reads as follows: Do you wish to be represented by the United Steelworkers of America? [ ] Yes [ ] No Union Union GRENADA STAMPING AND ASSEMBLY, INC. 1169 JUDGE WEST: You locked the facility? THE WITNESS: Correct. JUDGE WEST: You placed the locks—the locked box taped inside and out in [an] office in the facility? THE WITNESS: Right. JUDGE WEST: And you locked the office and you took the key to the office? THE WITNESS: No, I never had the key to the office. JUDGE WEST: Okay. THE WITNESS: I locked the box into that office. And the office was locked. [Tr. 91.] Johnson further testified that the ballot box was 12 inches long, 10 inches high, and 10 inches deep; that he did not recall whose suggestion it was to leave the box in the office out of his pos- session between sessions; and that it was his idea to leave the box in the office out of his possession between sessions. Paige testified that he worked on March 24; that the poll was conducted on that date; that he has a walkie-talkie and he heard Gary Houston, the general manager, call different supervisors on the walkie-talkie, telling them to release employees to go up to the cafeteria; that Houston called the supervisor’s name and told the supervisor to send their employees upstairs to do the voting; that no one told him that it was time to go vote; that he went upstairs to the cafeteria to vote between 1:30 and 2 p.m.; that prior to reaching the cafeteria no manager or supervisor told him that he was not required to vote or that there would be no discipline or reprisals based on the results of the poll; that when he first reached the cafeteria Johnson came up to the employees, introduced himself, told the employees that he was there to conduct the poll and make sure it was done right, and asked the employees if they had any questions; that Johnson gave the employees a ballot; that the ballot box was not on the employee roster table but rather on the table on the right of General Counsel’s Exhibit 10, next to the designation “wall with window”; that there was no one at the table where the ballot box was located and the nearest person to the ballot box was Melton and Yancey who were at the employee roster table; that the table at which he marked his ballot did not have any curtains or dividers; that there were two other employees with him when he voted; that while he was in the cafeteria Johnson did not tell him that he was not required to vote or that there would be no reprisals or discipline based on how he voted or on the outcome of the vote; that the table that Yancey and Melton were at was about 10 feet from where he filled out the ballot; that he went back to work after he place his ballot in the ballot box; and that later in the personnel office he was told by Mel- ton that the vote was 67 to 46 in favor of the Company. Collins testified that on March 24 his supervisor, James Galiday, told him that he needed to go upstairs to vote; that Galiday did not tell him that he did not have to vote if he did not want to; that prior to going to the cafeteria neither Galiday nor any other supervisor or manager told him it did not matter how he voted, if he decided to vote or that there would be no reprisals or discipline based on the outcome of the vote; that when he entered the cafeteria he saw a young man and then he saw Melton and Yancey sitting at a table; that there were no other hourly employees in the cafeteria at the time; that the young man told him that they were taking a poll, and if he wanted to be represented by a Union he would vote yes and if not vote no; that the young man did not show him anything and he did not say anything else; that he told the young man that he was not going to vote because he felt that the poll was illegal; that he was not given a ballot while he was in the cafeteria; that he went back to work; that later that day he telephoned Melton and asked him what the results of the poll were; that Melton told him that 67 employees did not want to be represented and 46 did want to be represented; that after the poll the Company did not continue to bargain with the Union and consult with the Union; and that no supervisor or manager told him that there would be no retaliation against him based on whether or not he voted. On cross-examination, Collins testified that he did not tell his supervisor that he did not want to vote; that his supervisor did not force him to go to the cafeteria; that he knew that he was free to go to the cafeteria or not; that he went to the cafete- ria to inspect the polling place; and that Johnson did not offer him a ballot because he told Johnson that he did not want to vote. When called by Respondents, Melton testified that he was in the polling area strictly to assist Yancey to identify the people who were coming in to vote; that Yancey was unsure of the names of the employees; that he did not talk to any employees while he was in the polling area; that he did help Yancey; that he was in the polling area for the entire polling period; that he, Yancey, and Johnson were present when the votes were counted; that he could not remember if Paige was there or not; that he did not remember Paige asking to be present when the votes were counted; that the vote count took place at 3 or 3:30 p.m. on March 24; that Johnson was in charge of the counting of the ballots, and after he did it twice, Johnson asked Yancey to verify his count; that after they were counted, Johnson put the ballots in sealed envelopes and placed the envelopes back in the ballot box; and that he had a copy of the ballots. On cross-examination, Melton estimated that there were about 70 employees on the first shift and about 30 on the second shift. He testified that Respondents’ Exhibit 46 is the ballots which were counted on March 24. Jermaine Seals, who was hired by GML in 2000, testified that he resigned from the Union in 2004; that on March 24 “[a]ll of us had to go up there and vote on the poll. And the guy they had up there he read us the rights about it. And everybody gave them their answer, yes or no about the Union” (Tr. 389); and that the black local attorney “said it was illegal to do it as far as voting on the Union thing” (Tr. 390), and “[w]ell you know for us to give a yes and a no about the Union.” (Id.) After objections to Respondents’ attempts to lead this witness were sustained, the following testimony was given on direct: Q. What, if anything, did Mr. Johnson tell you about the poll? A. I really can’t remember. You know because like it was how I do. I had to think before I do it. And I just, you know. [Tr. 391, 392.] . . . . DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170 Q. BY MR. MCKEE: . . . . Was the purpose of the poll communicated to you by Mr. Johnson, the attorney, at the poll? A. He spoke, yeah, upstairs. Q. What did he say? MR. DOOLITTLE: Objection. Asked and answered, Your Honor. JUDGE WEST: Overruled. Q. BY MR. MCKEE: You can answer. A. I really can’t remember what he said. It was a while back. [Tr. 398.] There was no cross-examination of this witness. James Clark, who has worked at the involved Grenada facil- ity for 22 years, testified that he resigned from the Union in 2003; and that he was not sure he read the notice of the poll but he heard about the poll. Clark testified as follows on direct: Q. What, if anything, was told to you regarding the purpose of the poll? A. It was just where we were going to vote the Union in or vote it out. [Tr. 400.] Clark further testified that he works on the second shift; that “[w]e was [sic] instructed to go upstairs to the break room up- stairs. And they was [sic] going to vote on the Union” (Tr. 402); and that “when we come in in the evening at two o’clock, we went straight. Everybody that—I . . . forgot who it was that instructed us. But they instructed us . . . . to go upstairs. And we would vote before we started to work.” (Tr. 402, 403.)14 Clark finished with the following testimony on direct: Q. And describe to us what occurred. A. Well, went upstairs. And there was a guy there I had never seen before. And I guess he was a mediator or what it was. And he was standing on—he was in a seat. And I don’t remember the exact words or anything, but he was there to make sure everything went right. And that’s what I understood. And they [sic] may have been others in there too, but I remember that guy because I didn’t know him. And he was a black guy and had a suit on. And so I—but what I heard that he was the mediator. Q. And to the best of your recollection, what did he tell you about the voting process? A. I can’t remember that. Q. And did anyone force you to go vote? A. MR. DOOLITTLE: Objection. Leading. JUDGE WEST: Sustained. Q. BY MR. MILAM: How did you get the ballot? A. I believe it was either handed to us, or we picked it up at the table. I can’t remember. Q. And what did you do with the ballot once you re- ceived it? A. I went and voted one way or the other. I believe we went to a different—it was like regular voting to me where I vote down at home. You go and make—mark what you 14 The Charging Party’s objection to this testimony was overruled. want to vote and turn it in. And that’s all. Didn’t take too long. [Tr. 403, 404.] There was no cross-examination. Norris Kendall testified that he has worked at the involved facility for 22 years; that he works on the first shift; that he was told the purpose of the poll was “to see whether they wanted to keep the Union or they didn’t want to keep the Union” (Tr. 406); that no one told him that it is now time to go vote; and that when he went to the polling area: It was a lawyer to represent the voting, to see whether it went right or wrong. And he done [sic] all the talking. He told us that he was there to make sure the election was run right and if we had any problems to see him. And he said this is for the Union vote. Vote yes or no if you for the Union or you do not want the Union. And he was the only one who done [sic] the talking. And if you need any help, you had to look for him. And he was standing right there. [Tr. 406.] . . . . . . . . Yes, sir. He did say that it’s your right. That wasn’t no- body [sic] putting you under any pressure to vote or not vote. That it was entirely up to you to vote or not vote. But if you voted, he explained about the election like I told you. Vote yes or no. And I was up there, I did not see nobody get no [sic] help from him. [Tr. 407.] Kendall further testified that Yancey and the lawyer gave him the ballot; and that the ballots were on the same table that Yancey was seated at. On cross-examination, Kendall testified that he resigned from the Union about 10 years ago; that he talked with Respondents’ attorney, Kenneth Milam, 2 months before the trial; that Milam talked with him about his prospec- tive testimony on the third day of the trial herein, December 14, just a few moments before he testified, which was immediately after Clark got through testifying; that the notice about the poll (GC Exh. 7) was posted in the plant for a week before the poll; that he was called on his walkie-talkie and told that his depart- ment should come up to the cafeteria and vote; that he did not know who called him on his walkie-talkie; that he was a team leader so he had a walkie-talkie; and that he voted in the same group that voted with Paige. Joe Frank Walker, who has worked at the involved Grenada facility for about 12 years, testified, with respect to what he was told about the purpose of the poll, that “[i]t was just gen- eral discussion as the best I remember that we were going to have an election whether or not the Union was going. The vote, I don’t remember anyone telling me specifically about” (Tr. 421); that he really did not recall who told him to go vote; that he was told to go to the cafeteria; that he was working on the first shift; and that [w]hen I went up there, they had an attorney to explain the process which we followed in voting. And the tables which we normally eat at were spaced approximately six feet apart or so. They had a ballot. And I don’t remember even how I got the ballot. Seems like the ballot was on the table, maybe. And sat down [sic] and voted. [Tr. 422.] GRENADA STAMPING AND ASSEMBLY, INC. 1171 Walker further testified that he did not recall a whole lot of what the attorney told him because he knew what it was about, “I didn’t pay much attention to . . . [what the attorney said]. I knew it was to vote to retain the Union or discharge it.” (Tr. 423.) Then Walker gave the following testimony on direct: Q. And did he say anything about—what, if anything, did he say about harassment or intimidation? A. Yes, that there would be none. No repercussions from the Company which way you voted. Didn’t matter. And it sure didn’t matter to him cause he was an inde- pendent advisor. Q. And then you went and—after you received your ballot, describe what you did. A. Over at the table there was just one person per ta- ble. And they were spaced, as I say, approximately six feet apart. And sat [sic] there and marked your ballot and put it in the receptacle in the corner of the room as well as I re- call. [Tr. 423.] On cross-examination, Walker gave the following testimony: Q. During the poll, when you first walked in there what was it that you recall . . . that the attorney, Mr. John- son, said to you? A. I believe that he held up this paper and was ex- plaining the voting procedure the best I can remember now. I don’t remember anything verbatim of what he said. But he had the paper. He was there. I remember seeing him standing in the side of the building there. . . . . Q. You already knew. So you weren’t paying very much attention to what he was saying? A. Right. Q. And can you tell me to the best of your recollection what it is that you do recall him saying? A. I do recall that he said there wouldn’t be any reper- cussions and that he went through the instructions down there. I remember him saying it wouldn’t be any repercus- sions from this—the Union or the Management as to how you voted, you know. Q. Do you recall him saying anything else? A. Yes, he said some other things, but I don’t recall. [Tr. 424, 425, and 426.] Walker further testified on cross-examination that he gave an affidavit to the Board on May 2; that there is nothing in his affidavit to the Board about repercussions or harassment or intimidation; that he did not recall Melton being in the voting area; that Yancey was in the voting area; that in his aforemen- tioned affidavit to the Board he indicated that he did not see Yancey in the voting area; that just before he testified at the trial herein Respondents’ attorney, Milam, told him, “that they wanted to know about the polling.” (Tr. 432.) According to his testimony, on the morning of March 24 Hardman sent Melton a letter (a) demanding recognition and asking them to schedule some time for meetings to start con- tract negotiations, and (b) requesting information. (GC Exh. 8). The letter reads as follows: March 24, 2005 Via Facsimile to 662/226-1166 & Certified Mail, Return Receipt Requested Mr. Chet Melton Vice President Grenada Manufacturing Acquisition Corporation 635 Highway 332 Grenada, MS 38901 Re: Grenada Manufacturing Acquisition Corp. and United Steelworkers of America Dear Mr. Melton: Grenada Manufacturing Acquisition Corporation (“GMAC”) recently acquired the assets of Grenada Manu- facturing, LLC (“GML”). The United Steelworkers of America, AFL–CIO–CLC (“USWA”) was the bargaining agent of the employees of GML. GMAC has hired a sub- stantial and representative complement of its workforce and is engaging in substantially normal operations. The vast majority of GMAC’s bargaining unit employees had been employed by GML. As such, GMAC is the successor employer to GML. By this letter, the USWA demands that GMAC recog- nize it as the exclusive representative of those employees who are employed within the same jobs as had been in- cluded with the GML bargaining unit. Please contact me as soon as possible to schedule a meeting to commence bargaining. In order to prepare for bargaining, the USWA de- mands the following: 1. A listing of all bargaining unit employees pres- ently employed by GMAC, including the names, addresses, dates of hire, and job titles held by each employee. 2. A listing of all supervisory and management employees employed by GMAC at the Grenada plant. 3. A detailed description of the terms and condi- tions of employment, including wages and benefits, presently provided by GMAC to the hourly employees of the Grenada plant. 4. A description of any plan that GMAC presently has to hire additional employees at the Grenada plant. The USWA reserves the right to amend this informa- tion request. Very truly yours, Isaac (Fat) Hardman Staff Representative Hardman testified that the Company never provided the infor- mation he requested. On cross-examination, Hardman testified that he did not protest the poll in his March 24 letter because he thought the poll was illegal, he did not think he had to protest it, and Ice had committed to bargain with the Union so that is what he addressed; that he did not try to telephone anyone at DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172 the involved Grenada facility on the morning of March 24 re- garding wanting his own people at the poll, which began at 7 a.m.; and that the only relevant unfair labor practice charges that he was aware of were filed after the poll. General Counsel’s Exhibit 9 reads as follows: ICE INDUSTRIES 3/30/2005 . . . . Dear Mr. Hardman, The Collective Bargaining Agreement between Gre- nada Manufacturing, LLC and the United Steelworkers of America (USWA) union expired on February 23, 2005. On March 10, 2005 Bankruptcy Judge David Houston en- tered an order approving the sale of all assets of Grenada Manufacturing LLC to Grenada Acquisition Corporation (GMAC) and GMAC did not assume any obligations of the former company under the collective bargaining agreement. Numerous employees made GMAC aware that they no longer wished to be represented by the union. For this and other reasons, a poll of all employees was conducted on March 24, 2005 and over sixty percent of the employees in the bargaining unit indicated they no longer wished to be represented by the union. Accordingly, GMAC has solid evidence that the majority of our employees do not wish to be represented by the union and GMAC declines to recog- nize the USWA as the exclusive bargaining agent for its employees. Sincerely yours, Chet Melton With a cover letter dated March 30 (GC Exh. 26), Johnson submitted his invoice, dated March 28, to GML, attention Anderson, for $1200 for 8 hours of service rendered on March 24, namely, monitoring, counting, and a detailed report on all activity relating to the process. Lumbrezer testified that Respondent’s Exhibit 36 is the Bill of Sale between GML and GMAC; that they were able to exe- cute this transaction because the Bankruptcy Order had permit- ted it; and that the date of the document, “3–30–05,” is the accurate date on which GMAC took over the company. Ander- son signed the document as general manager of GML. General Counsel’s Exhibit 39 reads as follows: NOTICE UNION DUES WILL NO LONGER BE WITHHELD FROM THE PAYCHECKS EFFECTIVE WITH THE CHECK YOU RECEIVE THIS WEEK. CHET 3–31–05 Melton testified that this notice was part of the Company’s response to the results of the poll; and that management also issued fairly prompt refunds to employees of dues that had been withheld since the date of the poll. On cross-examination, Collins testified that he had a conver- sation with Gary Houston about the dues checkoff and Houston told him that it was illegal for the Company to take out dues with a contract that expired. When called by the Respondents, Anderson testified that the Company ceased collecting dues because it no longer had a contract with the Union and it did not feel it had the right to deduct those moneys from an employee’s paycheck. On cross- examination, Anderson testified that refunds were promptly made to employees for over withholding dues out of their pay- check; and that, as demonstrated by General Counsel’s Exhibit 41, GML was negligent and tardy in remitting dues GML had deducted from employees’ paychecks to the Union.15 Gary Houston testified that after the conclusion of the bank- ruptcy proceeding in March 2005 he, with Melton and Stan- ford, conducted employee meetings for the purpose of inform- ing the employees of some changes that Grenada Stamping intended to make concerning their terms and conditions of em- ployment; that GMAC assumed the name of GSA around the time of the bankruptcy conclusion; that the employees were told that they had to fill out applications to become employees of GSA; and that the day after the sale of GML was approved he had a meeting with the employees at the Grenada facility and told them that everyone was going to be retained. By check dated April 1 (GC Exh. 25), Grenada Acquisition Corporation paid Johnson the $1200. In response to questions of Respondent’s attorney, Melton, testified that on April 1 the employees of GML transferred to Grenada Manufacturing and Stamping; and that is also the time when his paycheck changed. On cross-examination, Melton, in effect, testified that he was not able to recollect what entity was paying him between February 2004 and April 1, 2005. As noted above, Melton at one point testified that from the time the Management Agreement went into effect through the end of 2004 he was paid by checks of Grenada Manufacturing Acqui- sition Corporation. When called by the Respondents, Anderson testified that the involved employees were employees of GML until the final Bill of Sale was executed between GML and GSA on March 30. When called by Respondents, Melton testified that after GSA took over on or about April 1, the new Company intro- duced new personnel policies and procedures (R. Exh. 42); and that each page of the policy was posted shortly after April 1 on one of the main bulletin boards where they remained for 30 days. On April 2, Melton called Paige out back at work and told him that someone had said that his attitude had changed and he was now discussing union business on the floor. Paige testified that Melton also told him that if Gary Houston knew, he proba- bly would be disciplined and could be dismissed. On cross- 15 P. 2 of GC Exh. 41 indicates that as of “10/01/2004” the Union had a claim against GML for $16,985.54. Anderson testified that the money was deducted from the employees’ paychecks, it was deposited into GML’s bank account, and it was not remitted to the Union in a timely fashion. Anderson also testified that he was not in a position to testify that this indebtedness was ever satisfied but he was aware that payments were periodically made to the Union. GRENADA STAMPING AND ASSEMBLY, INC. 1173 examination, Paige testified that Melton said that one employee felt that Paige was threatening and harassing him but Melton did not tell him who the employee was; that since he had not talked to employees about the Union on the floor, he himself felt threatened by Melton’s comments; and that Melton did not give him a written warning or any discipline. When called by the Respondents, Melton testified that he met with Paige on April 2 because he had several people com- plain that they felt like they were being harassed by Paige talk- ing to them on the job16; that he told Paige that the Company could not have anybody harassing anyone in the workplace, and the Company had longstanding rules against that; that this meeting took place just outside of Paige’s department; that he did not threaten or discipline Paige; and that Respondent’s Exhibit 43 is a copy of the email he sent to Gary Houston, Stanford, and Anderson regarding this meeting. Respondent’s Exhibit 43 reads as follows: Due to comments received from some employees, I held a conversation with Bennie this morning . . . . I told Bennie there have been comments from employees that he has been making statements concerning the Union situa- tion while at work and has made them feel uncomfortable. I reminded him “as a friend” that we cannot have our em- ployees feeling uncomfortable at work due to comments or actions by another employee. People should be able to come to work, do their work and not feel in any way ill at ease or uncomfortable. He told me that he had not been doing anything like that at work and he does know the rules on doing so. He did admit that Wyodia Bland had approached him but Bennie says he told Wyodia that he was not going to talk to him about anything. He also mentioned a conversation that he and George Bullins had when George made the statement that the company seemed to do really good for the folks. Bennie asked him in what respects he was talk- ing about and George told him the vacation thing. Bennie said the company really didn’t do anything except change the vacation from June to January—and they already had 4 weeks vacation, so nothing really changed. I again told Bennie that we believe, and in particular Gary, strongly that people should be comfortable at work and even though he thinks a lot of Bennie, he will not put up with people, either members or not, coming to him about comments another employee made that made them feel uncomfortable while at work. On April 21 Paige met with Anderson and Melton in Mel- ton’s office. Paige testified that Melton told him that they needed his help to stop talking union business on the floor; that Melton told him that he had talked to him prior to this and that if this is going on, they need it to stop; that it was his under- standing after this meeting that he could not talk about union business on the floor; that he told them that he talked to a cou- ple of people but he did not think it was about union business; 16 Respondents did not call the alleged complainants, namely Tony Burt, Wyodia Bland, Stanley Booker, and George Bullins, to testify at the trial herein. and that he was not aware that the Company, prior to his April 21 conversation, restricted any other employee topics in the past. On cross-examination, Paige testified that Melton said that he had talked to me before and it had come up again; that Melton said that he needed my help to stop it if it was still go- ing on; that he was not talking to anyone about union business, he was a department leader, and he had to talk to people to instruct them on what to do; that throughout his tenure with the Union he had never discussed union business on the floor; and that while he was aware of GML’s solicitation and distribution policy (R. Exh. 45), he did not discuss union business on the floor out of respect for the Company.17 Collins testified that at the April 21 meeting Melton told him that he did not want him talking anything about the Union or the past, and if anybody asked him anything about these issues, he should send those people to Melton; that he told Melton that he never discussed union business on the floor but if someone asked him a union-related question, he would answer it; that Anderson told him that he “could no longer talk about Union business on the floor since ICE Industries had bought the Com- pany” (Tr. 293); that Melton said that the employees could talk about the job or any casual conversation; that Melton told him that he had to be careful because somebody might be trying to set him up by coming up there and telling him something he, Collins, said; and that he felt threatened in that they kept insist- ing that he not discuss the Union on the floor and they men- tioned retaliation. On cross-examination, Collins testified that if someone asked him a question about the Union he would answer it even if it was during working times; that he did not consider answer- ing such a question during working time to be a violation of the no-solicitation distribution rule; and that it was the policy of the union leadership not to discuss union business in the plant but to discuss it at the union hall or outside the plant, and this was done for a number of years. On redirect, Collins testified that he understood that the Company did not want employees conducting union business while they were on the clock; and that prior to the above- described April 21 meeting he did not believe that the rule against conducting union business would apply just to answer- ing a quick question from someone or talking about the Union just in a passing reference, something very short. When called by Respondents, Melton testified that he called the late April 2005 meeting because he felt that Paige needed a friendly reminder that the new Company had taken over, the employees did not have a Union at that point in time, and all matters relating to employees should be referred to him; and that he told Paige again about the no-solicitation rule. Gary Houston testified that sometime prior to June 2005 he held a meeting with employees in which announcements were 17 GML’s policies and procedures manual, adopted “8–99” includes the following: B. SOLICITATIONS AND DISTRIBUTION Organizational work in behalf of or in solicitation for membership in any organization may not be conducted or participated in during working time by any employee. Any such activities must be limited to breaks or other periods outside scheduled working time. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174 made concerning changes to employee health benefits which increased certain prescription copayments, changed health in- surance providers, and included dental coverage; that a 401(k) plan was established; that General Counsel’s Exhibit 36 is a notice of a meeting which was held on April 14; that he did not have a recollection of a meeting prior to April 14 where em- ployees were informed of the change in health coverage; that General Counsel’s Exhibit 37 is a notice of an April 7 meeting on the new 401(k), and he did not recall a prior meeting on this subject; that that General Counsel’s Exhibit 35 is a notice of an April 19 meeting on ICE Industries Voluntary Retirement Plan, and he did not recall a prior meeting of the employees at the Grenada facility on this subject; that in April 2005 employees were advised at a meeting that there would be changes concern- ing their vacation year and vacation pay rates; that the vacation year was changed from a fiscal year to a calendar year; that he did not think that there was a change in the amount of vacation pay an employee would receive; that in April 2005 GSA ceased following the grievance procedure that had existed prior to that time and instead had an open door policy, and he did not be- lieve that a meeting was held with employees regarding this; that he remembered a meeting where employees were told that from that time forward there would only be an open door policy but grievances were never discussed at this meeting where the results of the poll were discussed, which meeting was held within a week of the poll; that he did not know if he ever said anything about an open door policy and he did not recall being present when another manager referenced the open door policy; and that around April 24 the union bulletin board which had been maintained in the Grenada facility was removed. Paige testified that he took 1 week of vacation in June 2005; that he was paid 40 hours of his hourly rate; that this was not how vacation pay was calculated before April 1 in that before April 1 he would receive 8 percent of his annual earned in- come; that the 40 hours of pay meant that he was paid $200 less than then he had been paid before April 1; and that if an em- ployee worked 15 or more years, he received 4 weeks of vaca- tion at 8 percent of his annual earned income. Gary Houston testified that General Counsel’s Exhibit 34, which is a Grenada Stamping and Assembly, Inc. management staff organizational chart issued September 14, 2005, looks accurate. The chart lists Gary Houston as general manager, Stanford as manufacturing manager, and Melton as human resources. Gary Houston testified that around December 1 he was actu- ally hired by ICE Industries. Before that he was paid by ICE Industries as a consultant. Analysis Paragraph 11 of the complaint alleges that on March 24, 2005, Respondents, by an unnamed attorney, at Respondents’ facility, interrogated Respondents’ employees about their union sympathies by conducting a poll. In his opening, counsel for the General Counsel William LeMaster made the following statement: Although we concede that GMAC had a good faith un- certainty when it conducted the poll, the evidence will show that the poll was nonetheless illegal because the Employer failed to adhere to the safeguards set forth in Struksnes Construction, [165 NLRB 1062 (1967),] when it conducted the poll on March 24, 2005. [Tr. 25, 26; and emphasis added.] Struksnes Construction Co., supra at 1063 indicates as fol- lows: Absent unusual circumstances, the polling of employ- ees by an employer will be violative or 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 the Un- ion’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 oth- erwise created a coercive atmosphere. Counsel for the General Counsel contends that Respondent failed to comply with the last three above-described Struksnes safeguards; that assurances against reprisals were not given either by the notice of the polling or by supervisors; that John- son acknowledged that the language he used was intended for the time the employees were in the cafeteria voting; that to the extent that Kendall’s and Walker’s testimony might be inter- preted to be contrary to that of Johnson, such testimony is not credible because Kendall was not a reliable witness in that, contrary to his assertion, he did not vote with Paige, and Walker’s testimony is not supported by his own affidavit to the Board; that whether GSA succeeded in coercing or intimidating voters is not the standard; that the standard is the objective standard of whether it tends to interfere with the exercise of employee rights under the Act, Desert Toyota, 346 NLRB 132, 145 (2005); that the presence of Human Resources Manager Melton and agent Johnson in the voting area during the entire voting process created an inherently coercive atmosphere and did not allow for a secret ballot vote of the employees to occur; that the Board has concluded that the presence of a high- ranking manager in the polling area is inherently coercive, Helnick Corp. 301 NLRB 128 (1991), and Eagle Comtronics, Inc., 263 NLRB 515 (1982); that Melton’s presence is the epit- ome of coercive; that Johnson, an agent of Respondent during the poll, was in a position to see employees vote and to have interfered with the secrecy of the ballot; that Grenada Stamping violated Section 8(a)(5) when it failed to provide the Union with reasonable advance notice of the poll; that in Texas Petro- chemicals Corp., 296 NLRB 1057, 1063 (1989), enfd. in rele- vant part and remanded 923 F.2d 398 (5th Cir. 1991), rehearing denied 931 F.2d 892 (5th Cir. 1991), the Board added a re- quirement that the employer provide the union with reasonable advance notice of the time and place of a poll; that here while Grenada Stamping waited until the last possible second before notifying the Union, it made arrangements with Johnson about 1 week in advance of the poll; that reasonable advance notice gives the incumbent Union an opportunity to review the polling arrangements with Respondent, to be present when the ballot box is opened and the votes counted, and to allow the Union to suggest names of employees to be observers during the poll; that Respondent also misled the Union about the potential con- sequences of the poll; that Respondent apparently wanted to GRENADA STAMPING AND ASSEMBLY, INC. 1175 rush the poll in order to ensure that the Union did not have an opportunity to affect the results; and that the key word in the requirement set forth in Texas Petrochemicals Corp., supra, is “reasonable.” The Charging Party on brief contends that an employer vio- lates Section 8(a)(1) when it fails to comply with any one of the safeguards set forth in Struksnes, supra; Roanwell Corp., 293 NLRB 20, 23 (1989); and Montgomery Ward & Co., 210 NLRB 717, 724 (1974); that a poll is presumed to be violative of the Act and the burden is upon the employer to establish that he has observed all of the safeguards and falls within the exception of Struksnes, supra; and that whether GMAC became GML’s successor at the time of the Management Agreement, or at the time of the intermingling of funds, or at the time of the polling, or at the time of the sale is of no import; a duty to bar- gain with the Union attached to GML during each of these dates and hence to GMAC. Respondents on brief argue that since under Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), an employer is no longer permitted to withdraw recognition on the same basis as it could poll its employees and the Board has specified a higher standard of proof to support a withdrawal of recognition, polls are now one of the few methods by which employers can con- firm reasonable doubt of a union majority status; that despite the Board’s presumption against polling, the Board has failed to outline specific procedures for conducting a poll which are similar to those used in a representation election; that “the Board’s failure to address these issues should allow the em- ployers reasonable license in interpreting the few safeguards the Board has created in the form of Struksnes, [supra,] and Texas Petrochemicals, [supra]” (R. Br. 4) (emphasis added); that the Company provided adequate assurances against reprisal to the bargaining unit employees; that the notice of the polling, General Counsel’s Exhibit 7 “directly implied” (id. at 6) (em- phasis added) that employees who wished to vote could vote and employees who did not wish to vote were free to do so as well with the language “After all employees who wish to vote have [voted]. . . .”; that Johnson provided further assurances against reprisal to employees; that Walker testified that John- son said that there would be “[n]o repercussions from the Company which way you voted, Didn’t matter.” (Tr. 423); that Kendall testified that Johnson said, “[t]hat wasn’t nobody put- ting you under any pressure to vote or not to vote. That was entirely up to you to vote or not to vote.” (Tr. 407); that a speech to employees by a local attorney hired to conduct poll which informed the employees that they could vote however you please and that no reprisals would be taken against them was not coercive and offered adequate assurances against repri- sals under Struksnes, supra, Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 867–869 (6th Cir. 1982); that no acts of reprisal or intimidation were taken against employees by the company during the voting or afterwards; that the employees were polled by secret ballot; that the ballot box was controlled by Johnson at all times, except for a brief period of time between shifts when the locked and sealed box was stored in a locked office; that while there were no curtains or dividers at each voting table, Johnson situated the voting tables so that the employees’ voting would take place out of the sight of management and fellow employees; that the employer had not engaged in any unfair labor practice or otherwise created a coercive atmos- phere at the time the poll was conducted; that the Union was provided with advance notice of the poll in accordance with the requirements of Texas Petrochemicals Corp., supra; that “Re- spondents submit the notice was reasonable under the circum- stances because advance notice was provided soon after the company decided to poll the employees in mid-March” (R. Br. 13) (emphasis added); that the Board has found advance notice of a poll 1 day prior to the poll to be permissible, Boaz Carpet Yarns, 280 NLRB 40, 44 (1986), and Hutchinson-Hayes Inter- national, Inc., 264 NLRB 1300, 1308 (1982); that the Union suffered no harm or prejudice from the fact that they were told on March 23 that a poll was going to be conducted on March 24; and that the Union was given the opportunity to object to and/or participate in the polling, but union officials deferred. In my opinion, the involved poll was unlawful because it was not conducted in accordance with the requirements of Struksnes, supra, and Texas Petrochemical, supra. The poll was conducted after the bankruptcy judge approved the selling of GML and before the Bill of Sale was signed. Lumbrezer testi- fied that every contract that customers and vendors had with GML was voided because ICE Industries did not want to be bound by anything. On March 4, 2004, GMAC signed an agreement with the Union specifying that “[t]he company will negotiate a contract with current union representative after the completion of the Purchase Agreement.” But once the bank- ruptcy judge approved the selling of GML, GMAC wanted to void any obligation to the Union before finalizing the purchase. Although having to deal with the Union was not cited by Re- spondents’ witnesses as a deal breaker, Lumbrezer testified that ICE Industries could have walked away from the deal at any time before it was finalized. Respondents wanted to have all the ducks in a row and take care of all the ducks before the deal was finalized. And as demonstrated by the way they conducted the poll, Respondent’s wanted to make sure of its outcome. Judge Herbert Silberman, in Montgomery Ward & Co., 210 NLRB 717, 724–725 (1974), pointed out as follows: From the early days of the Act the Board has looked with disfavor upon employer sponsored elections. [Foot- note omitted.] A poll of employees by their employer as to whether they wish to be represented by a labor organiza- tion is an intrusion upon the employees’ statutory right to select a collective bargaining representative without em- ployer interference. . . . . As a poll is presumed to be violative of the Act, the burden is upon the employer to establish that it has ob- served all of the required safeguards and falls within the exception approved in Struksnes. [Citations omitted.] [Emphasis added.] . . . . [a successor] asking employees to declare themselves in a poll with respect to their desires for continued union representa- tion at a time when they are applying for employment inher- ently restrains and coerces employees in the exercise of their rights under the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176 Judge Silberman’s opinion was adopted by the Board. In Texas Petrochemicals Corp., 296 NLRB 1057, 1061, 1064 (1989), which involved a successor and a union which had a collective-bargaining agreement with the predecessor and was recognized by the successor, the Board indicated as fol- lows: While we require, then, that employer polls be predi- cated on the same evidentiary basis as Board conducted RM elections, we do not go so far as to require that such polls be conducted with the same extensive procedural formalities as those that accompany Board elections.18 To impose such procedural requirements on in-house em- ployer polls would, in all likelihood, effectively do away with such polls—a result which we do not seek. While we favor reliance on a Board-conducted RM election rather than an employer’s own in-house poll, we nevertheless acknowledge an employer’s right to conduct such a poll on the basis of a reasonable doubt about an incumbent un- ion’s majority status. Although some procedural refine- ments must be foregone in the interest of effectively pre- serving an employer’s right to poll, we shall nevertheless require, at a minimum, that an employer provide the union with reasonable advance notice of the time and place of the poll, and that the poll itself be conducted in accordance with the procedural safeguards set forth in Struksnes Con- struction Co., supra19. . . . . Moreover, imposition of a procedurally stringent re- quirement that an employer provide a union with reason- able advance notice of such polls is consistent with our imposition . . . of the substantively more stringent ‘reason- able doubt’ standard for conducting such polls in the first place. [Emphasis added.] _________________ 18 The Board’s extensive procedures for the conduct of repre- sentation elections, including RM elections conducted under Sec. 9(c)(1)(B) are set forth in detail in the Board’s Casehandling Manual for Representation [P]roceedings (Part Two), [S]ecs. 11300–11350. In addition to the general oversight expertise pro- vided by the Board as a neutral party, some of the more signifi- cant other procedural safeguards of Board elections that are unlikely to be found in employer polls are voter eligibility lists; posted election notices; reasonable periods of time for discussion of issues and campaigning; election observers from all participat- ing parties; procedures to challenge voter eligibility; procedures to file exceptions to the election or to conduct affecting the results of the election. 19 We have accepted the general adequacy of the Struksnes procedural safeguards for employer-conducted polls of employees where the employer has reasonable doubt about the incumbent union’s majority status. [Citations omitted.] In Texas Petrochemical Corp., 923 F.2d 398, 403 (5th Cir. 1991), the court pointed out as follows: We find it significant that TPC [Texan Petrochemical Corporation] failed to notify the Union of the poll. NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981), clearly states that polling would be tolerated if there was objective evidence of loss of union support and “after giv- ing notice to the union.” Id. at 1145 [Footnote omitted.] As we previously stated, an employer may turn to avenues other than those sponsored by the Board but there must be some similarity with Board procedure. To allow otherwise would invite abuse. Struksnes . . . deals with employer polling before a certification election. In those situations, polling would occur when the union is in close contact with the employees and information is being disseminated earnestly. In a post-certification election, a union may not be in as close contact with its members. We do not seek to reward unions who are alien to their members, but are re- minded of the consequences of this poll; in a blitzkrieg ef- fort an employer could rid itself of a low profile, majority union. [Footnote omitted.] Advance notice is particularly important when a successor employer seeks to poll its em- ployees shortly after taking over the company and con- templates negotiating with the union. See Fall River, 482 U.S. 39, 40, 107 S. Ct. at 2233, 2234 (explaining employ- ees of successor employers may feel their jobs may de- pend upon non-union workplace). When the NLRB holds an election, be it certification or decertification, there is a period of time in which both the union and the employer are able to present their side of the issues; advance notice would provide similar benefits when the NLRB is not in- volved. In the instant case the situation was worse in that from a timing standpoint the Respondents were polling the employees not only at about the same time they would be seeking jobs from the successor if the purchase was finalized but at a time when ICE Industries could still walk away from the purchase, which inevitability would have lead to the closing of the facility and the loss of all of the jobs. The situation figuratively screamed out for caution, and Re- spondents, at best, threw caution to the wind. More accurately, Respondents thumbed their noses at a reasonable and lawful approach. There was no lawful reason for Melton to be in the polling area the entire time of the voting. And it would have been so easy for Respondents to have given the employees an unequivocal assurance against reprisal. The basic requirements regarding employer polling have been around for years. Yet on brief Respondents argue that the Board has failed to outline specific procedures for conducting an employer poll and that the Board should allow the employers reasonable license in interpreting the few safeguards the Board created in Struksnes, supra. Notwithstanding that the safeguards are few, Respon- dents still refused to comply with them. As indicated above, Judge Silberman pointed out in Mont- gomery Ward & Co., 210 NLRB 717, 724 (1974): As a poll [by an employer] is presumed to be violative of the Act, the burden is upon the employer to establish that it has observed all of the required safeguards and falls within the exception approved in Struksnes. [Citations omitted and em- phasis added.] Did Respondents meet their burden to show assurances against reprisal were given to employees? Respondents argue that the notice of the polling (GC Exh. 7) directly implied that employ- ees who wished to vote and employees who did not wish to GRENADA STAMPING AND ASSEMBLY, INC. 1177 vote were free to do so as well with the language “After all employees who wish to vote have [voted] . . . .” Of the four employees Respondents called to testify about the employer polling, Seals did not testify that he saw the notice before he went to vote, Clark testified that he was not sure that he read the notice before he voted, Kendall incredibly testified that the notice was posted for about 1 week before the voting when Respondents’ evidence shows that it was posted for the first time less than 24 hours before the voting began, and Walker did not specifically testify about the notice. So two of the em- ployees called by Respondents said nothing about the notice, one was not sure he read it before the voting, and one incredi- bly testified that it was posted for a week before the voting. General Counsel’s witness Collins testified that he saw the notice as he was leaving the building on March 23. But unlike the other employees, Collins was shown a copy of the notice at his meeting with Anderson and Melton, and Collins was told that the notice was going to be posted later that day. Collins had reason to look for the notice. Other employees had not been given a reason to look for the notice at the end of the day on March 23. Considering the fact that the notice was posted less than 24 hours before the voting began, Respondents have not shown with credible evidence that, other than Collins, any employee even saw the notice before the voting commenced. Again, with respect to compliance with the requirements, the burden is on the Respondents and not the General Counsel. Respondents argue that Johnson provided further assurances against reprisals to employees. As noted above, Johnson testi- fied that he told the employees that I was a local attorney and that I was overseeing the voting process to make sure that no one was harassed or intimidated. I also explained to them that I am not affili- ated with Grenada Manufacturing whatsoever and that I didn’t have an interest in the outcome of the results of the voting. [Tr. 65.] . . . . I was here to ensure that there were no harassments or intimidation. That any one—that no one was intimidated or harassed during the process to make sure that the vot- ing process ran smoothly and it was a fair process. [Tr. 74; emphasis added.] Moreover, Johnson testified that his statements to employees concerning his assurance that there would be no harassment or no coercion of the employees voting pertained only to the time that the employees were present and actually voting in the cafe- teria because he was only there for that particular day. Respon- dents have not shown with the testimony of Johnson that they complied with the requirement that assurances against reprisal were given. With respect to Kendall and Walker, neither one of these witnesses was credible.18 They figuratively put words in John- 18 At p. 8 of their brief, Respondents argue that Kendall and Walker “were on the union negotiating committee.” Kendall testified that he resigned from the Union 10 years ago. Walker testified that he was a member of the Union two different times and on the last round he was on negotiating committee. Walker was not asked if he was a member of the Union when he voted on March 24. son’s mouth that even he did not testify he said. As noted above, Kendall was the employee who testified that the notice of the voting was posted for about 1 week when the evidence demonstrates that it was posted less than 24 hours before the beginning of the voting. Walker’s affidavit to the Board does not support his testimony. Indeed according to Walker’s affida- vit, neither Melton nor Yancey was present in the cafeteria when he voted. That being the case one must wonder, with Walker’s version of events, who supposedly checked off his name on the employee roster (R. Exh. 39), and whether Walker was even present during the voting. Respondents have not shown with the noncredited testimony of Kendall and Walker that they complied with the requirement that assurances against reprisal were given. As noted above, on brief the General Counsel contends that the presence of Human Resources Manager Melton and agent Johnson in the voting area during the entire voting process created an inherently coercive atmosphere and did not allow for a secret-ballot vote of the employees to occur; that the Board has concluded that the presence of a high-ranking manager in the polling area is inherently coercive, Helnick Corp., 301 NLRB 128 (1991), and Eagle Comtronics, Inc., 263 NLRB 515 (1982); that Melton’s presence is the epitome of coercive; and that Johnson, an agent of Respondent during the poll, was in a position to see employees vote and to have interfered with the secrecy of the ballot. The General Counsel is correct. I see no need to expand on the General Counsel’s conclusions. Again, As a poll [by an employer] is presumed to be violative of the Act, the burden is upon the employer to establish that it has observed all of the required safeguards and falls within the exception approved in Struksnes. [Citations omitted and em- phasis added.] Respondents have not shown that they observed all of the re- quired safeguards of Struksnes, supra. As noted above, on brief Respondents argue that “the notice was reasonable under the circumstances because advance no- tice was provided [on March 23] soon after the company de- cided to poll the employees in mid-March” (R. Br. 13) (empha- sis added). This argument, at best, is disingenuous on its face. The Board, as set forth in Texas Petrochemicals Corp., 296 NLRB at 1061, concluded that “we shall . . . require, at a mini- mum, that an employer provide the union with reasonable ad- vance notice of the time and place of the poll, and that the poll itself be conducted in accordance with the procedural safe- guards set forth in Struksnes Construction Co., supra.” As con- cluded above, the poll was not conducted in accordance with the procedural safeguards set forth in Struksnes Construction Co., supra. Was reasonable advance notice given to the Union? Also as noted above, the court in Texas Petrochemical Corp., 923 F.2d 398, 403 (5th Cir. 1991), concluded that In a post-certification election, a union may not be in as close contact with its members. We do not seek to reward unions who are alien to their members, but are reminded of the con- sequences of this poll; in a blitzkrieg effort an employer could rid itself of a low profile, majority union. [Footnote omitted.] Advance notice is particularly important when a successor employer seeks to poll its employees shortly after taking over DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178 the company and contemplates negotiating with the union. See Fall River, 482 U.S. 39, 40, 107 S. Ct. at 2233, 2234 (ex- plaining employees of successor employers may feel their jobs may depend upon nonunion workplace). When the NLRB holds an election, be it certification or decertification, there is a period of time in which both the union and the em- ployer are able to present their side of the issues; advance no- tice would provide similar benefits when the NLRB is not in- volved. Did the circumstances involved here preclude giving reason- able advance notice? Did the circumstances dictate that Re- spondents notify the Union less than 24 hours before the poll began? Respondents notified Johnson about 1 week before the poll. Respondents also could have notified the Union about 1 week before the poll. Respondents chose not to. Why? Perhaps the reason can be gleaned from the fact that Anderson and Mel- ton on March 23, the day before the poll, intentionally tried to mislead Paige and Melton about the potential consequences of the poll while giving the Union its notification of the poll. Re- spondents resolved that it would not serve what they perceived to be in their best self interests to play fairly. Under the circum- stances existing here, Respondents did not provide the Union with reasonable advance notice of the poll.19 The poll was unlawful. Respondents violated the Act as alleged in paragraph 11 of the complaint. Paragraphs 12(a) and (b) of the complaint collectively allege that about March 24, 2005, the Union, by letter, requested that Respondent Grenada Stamping recognize it as the exclusive collective-bargaining representative of the unit and bargain collectively with the Union as the exclusive collective- bargaining representative of the unit, and since about March 30, 2005, Respondent Grenada Stamping has failed and refused to 19 As noted, on brief Respondents argue that that the Board has found advance notice of a poll one day prior to the poll to be permissi- ble, Boaz Carpet Yarns, 280 NLRB 40, 44 (1986), and Hutchinson- Hayes International, Inc., 264 NLRB 1300, 1308 (1982). Regarding the former citation, it should be noted that this case, which was decided by Chairman Dotson and Members Dennis and Johanson (concurring and dissenting in part), was decided in 1986, 3 years before the Board’s decision in Texas Petrochemical Corp., supra,; that there the poll was conducted to ascertain the truth of the employees’ own claim made by a decertification petition signed by 97 of the 130 to 140 employees in the unit; that the announcement of the poll assured employees there would be no reprisal regardless of the outcome of the poll; that the poll was conducted by secret ballot; and that the poll was conducted without infringing upon the employees’ Sec. 7 rights. That case is distinguish- able from the one at hand. Regarding the latter citation, it is noted that it too was decided before the Board’s decision in Texas Petrochemical Corp., supra; that Judge Jerrold Shapiro concluded, which conclusions were affirmed by the Board, that he could not find that the respondent therein entertained a reasonably based doubt of the union’s majority status when it conducted the poll and therefore the poll was unlawful; that he did not make findings regarding whether conduct involved in that proceeding created a coercive atmosphere and/or violated the se- crecy of the ballots; and that the respondent in that proceeding did not give notice to the union of its intention to poll the employees prior to conducting the poll as required in NLRB v. A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981). The latter case is not only distinguishable, it does not support Respondents’ argument. bargain with the Union as the exclusive collective-bargaining representative of the unit. Counsel for the General Counsel on brief contends that Gre- nada Stamping became a successor to GML about March 4, 2004; that a purchaser has the duty to continue the bargaining relationship established by its predecessor when there is sub- stantial continuity in the employing enterprise, Fall River Dye- ing Corp. v. NLRB, 482 U.S. 27, 42–46 (1987); NLRB v. Burns Security Services, 406 U.S. 272 (1972); Specialty Envelope Co., 321 NLRB 828 (1996), enfd. in relevant part 153 F.3d 289 (6th Cir. 1998); that the Board has held that a prospective pur- chaser who effectively controls the business operations while the sale is pending will have successor bargaining obligations even though the sale is not yet final and title to the assets has not passed to the purchaser, especially if there is a management agreement between the predecessor employer and the pur- chaser, Golden Cross Health Care of Fresno, 314 NLRB 1201 (1994); Sorrento Hotel, 266 NLRB 350 (1983); East Belden Corp., 239 NLRB 776, 791 (1978), enfd. mem 634 F.2d 635 (9th Cir. 1980); that in February 2004 Gary Houston was intro- duced to the involved employees as the new general manager; that Melton and Anderson were subordinate to Gary Houston and followed his directives; that it is undisputed that at the time that Grenada Stamping began the day-to-day management of GML’s business operations in early March 2004, there were no significant changes to the employing enterprise in that the work force, jobs, working conditions, supervisors, equipment, and production methods remained essentially unchanged; that the involved management agreement gave broad authority to Gre- nada Stamping to direct and control the business operations, make all purchases, collect revenues, control all assets, respond to customer complaints, and exercise oversight over the em- ployees, including the sole discretion to hire and fire employ- ees; that Grenada Stamping was also authorized to retain all net revenues from the business as compensation for its manage- ment services; that Howard Ice and Gary Houston communi- cated with GML’s customers and suppliers and worked to re- tain those relationships during the entire period that the sale of GML’s business assets to Grenada Stamping was pending; that Ice and Gary Houston also met with the Union on March 4, 2004, and negotiated a temporary agreement which explicitly provided that it was between the Union and GMAC and was signed by Gary Houston in his capacity as general manager; that Grenada Stamping, through Gary Houston, continued to recognize and negotiate with the Union throughout the rest of that year; that during the 13 months the Management Agree- ment was in effect, Grenada Stamping funded the business operations to a substantial degree and exercised full managerial control over all aspects of the business, including labor rela- tions matters; that Gary Houston and Lumbrezer were paid directly by ICE Industries and were never employed by GML or paid out of GML funds; that here, as in East Belden Corp., supra, the evidence demonstrates that during the 13 months that the management agreement was in effect, Grenada Stamping exercised full managerial control over GML’s business opera- tions and that Grenada Stamping operated the business for its own account, and not for the benefit of GML; that an em- ployer’s withdrawal of recognition based on a procedurally GRENADA STAMPING AND ASSEMBLY, INC. 1179 deficient poll is tainted and violates Section 8(a)(5) of the Act, Texas Petrochemicals Corp., 296 NLRB 1057, 1061 (1989); and that, therefore, Melton’s March 30 denial of the Union’s request to recognize and bargain with it, which denial cited the unlawful March 24 poll, violates Section 8(a)(1) and (5) of the Act. The Charging Party on brief contends that Sorrento Hotel, 266 NLRB 350 (1983), is easily comparable to this case, except that the Grenada debacle has many more items to chose from to prove successorship. Respondents on brief argue that following the rule estab- lished by NLRB v. Burns Security Services, 406 U.S. 272 (1972), GMAC became a successor on or about March 30 when GMAC took over GML’s payroll and hired all of GML’s for- mer employees after they submitted applications; that while the General Counsel insists that successorship attached to GMAC on March 4, 2004, when it applied to do business in Missis- sippi, this assertion is contrary to the established principles of successorship and relevant Board precedent which hold that successor status attaches when (a) an new employer conducts essentially the same business as its predecessor, and (b) a ma- jority of the workers employed in the new business had been employed by its predecessor; that the Management Agreement gave ICE Industries a chance to stop the loss of GML’s cus- tomers, turn around the business, and conduct due diligence; that GMAC provided approximately $2 million, most of which was unsecured, to keep GML afloat; that, nonetheless, “GML continued to function as a stand-alone business with the major- ity of its cash flow coming from its own sales and other sources of income, such as the sale of its products” (R. Br. 18)20; that all the business was conducted through GML; that GMAC was little more than a conduit for financing from ICE Industries to GML from March 4, 2004, to March 30, 2005; that GMAC did not hire GML’s former employees until after GMAC purchased GML’s assets on or about March 30, 2005; that during the in- terim period GMAC remained poised to walk away from the deal, and if it did, it would have taken the new business it had generated for GML; that in NYP Acquisition Corp., 332 NLRB 1041 (2000), which assertedly is strikingly similar to the instant case, the Board rejected the General Counsel’s argument that an acquisition company which managed a bankrupt newspaper with an eye towards eventually purchasing the paper became a successor on the date a management agreement was signed; and that [t]he Board affirmed the ALJ’s decision and, relying on Fre- mont Ford Sales, 148 NLRB 1299, 1301 (1964), held that 20 While Anderson’s testimony is cited in support of this conclusion, it is noted that Anderson testified that “[w]e needed the funds from ICE Industries in order to fund the total operations of Grenada Manufactur- ing, LLC. We could not have—we were not a going concern, and we could not have paid our bills without their funding.” (Tr. 373.) Ander- son also testified that [t]he account, the bank account, is one bank account. And you have funds from customers coming in. And you have funds from scrap metal coming in. And you have funds from ICE Industries coming in. And in that comingling of funds, I can’t tell you which money paid this bill and which money paid that bill. I don’t know. I certainly couldn’t ascertain that. [Tr. 374.] Acquisition Corp did not become a successor of the Post as of March 29 because there was (1) no written contract of sale of the company and (2) the managing company did not exercise effective control in its own name during a precisely defined management period which will be used to fulfill mere for- malities. [NYP Acquisition Corp., 332 NLRB at 1043.] Respondents further argue that while the Management Agree- ment in the instant case gave GMAC management control over GML, and contemplated the eventual purchase of GML, GMAC assumed no duty to purchase the assets of GML in February 2004, no sale occurred until March 2005, GMAC did not exercise control of GML in its own name but continued to manage GML as a going concern, and certain considerations, namely (1) the approval of the sale by the Bankruptcy court; (2) potential liability to PBGC; (3) potential liability regarding pre- existing environmental problems; (4) revaluing industrial equipment at market price; and (5) potential liability with re- spect to a claim for commissions for GML’s past and future sales had to be resolved before GMAC could purchase GML; and that because the above-described problems had to be re- solved before GMAC could purchase GML, successorship obligations cannot be imposed on GMAC prior to March 30, 2005. The Respondents rely heavily on the Board’s treatment of the Judge’s decision in NYP Acquisition Corp., supra at 1043. Indeed, as set forth above, Respondents argue that [t]he Board affirmed the ALJ’s decision and, relying on Fre- mont Ford Sales, 148 NLRB 1299, 1301 (1964), held that Acquisition Corp did not become a successor of the Post as of March 29 because there was (1) no written contract of sale of the company and (2) the managing company did not exercise effective control in its own name during a precisely defined management period which will be used to fulfill mere for- malities. [NYP Acquisition Corp., 332 NLRB at 1043.] The problem with Respondents’ position is that it is altogether wrong. Respondents cite page 1043 of the Board’s decision in NYP Acquisition Corp. There the majority of the three-member panel of the Board was merely summarizing the judge’s find- ings. Two pages further into the Board’s decision, specifically at footnote 14 on page 1045 in NYP Acquisition Corp., the majority of the three-member panel of the Board indicates as follows: 14 The judge found that Acquisition while managing the Post continued the Post’s operations with the same employee work force doing the same jobs under the same working conditions. Nevertheless, as indicated above, the judge concluded that Acqui- sition was not a successor employer to the Post under Fremont Ford, supra. We have substantial doubts as to the correctness of the judge’s finding and the judge’s discussion of Fremont Ford in light of the Board’s more recent decision in Specialty Envelope Co., supra [321 NLRB 828 (1996)], which issued shortly before the judge’s decision. However, we find it unnecessary to resolve this issue in view of our findings that Holdings was not an alter ego of Acquisition. In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 43 (1987), the Court indicated as follows: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180 In Burns [NLRB v. Burns Security Services, 406 U.S. 272 (1972)], we approved the approach taken by the Board and accepted by courts with respect to determining whether a new company was indeed the successor to the old. . . . . Under this approach, the Board examines a number of factors: whether the business of both employers is essentially the same; whether the employees of the new company are doing the same job in the same working con- ditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. . . . In conducting the analysis, the Board keeps in mind the question whether “those employees who have been re- tained will understandably view their job situations as es- sentially unaltered.” [Citations omitted.] In the instant case, upon assuming control of GML, GMAC continued doing the same job in the same working conditions, having the same production process, and produced the same products for the same customers as had GML. While between March 4, 2004, and March 30, 2005, GML still owned the Company, this is not dispositive of whether GMAC was a suc- cessor during this period. As pointed out in Maintenance, Inc., 148 NLRB 1299, 1301 (1964), “[t]he critical question . . . [is] whether Respondent continued essentially the same operation with substantially the same employee unit whose duly certified bargaining represen- tative was entitled to statutory recognition at the time Respon- dent took over.” There the Board found successorship even though the new company had not acquired any of the assets or other interests of the predecessor. In East Belden Corp., 239 NLRB 776 (1978), the Board found successorship where there had not been a transfer of ownership since the respondent there operated the involved restaurant for its own account and the owner had virtually noth- ing to do with the operation of the restaurant after the respon- dent took over its operation. In Specialty Envelope Co., 321 NLRB 828 (1996), enfd. in relevant part 153 F.3d 289 (6th Cir. 1998), the Board found that a receiver appointed by a state court to manage a failing com- pany’s day-to-day operations was an employer and a legal suc- cessor to the company whose operations he was running. Where, as here, there is a Management Agreement under which GMAC took control of the Company, GMAC was func- tioning as the Employer of GML’s employees notwithstanding the fact that GMAC did not finalize the sale until March 30. While ICE Industries could have walked away from the pur- chase right up until the time it was finalized, once it took con- trol of the Company (and from the standpoint of employees, there is substantial continuity between the predecessor em- ployer and the successor) it had to abide by the provisions of Section 8(a)(5) of the Act. When GMAC took control of the Company pursuant to the Management Agreement, received authority on or about March 4, 2004, to do business in Missis- sippi, and retained the Company’s employees without substan- tial change in the unit or the operation, it became legally obli- gated to recognize and bargain with the Union. Grenada Stamp- ing violated the Act as alleged in paragraph 12 of the com- plaint.21 Paragraphs 13(a), (b), and (c) collectively allege that on or about March 24, 2005, the Union, by letter, requested that Re- spondent Grenada Stamping furnish the Union with (1) a listing of all bargaining unit employees presently employed by GMAC, including the names, addresses, dates of hire, and job titles held by each employee; (2) a detailed description of the terms and conditions of employment, including wages and benefits, presently provided by GMAC to the hourly employ- ees of the Grenada plant; and (3) a description of any plan that GMAC presently has to hire additional employees at the Gre- nada plant; that the information requested by the Union is nec- essary for, and relevant to, the Union’s performance of its du- ties as the collective-bargaining representative of the unit; and that since about March 30, 2005, Respondent Grenada Stamp- ing has failed and refused to furnish the Union with the infor- mation requested. Counsel for the General Counsel on brief contends that the information requested in Hardman’s March 24 letter pertains to the bargaining unit of Grenada Stamping, and, therefore, is presumptively relevant; that Grenada Stamping admittedly has not provided the requested information to the Union; and that its failure to do so violates Section 8(a)(5) of the Act, Broad- way Volkswagen, 342 NLRB 1244, 1248 (2004). Respondents on brief argue that the results of the poll and other objective evidence clearly show that the Union was not in fact supported by the majority of its employees at the time the employer refused to recognize the Union and recognition of the Union was lawfully withdrawn. Since Respondents have not shown that the incumbent Union has, in fact, lost majority support, Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), Grenada Stamping is obligated to provide the Union, on request, information relevant to the Union’s duty as representative of the employees. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). Grenada Stamping does not contest the relevance of the information sought. Rather, Grenada Stamping argues that it does not have a duty to provide the information because it lawfully withdrew recognition. As found above, the poll was unlawful. The infor- mation requested by the Union is presumptively relevant be- cause it directly pertains to terms and conditions of employ- ment of the employees represented by the Union. Crowley Ma- rine Services, 329 NLRB 1054, 1060 (1999), enfd. 234 F.3d 1295 (D.C. Cir. 2000). Grenada Stamping violated the Act as alleged in paragraph 13 of the complaint. Paragraphs 14(a) through (i) of the complaint collectively al- lege that about April 2005 Respondent Grenada Stamping took the following actions regarding its unit employees: (a) changed the health benefits by increasing the costs of certain prescrip- tion copayments, changing health insurance providers, and 21 In the alternative, the General Counsel contends that if Grenada Stamping is found to be a successor as of March 30, it is still liable since the Union filed the charge in Case 26–CA–22031 on March 24 and, therefore, Respondents were aware of the alleged unfair labor practice on March 30 when the sale was finalized and Grenada Stamp- ing refused to recognize the Union. GRENADA STAMPING AND ASSEMBLY, INC. 1181 providing dental coverage; (b) implemented a 401(k) plan; (c) implemented a retirement incentive plan; (d) removed the Un- ion’s bulletin board from Respondents’ facility; (e) changed the vacation year from a fiscal year beginning June 1 of each year to a calendar year; (f) changed employee vacation pay rates; and (g) continued to maintain an open door policy but no longer recognized the grievance procedure; that the actions of Grenada Stamping described above in this paragraph relate to wages, hours, and other terms and conditions of employment and are mandatory subjects for the purpose of collective bar- gaining; and that Respondent Grenada Stamping engaged in the conduct described above in this paragraph without prior notice to the Union and without affording the Union an opportunity to bargain with Respondent with respect to this conduct and the effects of this conduct. Counsel for the General Counsel on brief contends that as Grenada Stamping first became successor to GML in March 2004, Grenada Stamping was obligated to notify the Union of these proposed changes and to give the Union the opportunity to bargain before implementing such mandatory subjects of bargaining, NLRB v. Katz, 369 U.S. 736 (1962), and St. An- thony Hospital Systems, 319 NLRB 46 (1995); that Grenada Stamping admits that it unilaterally made the changes but relies on its defense that it lawfully withdrew recognition from the Union based on the results of the March 24 poll; that since this poll was unlawfully conducted, Grenada Stamping’s refusal to recognize the Union based on the results of a procedurally defi- cient poll is violative of Section 8(a)(5) of the Act; and that even if Grenada Stamping is found to be a successor on March 30, 2005, the unilateral changes were made too late after the employees were hired to constitute part of its initial terms and conditions of employment, Banknote Corp. of America, 315 NLRB 1041 (1994). Respondents on brief concede that Grenada Stamping f/k/a/ GMAC had a duty to bargain with the Union after it purchased the assets of GML, provided the Union represented a majority of the employees in the bargaining unit. Respondents argue that after GMAC formally purchased the assets of GML pursuant to the bankruptcy court order, it lawfully instituted its own initial terms and conditions of employment, Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 43 (1987); that prior to the transfer of ownership of the facility, GMAC notified the Union and its employees that all GML employees would have to reapply for a position with GMAC and that GMAC would make changes to the terms and conditions of their employment; that immediately after the plant changed hands, Gary Houston and members of management met with the employees and announce the new terms and conditions of employment; that GMAC never misled the employees or the Union about whether they would be re- tained without any change in their working conditions; that under Spruce Up Corp., 209 NLRB 194 (1974), enfd. 529 F.2d 516 (4th Cir. 1975), an employer may set initial terms (1) if is has not, by tacit inference misled the employees into believing that prior working conditions will remain unchanged, or (2) if it has affirmatively announced its intentions to retain the employ- ees under new employment conditions before or immediately after commencing operations; and that, according to established precedent, Grenada Stamping f/k/a GMAC clearly had the right to set the initial terms of employment. The United States Supreme Court in NLRB v. Burns Security Services, 406 U.S. 272, 294 (1972), held that: Although a successor employer is ordinarily free to set the initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the em- ployees in the unit and in which it will be appropriate to have him initially consult with the employees bargaining representative before he fixes terms. In Spruce Up Corp., supra at 195, the Board held that: Burns . . . should be restricted to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages, hours or conditions of employment, [footnote omitted] or at least to circumstances where the new employer . . . has failed to clearly announce its intent to estab- lish a new set of conditions prior to inviting former employees to accept employment. In the instant case, GMAC was a “perfectly clear” successor to GML. When GMAC took control of the Company on or about March 4, 2004, it retained all of GML’s employees with- out change in their terms and conditions of employment, except to the extent the Union agreed in writing (GC Exh. 3) that the Company did not have to recognize (a) the work rules, seniority or classifications because of the team concept of ICE Indus- tries, and (b) the pension plan as it existed at the time. GMAC has failed to show that it clearly announced an intent to change the terms and conditions of employment before it was perfectly clear that GMAC intended to employ all of the predecessor’s employees.22 GMAC was obligated to bargain with the Union before changing employment terms. GMAC memorialized this realization in General Counsel’s Exhibit 4 where, after it at- tempted to unilaterally negate the incentive program—which was a matter covered in the collective-bargaining agreement which was in effect at the time, GMAC entered into a written agreement with the Union to increase base pay rates and shift premiums thereby replacing the incentive program. GMAC could not unilaterally change the terms and conditions of em- ployment without first bargaining with the Union. Grenada Stamping violated the Act as alleged in paragraph 14 of the complaint.23 Paragraph 15 of the complaint alleges that on two occasions on about April 21, 2005, Respondent Grenada Stamping, by Human Resources Manager Chet Melton at Respondent Gre- nada Stamping’s facility, told an employee that they could not discuss the Union at work. 22 The burden is on Respondents to make this showing. The burden is not on the General Counsel. 23 The General Counsel is correct in the contention that even if Gre- nada Stamping is found to be a successor on March 30, 2005, the uni- lateral changes, with perhaps the exception of changing the vacation year from a fiscal year to a calendar year, were made too late after the employees were hired to constitute part of its initial terms and condi- tions of employment, Banknote Corp. of America, supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182 Counsel for the General Counsel on brief contends that Mel- ton’s and Anderson’s instructions to union officers Collins and Paige on April 21 not to discuss the Union were in violation of the Act, Frazier Industrial Co., 328 NLRB 717 (1999), enfd. 213 F.3d 750 (D.C. Cir. 2000); that no testimony of anyone who allegedly complained about Collins was placed on the record; that by suppressing only union talk during working time, the discriminatory character of the employer’s rule was obvious, Emergency One, Inc., 306 NLRB 800 (1992); that while an employer can prohibit employees from talking about all subjects not related to work, where employees are forbidden to discuss union topics while they can discuss subjects not re- lated to work, the employer violates the Act, Orval Kent Food Co., 278 NLRB 402, 407 (1986); Olympic Medical Corp., 236 NLRB 1117, 1122 (1978), enfd. 608 F.2d 762 (9th Cir. 1979); Larid Printing, Inc., 264 NLRB 369, 374, 376 (1982); and Williamette Industries, 306 NLRB 1010, 1017 (1992); that neither Paige nor Collins were told that any topic but the Union was considered off limits; that no other topics have been pro- hibited in the past; and that such a disparate prohibition is a clear violation of Section 8(a)(1) of the Act. Respondents on brief argue that GML and later GSA had a longstanding no-solicitation rule in place at the facility (R. Exh. 45); that both Paige and Collins were aware of this rule; that rules restricting solicitation activity during working time are permitted because of the Employer’s right to prevent interfer- ence with the employees’ work; that no adverse action was taken against Paige; that it has not been shown that the no- solicitation rule was applied in a disparate fashion based on Paige’s union affiliation; that in Washington Fruit & Produce Co., 343 NLRB 1215, 1219–1220 (2004), the Board held that (a) an employer lawfully disciplined several of its union mem- bers under a facially valid no-solicitation rule after receiving numerous complaints from other employees that they were being harassed with talk about union business during working hours; and (b) the employer was only seeking to prevent the solicitation and harassment of other employees—a goal which is fully protected under the law regarding the enforcement of a no-solicitation rule; and that there is no basis to find Grenada Stamping liable for unlawful discrimination under Section 8(a)(3) or disparate enforcement of the no-solicitation rule under Section 8(a)(1) of the Act. Not only did none of the alleged employee complainants tes- tify to support Melton’s allegation about harassment on the part of Paige, but two of them, Bland and Bullins, did not even tes- tify to deny what was in Melton’s e-mail (R. Exh. 43).24 There it is indicated that Paige (a) would not talk with Bland, and (b) only responded to Bullins, stating the obvious, namely that changing the vacation year from a fiscal to a calendar year was meaningless. The conduct of Paige described in Respondent’s Exhibit 43, which is not denied by Bland or Bullins, is by no 24 I would not and do not rely on the uncorroborated testimony of Melton who incredibly testified that the idea of taking a poll came up just a very few days before the poll. Johnson was recruited about 1 week before the poll. Melton was trying to justify giving the Union less than 24 hours notice when the Respondents gave Johnson about 7 days notice. stretch of the imagination a violation of GML’s no-solicitation policy or rule. Add to this the fact that Respondents do not even allege that there were any complaints about the president of the Union yet Collins was also told on April 21 not to discuss the Union. As far as Respondents were concerned, they buried the Union and they did not want any negative comments about what the Respondents had done or were doing. How dare someone point out to an unwitting employee, in response to his statement, that his enthusiasm was misplaced and he did not fully appreciate that the change he cited was meaningless. (In- deed it was only later that the full negative impact of the change with respect to vacation pay was realized by employ- ees.) Respondents had no lawful justification for their April 2 and 21 conversations with Paige and their April 21 conversa- tion with Collins. Respondents were in effect promulgating a new rule on April 2 and 21, namely that Paige and Collins were not to say anything about the Union or employee matters dur- ing working time.25 The new rule had nothing to do with solici- tation. The new rule was an attempt to intimidate Paige and Collins. Respondents conduct was coercive. It interfered with, restrained, and coerced Paige and Collins in the exercise of rights guaranteed them in Section 7 of the Act.26 Respondents violated Section 8(a)(1) of the Act as alleged in paragraphs 15 and 16 of the complaint.27 CONCLUSIONS OF LAW 1. At all material times, each of Respondent Grenada Manu- facturing, LLC and Respondent Grenada Stamping and Assem- bly, Inc. has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondents constitute a unit appropriate for purposes of collective bargaining within the meaning of the Section 9(b) of the Act: All production and maintenance employees employed by Re- spondents at Respondents’ Grenada, Mississippi facility, but excluding sales, purchasing, personnel department, office clerical and professional employees, guards and supervisors as defined in the Act. 4. Since about September 1999 until about March 3, 2004, based on Section 9(a) of the Act, the Union had been the desig- nated exclusive collective-bargaining representative of the unit employed by Respondent Grenada Manufacturing, LLC. 25 At p. 323 of the transcript, Melton indicated that it referred to “all matters related [to] employees or whatever should be referred to me [and not be discussed by Paige or Collins with the employee].” 26 For the reasons specified by the General Counsel on brief, as set forth above, this new rule is unlawful in that it forbids discussion of union topics while the employees could discuss subjects not related to work. See cases cited by the General Counsel, as set forth above. 27 The case cited by Respondents, Washington Fruit & Produce, su- pra, is distinguishable in that there, unlike here (1) the complaining employees testified at the trial therein; (2) the union advocates admitted that they solicited support for the union during working time; and (3) the Board concluded that the personal discussions in that proceeding rose to the level solicitation or promotion within the meaning of the admitted facially valid no-solicitation rule in that proceeding. GRENADA STAMPING AND ASSEMBLY, INC. 1183 5. At all times since about March 4, 2004, based on Section 9(a) of the Act, the Union had been the designated exclusive collective-bargaining representative of the unit employed by Respondent Grenada Stamping and Assembly, Inc. 6. By engaging in the following conduct, Respondents com- mitted unfair labor practices contrary to the provisions of Sec- tion 8(a)(1) of the Act: (a) On March 24, 2005, Respondents, by Attorney Tarik Johnson, at Respondents’ facility, interrogated Respondents’ employees about their union sympathies by conducting a poll. (b) On two occasions on about April 21, 2005, Respondent Grenada Stamping and Assembly, Inc., by Human Resources Manager Chet Melton at Respondent Grenada Stamping’s facil- ity, told an employee that they could not discuss the Union at work. 7. By engaging in the following conduct, Respondents com- mitted unfair labor practices contrary to the provisions of Sec- tion 8(a)(1) and (5) of the Act: (a) On March 24, 2005, Respondents, by Attorney Tarik Johnson, at Respondents’ facility, interrogated Respondents’ employees about their union sympathies by conducting a poll. (b) Since about March 30, 2005, Respondent Grenada Stamping, notwithstanding the Union’s March 24, 2005 re- quest, has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. (c) Since about March 30, 2005, Respondent Grenada Stamping and Assembly, Inc. has failed and refused to furnish the Union with the necessary and relevant information the Un- ion requested on March 24, 2005. (d) About April 2005, Respondent Grenada Stamping and Assembly, Inc. took the following actions regarding the terms and conditions of employment of its unit employees, without prior notice to the Union and without affording the Union an opportunity to bargain with Respondent with respect to this conduct and the effects of this conduct: (a) changed the health benefits by increasing the costs of certain prescription copay- ments, changing health insurance providers, and providing dental coverage; (b) implemented a 401(k) plan; (c) imple- mented a retirement incentive plan; (d) removed the Union’s bulletin board from Respondents’ facility; (e) changed the va- cation year from a fiscal year beginning June 1 of each year to a calendar year; (f) changed employee vacation pay rates; and (g) continued to maintain an open door policy but no longer recognized the grievance procedure. 8. The unfair labor practices described above affect com- merce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that Respondents must be ordered to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent Grenada Stamping and As- sembly, Inc. unlawfully made changes in violation of Section 8(a)(1) and (5) of the Act, I recommend that Grenada Stamping and Assembly, Inc., at the request of the Union, restore the terms and conditions of employment which were in effect, and applicable to employees in the bargaining unit, before Respon- dent Grenada Stamping and Assembly, Inc. unilaterally changed those terms and conditions beginning in April 2005, and make whole all unit employees for losses suffered as a result of the changes, as calculated in accordance with Ogle Protection Service, 138 NLRB 682, 683 (1970), with interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Having found that Respondent Grenada Stamping and As- sembly, Inc. unlawfully withdrew recognition from the Union, it shall be recommended that Respondent Grenada Stamping and Assembly, Inc. recognize and bargain collectively with the Union upon request, and embody any understanding reached into a signed agreement. [Recommended Order omitted from publication.]