Choctawhatchee Electric Cooperative, Inc.

CHOCTAWHATCHEE ELECTRIC Choctawhatchee Electric Cooperative, Inc. and International Brotherhood of Electrical Work- ers, Local Union No. 2152 , AFL-CIO-CLC. Case 15-CA-9056 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 December 1983 Administrative Law Judge Lawrence W. Cullen issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief and a brief in support of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. We agree with the judge's finding that the Re- spondent's supervisor Jimmie Foreman unlawfully encouraged the circulation of a petition among its employees to decertify the Union by unlawfully in- terrogating and threatening employee Hobbs and promising raises to employees Hobbs and Jackson. We also agree with his finding that the Respondent unlawfully refused to bargain with the Union on the basis of a decertification petition because the petition was tainted by the Respondent's unfair labor practices.2 We do not agree, however, with i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 In finding that the decertification petition was tainted, Member Dennis notes that the Respondent 's unfair labor practices are clearly the kind that would tend to dissipate support for the Union , that the unit contains only 20 employees , and that the unfair labor practices involved repeated incidents As a result , she would require the Respondent to show that the unfair labor practices were isolated incidents not related to the Union's loss of support She finds that the Respondent has not sus- tained that burden Although the 14 petition signers testified that no member of management ever spoke to them about the petition and that they were in no way coerced or influenced by the Respondent , there is no showing that they were unaware of the Respondent 's coercive con- duct involving employees Jackson and Hobbs Member Hunter agrees with the judge , for the reasons fully set forth by him, that the Respondent 's unfair labor practices were sufficient to taint the decertification petition and therefore the Respondent could not rely on the petition to withdraw recognition from the Union He further notes, in response to the dissent , that the fact that 14 employees testified they were not coerced or influenced by the Respondent does not estab- lish that they were unaware of the Respondent's misconduct which, in Member Hunter's view , is an entirely separate matter Thus , the judge's inference of employee awareness of the unfair labor practices has not been rebutted by any probative evidence Moreover, in the absence of evidence to the contrary , Member Hunter presumes dissemination of 8(a)(1) threats Finally, we note that the proper test for 8(a)(l) conduct is whether it tended to coerce employees in the exercise of their Sec 7 rights, not 595 his finding that the Respondent engaged in unlaw- ful surveillance of employees Jackson, Hobbs, and Adams. Between 8:20 and 8:30 a.m. on Friday in early July 1983, employees Adams, Jackson, and Hobbs and others were seated at a table in the break or assembly room. Supervisor Foreman was sitting across the table. Employee Dorriety came into the room and asked if anyone wanted to sign a petition stating that the employees no longer wanted the Union to represent them before the petition was sent to the NLRB. Dorriety then specifically asked Adams, Jackson, and Hobbs, all of whom declined. Dorriety and Foreman then left the room. The judge found Foreman's presence in the room at that time was no mere happenstance, in view of Foreman's prior commission of several unfair labor practices involving attempts to get employees to sign the petition, and that his presence constituted unlawful surveillance of Adams, Jackson, and Hobbs in violation of Section 8(a)(1). The record is clear that supervisors frequently use the breakroom in the morning to give out work assignments . In fact, Adams and Jackson both testi- fied that on the morning of the alleged surveillance Foreman had work assignments to give out. Thus, we conclude that the record does not support a finding that Foreman was in the room for the pur- pose of surveillance or that he engaged in surveil- lance in violation of Section 8(a)(1) of the Act. Al- though we are dismissing this allegation, we agree with the judge that the unfair labor practices were not isolated incidents and were sufficient to taint the petition. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Choctawhatchee Electric Cooperative, Inc., DeFuniak Springs, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Interrogating its employees, promising them raises, or threatening them with retaliation in order to solicit their support for a petition to decertify the Union or to attempt to persuade them to aban- don their support for the Union." 2. Substitute the attached notice for that of the administrative law judge. whether it actually coerced employees See Amason, Inc, 269 NLRB 750 fn 2 (1984) Thus here, in the context of the Respondent's 8(a)(1) con- duct in support of the decertification petition, we conclude that the Re- spondent's withdrawal of recognition violated Sec 8(a)(5) and (1) 274 NLRB No. 84 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHAIRMAN DOTSON, dissenting in part. I would find that the Respondent did not violate Section 8(a)(5) of the Act by refusing to bargain with the Union on the basis of a decertification pe- tition. There were 20 employees in the unit and 14 of them signed the petition to decertify the Union during late June and early July 1983. All 14 testi- fied that no member of management spoke to them about the petition and that they signed the petition without influence or coercion from the Respond- ent. Because of the relatively small size of the unit and because the unfair labor practices were not iso- lated incidents, the judge inferred, despite the testi- mony of the 14 employees, that the employees who signed the petition were aware of the Respondent's unlawful conduct. The judge concluded the the pe- tition was tainted by the unfair labor practices and could not serve as the basis for a good-faith doubt of the Union's majority status. Thus, he found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union. I do not agree. The judge correctly stated that, in order to es- tablish a good-faith doubt, an employer must show that the doubt is based on objective considerations and is asserted in a context free of unfair labor practices. I find, however, that the testimony of all 14 employees who •signed the petition that they were in no way coerced or influenced by the Re- spondent-testimony that the judge noted was "un- rebutted" and that he did not discredit-affirma- tively and directly establishes that the petition was untainted by the unfair labor practices. Particularly important is the lack of any direct evidence that any unit employees, other than the two who were personally involved, had any knowledge of the un- lawful conduct. I would not infer employee knowl- edge from the size of the unit nor would I, in view of the 14 employees' unrebutted testimony, infer from the totality of circumstances that the employ- ees who signed the petition were aware of Fore- man's unlawful activity. Accordingly, I find that the record evidence compels the conclusion that the Respondent was entitled to rely on the petition signed by a majority of the unit employees as the basis for a good-faith doubt of the Union's continu- ing majority status. I would find that, in the cir- cumstances of this case, the Respondent did not violate Section 8(a)(5) and (1) by refusing to bar- gain with the Union. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER TO THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain in good faith with International Brotherhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees in- cluding linemen , apprentice linemen, service- men, equipment operators , groundmen , custo- dians, service representatives , shop mechanics, warehousemen, systems operation clerk, engi- neering aide, and storekeeper employed by the Employer at its DeFuniak Springs , Freeport and Baker, Florida, facilities ; including all office clerical employees , sales employees, all other employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT interrogate or issue promises of benefits or threats of reprisal to our employees in order to solicit their support for a petition to de- certify the Union as the collective -bargaining rep- resentative of the employees or to abandon their support for the Union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with International Brotherhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC as the ex- clusive representative of all employees in the ap- propriate unit described above with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. CHOCTAWHATCHEE ELECTRIC Our employees have the right to join and sup- port International Brotherhood of Electrical Work- ers, Local Union No. 2152, AFL-CIO-CLC or to refrain from doing so. CHOCTAWHATCHEE ELECTRIC COOPERA- TIVE, INC. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on October 5, 1983, at DeFuniak Springs, Florida. The hearing was held pursu- ant to a complaint issued by the Regional Director for Region 15 of the National Labor Relations Board (the Board) on August 25, 1983 The complaint is based on an amended charge filed by the International Brotherhood of Electrical Workers, Local Union No. 2152, AFL- CIO-CLC (the Charging Party or the Union) on August 5, 1983 The complaint alleges that Choctawhatchee Electric Cooperative, Inc (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) during the first week of July 19831 by approving, en- couraging, and participating in the circulation among its employees of a petition seeking the decertification of the Union and that Respondent also violated Section 8(a)(5) and (1) of the Act by since about July 11, 1983, refusing and continuing to refuse to meet and bargain collectively with the Union as the exclusive collective -bargaining representative of the employees . The complaint is joined by Respondent's answer filed September 9, 1983, where- in it denies the commission of the alleged unfair labor practices. On the entire record in this proceeding, including my observations of the witnesses who testified herein, and after due consideration of the positions of the parties and the briefs filed by the General Counsel and counsel for Respondent, I make the following FINDINGS OF FACT AND ANALYSIS I JURISDICTION A. The Business of Respondent The complaint alleges, Respondent admits, and I find that Respondent was, and has been at all material times herein, a Florida corporation with facilities located in DeFuniak Springs, Freeport, and Baker, Florida, where it engages in the transmission of electricity, and that during the past 12 months, a representative period, Re- spondent , in the course and conduct of its business oper- ations, derived gross revenues in excess of $250,000 and purchased and received goods valued in excess of $50,000 directly from points located outside the State of Florida and that Respondent is, and has been at all times material herein, an employer within the meaning of Sec- tion 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' All dates are in 1983 unless otherwise stated 597 B The Labor Organization The complaint alleges, Respondent admits in its answer, and I find that the Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act The complaint also alleges , Respondent admits in its answer, and I find that the following employees of Re- spondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees includ- ing linemen , apprentice linemen, servicemen , equip- ment operators, groundmen, custodians, service rep- resentatives, shop mechanics, warehousemen, sys- tems operation clerk , engineering aide, and store- keeper employed by the Employer at its DeFuniak Springs, Freeport and Baker , Florida facilities; ex- cluding all office clerical employees , sales employ- ees, all other employees , professional employees, guards, and supervisors as defined in the Act. The complaint further alleges, Respondent admits in its answer, and I find that about July 26, 1979, in Case 15-RC-6468, a majority of Respondent's employees in the aforestated appropriate unit, by secret -ballot election conducted under the supervision of Regional Director for Region 15 designated and selected the Union as their collective-bargaining representative , and that on Septem- ber 18 , 1979, the Union was certified as the collective- bargaining representative of the aforesaid unit and that Respondent has recognized the Union as such in a col- lective-bargaining agreement which was effective by its terms from July 1, 1980, to June 30, 1983. II. THE ALLEGED UNFAIR LABOR PRACTICES This case involves the circulation of a decertification petition by members of the bargaining unit and allega- tions that a supervisor , by reason of interrogation, sur- veillance, promise of benefits , and threats to unit employ- ees encouraged, participated, and attempted to coerce the employees to induce them to sign the decertification petition in violation of Section 8(a)(1) of the Act and that Respondent's refusal to bargain on the basis of its as- sertion of a good-faith doubt of the Union's majority was violative of Section 8(a)(5) and (1) of the Act as the de- certification petition was tainted by the supervisor's ac- tions and the signatures thereon were not obtained in a context free of unfair labor practices Respondent con- tends that no violations of Section 8(a)(1) were commit- ted by it, and that assuming, arguendo, violations of Sec- tion 8(a)(1) were committed , these did not taint the peti- tion because the employees who signed the petition did so voluntarily and without supervisory interference, promises, or coercion and that Respondent thus had the right to rely on the petition in asserting a good-faith doubt of majority status The General Counsel presented as witnesses in support of its case Noble R. Dean, LaRau Jackson, Samuel Hobbs, and David Adams. Dean is the president of the Union (Local 2152). Dean identified the collective-bar- 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreement (G C. Exh 2) and a copy of a letter dated July 11, 1983, from Respondent's attorney to the International Union with a copy to Dean (G.C. Exh 3) wherein Respondent notified the Union that it was de- clining to bargain with the Union concerning the unit on the ground that Respondent had received a petition "signed individually by well over a majority of the em- ployees in the unit, which states to the effect that they no longer want to be represented by Local 2152 for bar- gaining purposes." Dean testified that the Union had been and remains willing to continue to represent the employees in the unit and bargain with Respondent on their behalf. Dean testified on cross-examination that a bargaining session had been scheduled by the parties' representatives for July 122 or 13. Although Dean had requested on June 20 that the existing labor agreement be extended, Respondent did not agree to do so and the contract expired by its terms on June 30. The testimony of Dean is undisputed and I credit it LaRau Jackson testified as follows: He has been em- ployed by Respondent since 1972 and is a first-class line- man. During the last week of June, service representative Tommie McBroom brought a petition to him in the yard in front of the warehouse which said something about getting rid of the Union and asked him to sign it. Jack- son glanced at the petition which had a few names on it and declined to sign it Subsequently, in the middle of the same week Jackson and Samuel Hobbs, a ground- man, were approached concerning the petition by Robert Dorriety,3 a mechanic, as they were walking to their ve- hicles about 5 p.m. At that time, Jimmie Foreman,4 su- pervisor of construction and operations, who is Jackson's supervisor, was backing a vehicle out of the warehouse and called Jackson and Hobbs over to his truck and asked them to help him out by getting rid of the Union and that they could get a raise if they did so. Jackson placed this conversation as occurring on a Friday Jack- son testified further that he was again contacted by Dor- riety during the following week after the employees re- turned from the Fourth of July holiday At this time Jackson and Dorriety were inside the warehouse in front of the employees' assembly room about 4 to 4:30 p.m. and Dorriety brought the petition to Jackson again Foreman was present at this time and pulled out his wallet and asked Jackson if he needed more money and told him that it would mean more money if the employ- ees got rid of the Union. Subsequently, on a Friday morning (the week after the Fourth of July) about 8:15 to 8.30 a.m., Jackson, Hobbs, and David Adams, a winch truck operator (who was also a member of the bargain- ing unit), were in the assembly (breakroom) room and were approached by Dorriety to sign the petition, and Foreman then "got up and left " On cross-examination, Jackson testified he recalled that the petition was "as far as I can remember, typed." Jackson also then related the z Respondent's general manager Smith placed the date as July 12 Jackson, McBroom, Hobbs, and Dorriety were all members of the bargaining unit 4 The complaint alleges, Respondent admits, and I find that at all times material herein Foreman has been a supervisor of Respondent within the meaning of Sec 2(11) of the Act and an agent of Respondent within the meaning of Sec 2(13) of the Act initial statement of Foreman on the occasion when Fore- man,was backing his truck out in the yard as a request that Hobbs and Jackson help Dorriety out by signing the petition but he could recall nothing further about this conversation On cross-examination Jackson related an- other incident when McBroom came out to the jobsite during the workweek of July 5-8 when the employees were stringing wire and at which time Foreman, who was also present, approached Hobbs and Jackson and said that McBroom was there and "you can sign that pe- tition now." Jackson and Hobbs declined to sign the peti- tion. Jackson was asked on cross-examination whether he had ever been disciplined by Foreman; he replied that he had received a written warning in early 1983 for a safety violation and that this was the only discipline he has re- ceived from Foreman who has been his immediate super- visor for 11 years. He did not protest the warning or complain to Foreman that he thought it was unfair. He testified further that Foreman was "a good fellow to work with " Samuel Hobbs testified as follows: He has been em- ployed by Respondent for almost 5 years. He was initial- ly approached by McBroom to sign the decertification petition in front of the warehouse the Monday prior to the Fourth of July (June 27). He read the petition which stated that the employees no longer wanted to be repre- sented by the Union and told McBroom, "I couldn't sign it " He was again asked by McBroom to sign the petition on July 2, a Saturday evening when both he and McBroom were called out on an outage in Baker, Flori- da. He was also asked to sign the petition on another oc- casion when he was on a jobsite doing reconstruction work around July 1. On this occasion, Foreman asked him if he had signed the petition that was being circulat- ed, and Hobbs replied that he had not. Foreman asked him why he had not done so, and Hobbs told him that without representation he might not obtain an apprentice lineman's job which lie was next in line to receive. Fore- man told him not to worry about this because in all the years that he, Foreman, had been working for Respond- ent, anyone who was entitled to, or in a position for such job, had been given an opportunity to do it and told Hobbs not to worry about the job He believes that this conversation took place in the middle of the first week of July. Additionally, on the Friday after the Fourth of July weekend, he and other employees were in the break (assembly) room about 820 to 8.30 a in., and Foreman was sitting across from them at the same table. At that time Dorriety came into the room and asked generally whether anyone wanted to sign the petition before it was sent to the Labor Board, and then specifically asked Adams, Jackson, and Hobbs, all of whom declined, whereupon Dorriety and Foreman left the room. Hobbs also testified that during the last week the petition was circulated, Foreman came up to him on several occasions on the construction site and told him to remember where his livelihood and bread and butter came from. On cross-examination, Hobbs testified that Foreman has been his immediate supervisor for 3-1/2 years, that Foreman has never taken disciplinary action against him and that he has a good relationship with Foreman. CHOCTAWHATCHEE ELECTRIC Hobbs also testified that the petition he read on the occa- sion outside the warehouse was typed. Hobbs also testi- fied that employee Roger Byrd had been asked by Dor- riety to sign the petition in the presence of Foreman in the breakroom. David Adams testified as follows: He has been em- ployed by Respondent for a period of 9 years. He was initially contacted by McBroom on the first of July about 5 to 10 minutes prior to worktime in front of the warehouse He was shown a copy of the petition by McBroom who told him, "We wish you would sign it, but it doesn't make any difference at all, whether you do or not, the Union is going, one way or the other." Adams read the petition which stated that the "people" (employees) of Respondent no longer wished to be rep- resented by the Union. Adams declined to sign the peti- tion. He also recalled an occasion on the Friday before the Fourth of July weekend when he was asked to sign the petition by Dorriety in the office of the staking engi- neer (also a member of the bargaining unit). He told Dorriety he wanted to think about it over the weekend. Dorriety brought the petition to him again and he de- clined to sign it in the presence of Foreman in the break- room; he placed this occasion as the following workday after the Fourth of July weekend. He later stated he was not certain of the day of this occurrence. On cross-examination Adams testified as follows: He has never been disciplined by Foreman and has had a good relationship with him over the years. To the best of his knowledge, the petition was typed. On being shown his affidavit taken by a Board agent wherein he had stated that the petition was written in longhand, he stated that it was in longhand the first time he saw it, but on the latter two occasions he saw the petition, it was typed In the presentation of its case, the Respondent called McBroom and Dorriety who had both signed and circu- lated the decertification petition (R. Exh. 6), Foreman, James E. Smith, the manager of Respondent's DeFuniak Springs facility, and the members of the bargaining unit who had signed the petition. McBroom testified as follows He initiated and drafted the decertification petition on July 1 as a result of the general dissatisfaction among himself and other bargain- ing unit employees with the Union's representation of them during the prior 3 years. He testified he initially ob- tained the signatures of several employees prior to start- ing time at 7:30 a in. at the DeFuniak facility on July 1, that he also asked Jackson, Hobbs, and Adams to sign shortly thereafter that morning, and that they declined to do so and that Dorriety then took the petition to the Re- spondent's Freeport (Florida) facility and obtained the signatures of the four unit employees assigned to that fa- cility. Dorriety retained the petition until Friday, July 8, when he returned it to McBroom. A total of 14 employ- ees, including McBroom and Dorriety (approximately 75 percent of the employees in the unit), had signed the pe- tition. The petition was mailed to the National Labor Re- lations Board Office in New Orleans, Louisiana, on the afternoon of July 8. On the morning of Monday, July 11, McBroom presented a copy of the petition to Respond- 599 ent Manager Smith in Smith's office and informed him of the action taken by the employees. McBroom testified that he was the sole initiator of the petition, that the petition was handwritten, and that no member of Respondent's management told him to initiate the petition, and further that no member of Respondent's management was present when he obtained the signa- tures of several employees in the employee breakroom on the morning of July 1 The accompanying letter sent to the National Labor Relations Board by McBroom on July 8 (R. Exh. 3) states in part, "We are enclosing a pe- tition and ask that you set up an election." Subsequently, McBroom was informed by the Board Office that the pe- tition was untimely and improperly filed and should have been filed within the 60-day period prior to the expira- tion of the labor agreement on July 30. Additional forms were also sent to McBroom from the Board Office and filled out and returned. The petition was then dismissed by the Regional Director for Region 15 of the Board on the ground that violations of Section 8(a)(1) and (5) of the Act had been committed by the Employer (Respond- ent). Dorriety testified as follows: On Friday, July 1, McBroom showed him the decertification petition in the breakroom before 8 a.m., and Dorriety read it and signed it. It had been discussed previously. Four other employ- ees (Jerry Nelson, Adrian Gillis, Charles Caswell, and Thomas Johnson) also signed it in the breakroom prior to 8 o'clock that morning At the time the petition was signed by Dorriety and the other employees, neither Jimmy Foreman nor any other supervisor nor company representative was present, nor had Jimmy Foreman or any other member of management or supervisor dis- cussed anything with Dorriety about signing it prior to this. After the petition was signed by Dorriety and the other employees, Dorriety requested permission of his supervisor for time off and took the petition over to the Freeport facility where it was signed by employees Ray Maples, Mark Hart, and Leonard (Zeke) Hilligoss. There were no supervisors or members of management present when he obtained his signatures. He then took the peti- tion to the home of Ronnie Hebert who was not working that day and obtained his signature at which time there was also no supervisor or management representative present. Prior to this time, no member of management had discussed the petition with him Prior to the circula- tion of the petition, he had not discussed it with anyone but McBroom. After he returned from Freeport on that date, he kept the petition on a clipboard in the shop where he was a mechanic until he returned it to McBroom. Dorriety testified further that he recalled a conversa- tion with Jackson and Hobbs in the employee parking lot after July 1, when he approached them after quitting time when they were returning from the jobsite and asked them to sign the petition. They responded they wanted to think about it. Jimmy Foreman was not there at this time. He has never heard Jimmy Foreman tell other employees to sign the petition, help get rid of the Union and they can obtain a raise, or words to that effect. He does not recall any occasion when Foreman 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was there and pulled out his wallet and told employees that they would get more money or a raise if they got rid of the Union or words to that effect. He did not recall any conversation with employee David Adams concerning the petition except an incident wherein Adams told him (Dorriety) to "Bring the petition and we'll all sign it " Employees Larry Tankersley, Dennis Pippin , and Jerry Cosson all signed the petition in his presence in the shop . No member of management or su- pervisor was present at the time these employees signed the petition. He does not remember a conversation with Adams in the office of Darrell Smith wherein Dorriety asked Adams to sign the petition. The longhand petition (R. Exh . 3) was the only petition which was circulated and there never was a typed petition He recalls talking to employees Cosson, Hobbs, and Jackson in the break- room one morning about signing the petition; Jimmy Foreman was not in the room at this time . He does not recall when this conversation occurred. When he re- turned the petition to McBroom, all 14 signatures of em- ployees were on the petition. McBroom drafted a note to go with the petition and McBroom and Dorriety signed it. At no time when he discussed the petition with any other employees was Jimmy Foreman or any other su- pervisor in the immediate area . On cross-examination, Dorriety testified that he may have talked to Jackson about the petition a third time in the warehouse as well as in the parking lot and in the breakroom. Respondent also called as witnesses the 12 other em- ployees who had signed the decertification petition in ad- dition to McBroom and Dorriety. These employees testi- fied that they signed the petition of their own free will, and that no member of management coerced them into signing the petition or otherwise discussed it with them prior thereto. Respondent also presented Supervisor Jimmie Fore- man who testified as follows : He did not discuss or in any manner encourage the signing of the decertification petition by any of the employees, and he was not present during any time when the employees signed the petition. He became aware of the circulation of the petition by overhearing employees discuss it but he did not partici- pate in such discussions. James Eugene Smith , Respondent's general manager, testified as follows: There were 20 employees in the col- lective-bargaining unit as of July 1. To his knowledge, no managerial or supervisory employee had anything to do with the preparation or circulation of the decertifica- tion petition. He initially saw a copy of the petition signed by the employees (R. Exh 3) on the morning of July 11 when McBroom brought it into his office and in- formed him that he had mailed the original to the Board. He had been aware of rumors of the circulation of the petition but he was not expecting McBroom who asked to see him on the morning of July 11. After he received the copy of the petition from McBroom , he contacted his legal counsel by telephone as contract negotiations between Respondent and the Union were scheduled for the next day. His legal counsel advised him that he would contact James G. Stuart , International representa- tive of the IBEW, and inform him that in view of the petition Respondent could not bargain with the Union. This was confirmed by a letter to Stuart dated July 11 signed by Respondent's legal counsel (G C. Exh. 3) which asserted Respondent's position that the decertifica- tion petition from the employees constituted an objective consideration of doubt concerning the Union's majority status as representative of the employees in the bargain- ing unit. Analysis After a review of all of the testimony, I am convinced that Supervisor Jimmie Foreman did, in fact, encourage and participate in the circulation of the decertification petition with respect to employees Jackson, Hobbs, and Adams as set out in their testimony I found these em- ployees to be credible witnesses who testified in a forth- right manner concerning the participation of Foreman in the decertification effort. Although I recognize certain inconsistencies in their testimony as to whether the peti- tion was typed or handwritten and their placement with respect to certain of the dates, I do not find these incon- sistencies damaging to their overall credibility. I thus find that Foreman did unlawfully encourage them to sign the decertification petition by promising them raises (as in the case of the parking lot incident with Jackson and Hobbs) and in the incident involving Jackson inside the hall, by comments to Jackson and Hobbs on the jobsite that they could sign the petition now, and by his interro- gation of and threats to Hobbs that Hobbs should re- member where his bread and butter and where his liveli- hood came from , all in violation of Section 8(a)(1) of the Act. I further find that Foreman was present in the breakroom on July 8 when Dorriety again asked employ- ees Jackson, Hobbs, Adams, and employee Byrd to sign the petition and abruptly left after they declined to do so I find that Foreman's presence in this situation was not a mere happenstance in view of the background of Foreman's prior engagement in the violations of the Act as found herein , and thus constituted unlawful surveil- lance of these employees in violation of Section 8(a)(1) of the Act I do not credit the disclaimers of McBroom and Dorriety that Foreman was not present during any of the times asserted by Jackson, Hobbs, and Adams. I find it extremely unlikely that three long-term employ- ees, all in good standing with Respondent , such as Jack- son, Hobbs, and Adams, would fabricate their testimony in this case I found that Jackson, Hobbs, and Adams each responded candidly to cross-examination questions as to whether they had been disciplined by Foreman. Jackson, alone , had been disciplined and this was limited to a written warning for a safety infraction . I credit Jackson's testimony that he did not harbor any ill feel- ings toward Foreman as a result I further find that the comments and action of Foreman as a supervisor and agent of Respondent may properly be imputed to Re- spondent and find that Respondent thereby violated Sec- tion 8(a)(1) of the Act On the expiration of a collective-bargaining agreement, the incumbent union is accorded the presumption of con- tinued majority status as the exclusive bargaining repre- sentative of the employees in the bargaining unit See Guerdon Industries, 218 NLRB 658, 659 (1975), citing CHOCTAWHATCHEE ELECTRIC Barrington Plaza & Traginew, 185 NLRB 962 (1970), enf. denied on other grounds 470 F 2d 669 (9th Cir. 1972). This presumption is a rebuttable one, however, and may be rebutted by evidence that the union has lost its major- ity status or by a good-faith doubt on the part of the em- ployer based on objective considerations concerning the continued majority status of the union. See Guerdon In- dustries, supra, citing NLRB v. Gulfmont Hotel Co., 362 F 2d 588 (5th Cir 1966), enfg. 147 NLRB 997 (1964). In order to establish a good-faith doubt, the employer must show that the doubt was based on objective consider- ations and was asserted by the employer in a context free of unfair labor practices. See Guerdon Industries, supra, citing Nu-Southern Dyeing & Finishing, 179 NLRB 573 fn. 1 (1969), enfd. in part 444 F.2d 11 (4th Cir. 1971). The decertification petition signed by a majority of the employees is a recognized objective consideration which may give rise to a reasonably based or good-faith doubt, if it has occurred in the context free of unfair labor prac- tices. KSD-AM Radio, 262 NLRB 687 (1982). In the in- stant case the central issue with respect to the allegation of violation of Section 8(a)(5) is whether the decertifica- tion petition was obtained in a context free of unfair labor practices so as to permit Respondent to justifiably rely on it as establishing a good-faith doubt of the Union's continued majority status and as a basis for Re- spondent's refusal to bargain with the Union. In assessing the overall impact of the finding of 8(a)(1) violations having been committed by Respondent in sup- port of the decertification petition, I find that Respond- ent's reliance on the petition as objective consideration of a good-faith doubt of the Union's majority status is misplaced and its refusal to bargain under these circum- stances was violative of Section 8(a)(5) and (1) of the Act notwithstanding the unrebutted testimony of the 14 employees who signed the petition that they did so with- out being influenced or coerced by Respondent to do so. In making this determination, I note the testimony of both Foreman and Smith that they were aware of rumors of the circulation of the petition. I find that there is a valid basis for drawing an inference that the employ- ees who signed the petition were also aware of the par- ticipation of Foreman in the encouragement of the sign- ing of the decertification petition notwithstanding their testimony that they themselves received no promises or pressures from Respondent's managerial or supervisory representatives In making this determination , I find that the unfair labor practices engaged in by Respondent through its supervisor Foreman were not isolated inci- dents Rather, Foreman solicited the signatures of Jack- son and Hobbs in support of the decertification by prom- ising them improvements in wages and threatened Hobbs concerning his failure to sign the petition. It also en- gaged in surveillance of the solicitation of employees Jackson, Adams, Hobbs, and Byrd to sign the decertifi- cation petition on July 8 by the presence of Foreman in the breakroom. Moreover, the solicitation of the employ- ees in the relatively small bargaining unit (20 employees) to sign the decertification petition occurred in part on Respondent's premises during the working time of the employees. I thus find that notwithstanding the unrebut- ted testimony of the employees who signed the petition 601 that they were neither influenced nor coerced, that the totality of the circumstances in this case is sufficient to warrant an inference that they were made aware of Foreman's conduct in support of the decertification peti- tion. See Piggly Wiggly, 258 NLRB 1081 fn. 8 (1981), enfd. 705 F.2d 1537 (11th Cir. 1983). I find that Re- spondent has failed to rebut this inference. I thus con- clude that the commission of the unfair labor practices by Foreman occurring at that time on the jobsite and on Respondent's premises were sufficient to taint the peti- tion Respondent's withdrawal of recognition and refusal to bargain with the Union under these circumstances interfered with the rights of its employees under Section 7 of the Act to select and/or retain their bargaining rep- resentative. See Idaho Fresh Pak-Inc., 215 NLRB 676, 679 (1974); Cantor Bros., 203 NLRB 774 at fn 4 (1973). See also Harvey's Resort Hotel, 236 NLRB 1670 (1978); Acme Markets, 232 NLRB 219 (1977); Nu-Southern Dyeing & Finishing, Marriott Corp., 258 NLRB 755, 768- 769 (1981); Jax Mold & Machine, 255 NLRB 942, 951- 952 (1981), Rockland Lake Manor, 263 NLRB 1062, 1070 (1982); Forester Beverage Corp., 265 NLRB 285 fn 3 (1982). III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices as found in section II, above, occurring in connection with operations of Re- spondent as found in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. On the basis of the foregoing findings of fact and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Choctawhatchee Electric Cooperative, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By soliciting the support of its employees to sign a petition to decertify the Union as the bargaining repre- sentative of the employees through the interrogation of its employees, the issuance of promises of raises in pay if the employees supported and signed the decertification petition, and threats of retaliation if they failed to sign the petition, and by engaging in surveillance of its em- ployees and their responses to the solicitation of their signatures on the petition, Respondent violated Section 8(a)(1) of the Act. 4. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees includ- ing linemen, apprentice linemen, servicemen, equip- ment operators, groundmen, custodians, service rep- resentatives, shop mechanics, warehousemen, sys- 602 DECISIONS it ; f ' NATIONAL LABOR tems operation clerk, engineering aide, and store- keeper employed by the Employer-at its DeFuniak Springs, Freeport, and Baker, Florida facilities; ex- cluding all office clerical employees, sales employ- ees, all other employees, professional employees, guards, and supervisors as defined in the Act 5. At all times material herein the International Broth- erhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC has been, and is now, the exclusive rep- resentative of all employees in the aforesaid bargaining unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. Since July 11, 1983 , by refusing to meet with the International Brotherhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC for purposes of negoti- ating a collective-bargaining agreement covering the bar- gaining unit employees, Respondent has violated Section 8(a)(5) and ( I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be ordered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act and to post the appropriate notice. Having found that Respondent engaged in violations of Section 8(a)(1) of the Act, it shall be ordered to cease and desist therefrom. Having found that Respondent has refused to meet and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, it will be ordered to cease and desist therefrom and, upon request, to bar- gain collectively in good faith wih the Union as the ex- clusive representative of all of the employees in the ap- propriate unit, and in the event an understanding is reached, to embody such understanding in a signed agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses RELATIONS BOARD ORDER The Respondent, Choctawhatchee Electric Coopera- tive, Inc., DeFuniak Springs, Florida, its officers, agents, sucessors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees, promising them raises, or threatening them with retaliation or engaging in sur- veillance of them in its efforts to solicit their support for a petition to decertify the Union or to attempt to per- suade them to abandon their support for the Union. (b) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with the International Brotherhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC as the exclusive bargaining repre- sentative of its employees in the appropriate unit. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act (a) On request, bargain collectively with the Interna- tional Brotherhood of Electrical Workers, Local Union No. 2152, AFL-CIO-CLC as the exclusive representa- tive of all of its employees in the appropriate unit and if an understanding is reached, embody such understanding in a written agreement. (b) Post at its facilities in DeFuniak Springs, Freeport, and Baker, Florida, copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "