Hohn Industries, Inc.

HOHN INDUSTRIES 71 Hohn Industries, Inc. and Sheet Metal Workers' International Association Local Union No. 71. Case 3-CA-13209 26 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 13 August 1986 Administrative Law Judge Thomas R. Wilks issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief to the exceptions.I The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hohn Industries, Inc., Batavia, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs. "(a) Refusing to bargain with the Sheet Metal Workers' International ' Association, Local Union 1 We deny the General Counsel's request to strike the arguments set forth in Respondent's exceptions under Sec. 102 46(b) of the Board's Rules and Regulations. We also deny the General Counsel's request to add a visitatorial clause in the judge's recommended Order, since the General Counsel has failed to demonstrate sufficient grounds for a visita- tonal clause in this case 2 In adopting the judge's finding that the Respondent violated Sec. 8(a)(5) and (1) by unlawfully withdrawing recognition, we agree with the judge's finding that the Respondent did not have a sufficient basis for doubting the Union's majority The Respondent conducted a poll which failed to conform to the safeguards set forth in Struksnes Construction Co., 165 NLRB 1062 (1967), for employer-conducted polls The signing of the petition by the employees was a direct result of the unlawful poll There- fore, the Respondent was not justified in relying on it as objective evi- dence of the Union's loss of majority status Absent the 8 April 1986 peti- tion, the facts of this case present insufficient grounds for the Respondent to raise a reasonably based doubt as to the Union's majority status The Respondent thus violated Sec 8(a)(5) and (1) of the Act by withdrawing recognition of the Union. We find it unnecessary to pass on the judge's alternative rationale for finding the violation Chairman Dotson additionally finds it unnecessary to pass on the judge's discussion of the obligations of an employer who assumes a business with respect to the incumbent union of the previous employer, or the judge's discussion of what is required before an employ- er has sufficient basis for conducting a poll. Member Johansen, who did not pass on the legality of the employee poll in Boaz Carpet Yarns, 280 NLRB, 40 (1986), agrees that that case is distinguishable. No. 71, as the exclusive bargaining representative of the employees in the bargaining unit." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 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 with the Sheet Metal Workers' International Association, Local Union No. 71, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT coercively poll you about your desire for representation by Sheet Metal Workers' International Association Local Union No. 71. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed ' you by Section 7 of the Act. WE WILL recognize and, on request, bargain in good faith 'with the above-named Union regarding rates of pay, wages, hours of employment, and other terms and conditions of employment for the employees'in the appropriate unit and, if an under- standing is reached, reduce the agreement to writ- ing and sign it. The appropriate unit is: All full-time and regular part-time employees normally employed in the manufacture of the Hirschman-Pohle line of rooftop ventilators and employed at our Batavia Industrial Park, Batavia, New York facility, excluding all other employeesy, office clerical employees, guards, and supervisors as defined' in the Act. HOHN INDUSTRIES, INC. Michael Cooperman, Esq., for the General Counsel. Peter J. Spinelli, Esq. (Harris, Beach, Wilcox, Rubin and Levey), of Rochester, New York, for the Respondent. 283 NLRB No. 13 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION III. THE UNFAIR LABOR PRACTICES STATEMENT OF THE CASE A. Issues THOMAS R. WILKS, Administrative Law Judge. This case was tried before me at Buffalo, New York, on 16 June 1986, pursuant to an unfair labor practice charge filed on 17 April 1986 by Sheet Metal Workers' Interna- tional Local Union No. 71 (Union) against Hohn Indus- tries, Inc. (Respondent), and a complaint issued by the Regional Director of Region 3 on 14 May 1986. The complaint alleges that the Respondent, by its agent, em- ployee Robert Scott, violated Section 8(a)(1) of the Act by coercively interrogating his three fellow bargaining unit employees, i.e., polling them about whether they de- sired continued representation by the Union, and that it further violated Section 8(a)(5) of the Act by thereafter withdrawing recognition of the Union as their bargaining agent. The Respondent's answer denied the commission of an unfair labor practice. At the trial all parties were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to thereaf- ter file written briefs that were ultimately received by me on 28 July 1986, On the whole record of this case, and from my obser- vation of the witnesses and their demeanor, and after evaluation of the oral arguments and written briefs, I make the following FINDINGS OF FACT 1. BUSINESS OF RESPONDENT At all times material herein, Respondent, a New York State corporation with an office and place of business at Batavia Industrial Park, Batavia, New York (Respond- ent's facility), has been engaged in the production of sheet metal products. Since commencing operations about August 1985, Respondent, in the course and con- duct of its operations, sold and shipped from its Batavia, New York facility products, goods, and materials valued in excess of $39,000 directly to points outside the State of New York. Based on a projection of its operations since about August 1985, at which time Respondent commenced its operations, Respondent, in the course and conduct of its operations for the 12-month period begin- ning August 1985, will have gross revenues in excess of $150,000 and will ship and sell from its Batavia, New York facility goods and materials valued in excess of $50,000 directly to points outside the State of New York. It is admitted, and I find, that Respondent is now, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It is admitted, 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 main issue in this case is whether the Respondent, as a successor employer which had voluntarily recog- nized the Union as bargaining agent for a unit of four employees, subsequent to a non-Board adjustment of a prior refusal to recognize an unfair labor practice charge, violated the Act by withdrawing recognition soon after- ward based on the polling of its employees by employee Robert Scott. Subordinate within this issue is whether Scott acted as an agent of the Employer in conducting the poll. A second issue raised by Respondent in its brief is whether, regardless of the poll, the Union had in fact lost its majority status, and whether the Respondent pos- sessed a good-faith doubt of the Union's majority status sufficient to justify its withdrawal of recognition. B. Facts 1. Background The production of sheet metal ventilators at Respond- ent's facility had previously been performed by Hirsch- man-Pohle Company, Inc., whose production employees had been represented by the Union for 30 years. In Octo- ber 1985, the product line was sold to Respondent, which continued the operation of the business with the same employees. After its acquisition of the business in early October, Respondent was confronted with and de- clined the demand for continued recognition of the Union. The Union thereafter filed an unfair labor prac- tice charge in Case 3-CA-12952 that alleged a violation of Section 8(a)(5) of the Act based on the refusal of Re- spondent as a successor employer to recognize the Union as continued majority employee bargaining agent. The Respondent contended that it was not a successor em- ployer. On 7 and 12 March 1986, Respondent executed a non- Board settlement agreement, the terms of which the Re- spondent acquiesced as successor employer to recognize the Union as the majority bargaining agent for employ- ees in the historic bargaining unit. After a few days the unfair labor practice charge was withdrawn with the ap- proval of the Regional Director. All parties agree to the applicability herein of Harley-Davidson Co., 273 NLRB 1531 (1985), and that Respondent's bargaining obligation arising from that settlement agreement is ,that of a suc- cessor employer and that the Union had at most a rebut- table presumption of majority representative status., Between 7 and 14 March, the Union's business manag- er, Glenn Gibson, by telephone, requested Respondent's president and manager, David Hohn, to meet and negoti- ate a collective-bargaining agreement. Gibson was told to contact Respondent's attorney, Brian 0' Connor. Within a day or so, Gibson communicated by telephone with O'Connor and was told to draft the Union's propos- al, and that a meeting would be held after receipt of these proposals. Gibson proceeded to draft these propos- als. Afterward, in the last week of', March, hen attempted to inform O'Connor that the proposals were complete HOHN INDUSTRIES and that a meeting should now be arranged . He was told that O'Connor was on vacation . Subsequently, Gibson's office received a message that O'Connor had telephoned and stated that Gibson would soon be in receipt of a letter from Respondent. About 13 April, Gibson received a letter from O'Con- nor dated 10 April which stated that Hohn had received an "unsolicited letter" signed by all four of the bargain- ing unit employees which disclosed that they had voted among themselves by 3 to 1 in favor of no further repre- sentation by the Union. A photocopy was enclosed. O'Connor's letter concluded that the Union had lost its status as majority employee bargaining agent and that it was inappropriate to engage in any collective bargaining with it. 2. The status of Robert Scott David Hohn testified that he is the owner and presi- dent of the Respondent as well as its traveling sales agent. When engaged in sales solicitation he is absent from the plant. From the context of his testimony, it ap- pears that he is the sole manager and production supervi- sor of the four unit employees. One of the four bargain- ing unit employees, Robert Scott, not only performs the same daily production duties as his coworkers, but he also serves as leadperson and conduit of instructions and orders from Hohn. Scott testified that he assigns work to and signs the timecards of his coworkers. Hohn testified that generally assignment of work is determined by each man's job function, and the job functions called for are determined by predetermined job plans on blueprints. He explained that when assignment decisions are made that he and Scott will jointly discuss it and that sometimes joint decisions are made and sometimes Scott will make the assignment decision. Vacation and time off requests of unit employees are submitted by the employees to Scott who in turn submits them to Hohn for approval. Scott maintains his own office at the plant. Scott is not alleged to be a supervisor, nor is there suf- ficient evidence to conclude that he exercises that type of independent discretion indicative of supervisory au- thority as defined by the Act. However, it is clear that Scott occupies a preeminent position among the employ- ees as the conduit of Hohn's decisions that affect em- ployees' work conditions, i.e, what Scott tells the em- ployees concerning their work status is certainly likely to be and intended to be perceived by them as the policy of Respondent. 3. The alleged rejection of collective-bargaining representative Hohn testified that he decided to meet with the bar- gaining unit employees and to read to them a prepared statement concerning union representation . Such a meet- ing was held on 24 March 1986. Hohn testified initially as follows concerning the purpose of the meeting. [W]e had a meeting with them because there was various comments presented to me, questions re- garding their rights as employees and in regards to the union. They had mentioned several times that 73 they had requested withdrawal cards and had been refused. When he was asked to be more specific in his testimony, Hohn responded, "This is actually--it comes to me through my engineer who is much closer to the employ- ees in the shop than I was." In effect, Hohn then retract- ed his testimony . Hohn related only one conversation he had back in November 1985 with engineer Bob McCombs, a nonunit employee . He testified that McCombs had told him that during the last week of Oc- tober that he had witnessed a business agent in a con- frontation with three unit employees in the plant parking lot wherein their requests for membership withdrawal cards were rejected and they were threatened with blacklisting if such requests persisted. 'Thus Hohn gave no specifics about any conversations with bargaining unit employees concerning union representation disaffection prior to the March meeting, nor did he relate any other reports of employee disaffection. Hohn testified further, without detail or specifications, that he held the March meeting because: they were getting feedback from the Union that they were going to have a contract and there was a lot of gray areas, they had questions, they were get- ting upset because they were getting conflicting sto- ries, so we decided we'd have a meeting with them and set the record straight as to what actually oc- curred in the settlement. Thus these more recent reports to Hohn appear related to contract negotiations, and not to union disaffection or membership withdrawal. On 24 March, unit employees Arthur Stothers and Roger Morgan were summoned by Scott to the plant's office. Union steward David Roblee, a unit employee, was not present at the meeting. Hohn read to the em- ployees a two-page speech prepared by his attorney. In that speech he made the following points paraphrased or quoted as follows: 1. Respondent entered into a settlement of an unfair labor practice charge which required continued rec- ognition of the Union by the Respondent as a suc- cessor employer. 2. The Union "currently" has the right to represent and bargain for unit employees. 3. Unit employees are not obliged by the settlement to retain their union membership or to pay dues. There is no current contract and thus no existing union-security obligation nor check off provisions. 4. Employees , may , not be compelled to join the union by threat of blacklist. 5. "Some of you have asked me how they can with- draw from union membership oi eliminate the Union as their bargaining representative . Under the National Labor Relations Act, you are free to de- certify the Union at any time before a new collec- tive bargaining agreement is reached . However, I cannot assist you or encourage you to do so. This is up to you alone. If you need further information re- 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD garding decertification of Local '71 or any other issue, you must contact the National Labor Rela- tions Board yourself. I have the names and phone numbers of three employees at the Buffalo office who are obligated by law to answer your questions and assist you in any way possible. There names are as follows: [names deleted] 7. [sic] That is all that I have'to say to you. Howev- er, I would like to answer any questions that you may have regarding this situation. Hohn failed to testify to any current event in justification of the assertions in item 5 regarding membership with- drawal or union elimination. I credit Hohn that he read the speech verbatim. ' Robert Scott, a' witness who was called by the Gener- al Counsel, could not recall the substance of the speech. After' the speech, however, both he and Hohn testified that there" was some discussion. Although Scott was not called as an adverse witness, his demeanor revealed a hesitancy and reluctance when responding to counsel for the General Counsel's questions, but a greater spontanei- ty, if not alacrity, in answering Respondent counsel's questions in cross-examination, particularly 'when those questions were of a leading nature. Scott testified in' response to counsel for the General Counsel's question that in the postspeech discussion which concerned the substance of the letter, Hohn ex- pressed 'a desire for the employees to decide whether they wanted union representation. He did not particular- ize just how Hohn verbalized that desire. In cross-exami- nation Scott testified that in the discussion he asked Hohn whether Respondent would encounter adversity in marketing its products as a nonunion shop and that Holin responded that nonunion representa'tion would not affect employees' jobs. He also responded "yes" to Respondent counsel's questions concerning whether Hohn stated that nonunion representati'onr would make' no' difference, and that Scott had stated at the meeting'that he was "asking for a withdrawal card from the union." He further testi- fied on the rephrasing of another leading question that Morgan stated "something about having been suspended from the Union and he testified [Morgan] didn't want to discuss it, I guess."' Scott ' testified that Stothers also asked whether rejection of union representation would affect employees' jobs and ,whether Hohn could supply the employees with the names of NLRB agents who could provide them' with information. When asked by Respondent's 'counsel whether that request "had any- thing to do with a withdrawal from the Union" he an- swered with certitude that it did not. He answered fur- ther "yes" to the question as to ' whether Strothers said "anything about the amen discussing it [withdrawal from the Union] among themselves," but explained that Stothers did not state that employees would make a deci- sion as to "withdrawal from the Union." Hohn testified that during the postspeech conversation Stothers asked about, the probability of adverse economic impact by the loss ofthe union label from Respondent's product'line. He testified' that employee Morgan arose during the discussion and proceeded to walk out on stat- ing that' he had been suspended from, union membership, and that Scott had stated he was asking the Union for a membership withdrawal card. He added, however, that Stothers did most of the talking and Stothers stated a fear concerning whether as a long-time union member his rejection of the Union would affect "his service if for some reason he left the Company and went someplace else and it' was a Union shop," but that "some of the other guys just kidded him and 'said, `look Art; you don't have any pension benefits or anything else so it doesn't make any difference."', Hohn testified that the meeting ended, and as - the employees arose Stothers stated, "Well, we're going to have to discuss this among our- selves and get back to you." Stothers testified as a rebuttal General Counsel wit- ness. According to him, the meeting lasted a mere few minutes, i.e., Hohn read his speech and invited questions. The only question Stother's was able to recall was that someone asked about the adverse effects of a loss of the union label. Stothers denied that he had -stated anything at the meeting about withdrawing from union member- ship. He denied raising any concern "that if there was no union there [he] might lose benefits." He neither con- firmed nor denied other accounts of the balance of the meeting by either Hohn or Scott. - Stothers testified that at the close of the meeting Hohn 'invited further future questions. He therefore proceeded to engage Hohn in a later private conversation.' He testi- fied without contradiction that he asked Hohn whether he wanted the employees to have union representation and Hohn stated he did' not and,-, when asked why not, stated that union representation would deprive him of the flexibility to transfer employees from one job to an- other. In cross-examination it became clear that there was more to the meeting than `initially testified to by Stothers. He admitted "yes," that at the meeting Hohn told the employees "that it was really-up to them-wheth- er they wanted a union or not." He also admitted that during the meeting Hohn's wife, who serves as office clerical and receptionist, was also present and stated that she had "slips of paper" with NLRB agents' 'names, and that he took such a slip. He could not remember .doing so, but testified that- it was "possible" that he stated during the meeting that he was "going to find out whether the union could refuse his membership with- drawal card application." Further, in cross-examination, he did not deny that' he stated at the end of the meeting 'that the employees would discuss continued union repre- sentation among themselves. He explained that he just did not remember. Based on Hohn's greater certainty, Scott's corrobora- tion, and Stothers' admissions, I conclude that Stothers did tell Hohn that the employees would discuss further the, subject of union representation. I credit Scott's testi- mony that Stothers did not state to Hohn that the em- ployees would come to some- definite conclusion that would be reported to Hohn. Scott did not appear to have any motivation to give testimony adverse to Re- spondent. If, anything, he ' appeared eager to accommo- date counsel for Respondent's questions. Moreover, his self-interest would seem, to mitigate against antagonizing his employer. Furthermore, Hohn's own personal notes, HOHN INDUSTRIES 75 which he wrote within an hour of the meeting, merely state, "Art [Stothers] said they will have to discuss among themselves." Based on Stothers' concessions, I conclude that he did make a statement to the effect that he would make inquiries concerning withdrawal of union membership. It is uncontradicted that Morgan stated that he had been suspended from union membership. In view of Scott's and Hohn's uncontradicted testimony, I con- clude that Scott also stated that he was in the process of seeking a withdrawal of union membership application form. Therefore, at the conclusion of the meeting of 24 March 1986, Hohn had become aware that one employee was suspended from union membership, that one was in the process of requesting a membership withdrawal form, and a third was about to make inquiries as to with- drawing from union membership. However, no employee stated to him that they did not desire representation by the Union as nonunion members, i.e., representation without the obligation of a dues-paying membership. Nor did any employee state that they would consider decerti- fication of the Union, despite item no. 5 of Hohn's speech which referred to withdrawal of union member- ship "or" the elimination of the union as bargaining rep- resentative in the disjunctive as subjects of past employee inquiry. At most Hohn was told that the unit employees would discuss further among themselves, "withdrawal from the Union." Neither the testimony nor Hohn's own notes clearly reveal whether the employees were to dis- cuss the subject of nonunion representation, or the more limited subject of withdrawal from union membership with its attendant dues and obligations but short of com- plete nonrepresentation, or both. Further, Hohn was not told that the employees would report their decision to him, nor was there any deadline set:for them to report any decisions reached. Hohn was advised by his attorney during this period of time. NLRB agents were suggested to the employees as sources of information. Thus Hohn should have been aware that the employees had at least access to sources of information that would surely explain to them the dis- tinction between nonmembership and nonrepresentation. It appears that union steward Roblee, the fourth em- ployee, was read Hohn's speech the next day. According to Hohn's own testimony, it is clear that he had not been able to conclude on the basis of his infor- mation after 24 March that the majority of employees did not desire representation because he found it neces- sary to evoke from them some explicit decision . He testi- fred that 2 weeks went by without any further expression from the employees on the subject of union membership or union representation. Hohn testified that on 8 April he felt constrained to ask Scott whether the employees "had any discussions," and (in implicit recognition of Scott's role as his informational conduit) he "reminded him.' that they were going to get back to us and let us know what had been decided . ' Regarding Scott's response, Hohn's testimony is: ' Hohn's reference to "they" and "us" strongly suggest his identifica- tion of Scott with the managerial "us." He said he'd had a couple minor discussions; noth- ing concrete determined and he nays, well I can't get everybody together and he says, well, I don't know how to do this, and he said, well, my answer to him was they can either take a secret ballot or they can -take a vote or he can do anything, but I can't tell you how to do it. The conclusion that the employees had not agreed to come to a formal decision or to report such decision back to Hohn is enhanced by the fact that no delibera- tion or "vote" was taken by them nor was any report made to Hohn . This conclusion is buttressed by Scott's testimony. According to Scott, he did indeed have a couple of discussions with his coworkers after the speech . His mo- tivation in not approaching Hohn with news of an an- tiunion decision is revealed by his testimony that after the meeting at least two of the employees, Stothers and Morgan, told him that they "thought they wanted the union." The third employee was the union steward. Thus, according to Scott and even Hohn's testimony, there had been no employee initiative toward a revoca- tion of the status quo . Scott's testimony as to Hohn's ini- tiative toward instilling employees' actions in this regard is in certain important aspects 'markedly different from that of Hohn. Scott's testimony as to the 8 April conversation is as follows: According to Scott, on 8 April, Hohn confront- ed him in the work area of the plant and asked whether the employees "had decided on the Union or not." He answered that the employees "hadn't been talking about it, and nobody's made - up their mind yet." Thereupon, Hohn insisted that "he had to know today whether [the employees] want it or not." Hohn then told him to "take a vote on it." Scott agreed to do so . Nothing more was said. On cross-examination to Respondent's counsel, Scott answered "yes" to the assertions that at the March meeting Hohn ,told the employees that union representa- tion was a matter for their choice and that he did not want to get "directly" involved, and "'yes to the ques- tion, So you took this vote on your own?" In redirect examination he admitted that the idea, i.e., the initiative to take a vote, was not his but was that of Hohn. Within the full context of the events, and the conver- sation between Hohn and Scott even wider Hohn's ver- sion, I conclude that it is Respondent who put Scott in motion with the objective of forcing the issue on the em- ployees by means of some kind of a formalized group de- cision, which by any other name means, in effect , a poll- ing of the employees by Scott at Hohn's order, notwith- standing Hohn's appended disclaimers. However, if credibility resolution is necessary, I credit Scott's ver- sion. As noted above, it was clearly against his self-inter- est to testify adversely to Respondent, whereas Hohn's testimony was, of course, otherwise. Furthermore, Scott was most certain in demeanor with respect to who au- thored the idea of a vote. Hohn most certainly realized that nonaction of the em- ployees was a vote for the status quo. Hohn's pressure on Scott to ' force an explicit option was a clear signal that he wanted them to reject the status quo. Thus, de- 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spite having been told by two employees that they still ',thought" that they desired union representation and knowing that the third employee was the union steward, Scott followed Hohn's imperative to poll the employees that very day about continued union representation. He approached -each employee and told them to come to his office at breaktime. He told them, "we, were going to decide on the Union or not." When they assembled in his office, he stated to them: Dave [Rohn] wants us to know whether we want this Union or not, he wants us to vote on it; he says we can take a secret ballot or show of hands. One employee expressed a desire for a showing of hands which was acquiesced to by the others. The result was a 3-to-1 vote in favor of no further union representation. Scott reported the results to Hohn's daughter'who is an office clerical employee. She suggested that he put the information in writing. At this time Mrs. Hohn was in the room. Scott testified that he went back to his own office and composed a note which he arranged for each of the four employees to sign which states as follows: The four sheet metal workers at Hohn Industries took a vote and decided 3-1 against being part of the Sheet Metal Workers' International Association. Scott then delivered the note to Hohn's office. There- after, Respondent's counsel communicated with the Union as described above. C. Analysis The presumption of majority status of the Union may be rebutted by a demonstration of actual loss or a show- ing of a reasonable good-faith doubt. The Respondent's position is that based on the results of the employee petition and other employee expressions, it was clear that the Union had lost its majority status, or that in any event Respondent was warranted in doubting the'Union's majority status as in the Harley-Davidson case which involved an employee-initiated petition, and J. & J. Drainage Products Co., 269 NLRB 1163 (1984). In the latter case which also involved a successor employer, it was found by the administrative law judge that the pre- sumption of union majority status was rebutted by the existence of objective basis for reasonable doubt which consisted of (1) the age of the original certification, (2) the fact that only 6 of 32 unit employees were union members, (3) the statements of the union steward to the employer to the effect that employees did not wish to meet with the union representatives because they were not interested in the union, and (4) the absence of unfair labor practices. The Board has traditionally considered a wide range of'factors in making an' evaluation whether sufficient ob- jective phenomena individually or cumulatively supports a reasonable good-faith belief of loss of majority status. U-Save Food Warehouse, 271 NLRB 710, 715-718 (1984). This case, however, does not include many of the factors often taken into account, i.e.; change in employee com- plement, absence or inactivity of the union, closeness of the original majority designation, and, apart from the 8 April petition, a clear statement of rejection of union representation by a majority of the employees. Immediately prior to the receipt of the 8 April peti- tion, Respondent was possessed of no greater information of possible employee disaffection with the Union than it was back in November 1985 at the outset of its-half-year refusal to recognize and bargain with the Union. That lengthy period of frustrated bargaining efforts by the Union was caused by Respondent's refusal to acknowl- edge its status as successor, and not by a proffered doubt of majority status. Respondent recognized the Union in ,March 1986, having possessed essentially the same infor- mation of purported employee union disaffection, i.e., that three employees were possibly interested in with- drawing from union membership. The only difference by 24 March was that Hohn now was informed that one employee was suspended from union membership and one, had only requested, not executed, a membership withdrawal and a third intended to make inquiry about obtaining a membership withdrawal card. As I have con- cluded above, Hohn, by his insistence on a more clear- cut renunciation of the Union, had himself concluded that he did,not possess sufficient reasonable' doubt that the majority of the employees did not want union repre- sentation as such, in contradistinction to union member- ship and its obligations. Scott's more credible testimony shows that he, informed Hohn that the employees had made no disavowal decision. Even Hohn's testimony re- veals this. The Board has long distinguished employee expres- sions of membership and/or dues obligations rejection from expressions of a desire for nonrepresentation, and therefore the Board has not viewed such evidence alone as of sufficient weight to establish a reasonable doubt of majority status, much less evidence of actual loss of ma- jority status. Roger's I.G.A., Inc., 232 NLRB 1053 (1977), enfd. 605 F.2d 1164 (10th Cir. 1979); Carmichael Con- struction Co., 258 NLRB 226, 230 (1981), enfd. 728 F.2d 1137 (8th Cir. 1984). Administrative Law Judge Holmes, in J. & J Drain- age, supra 269 NLRB at 1171; evaluated evidence of a minority union membership as but "one factor" to sup- port the Respondent's claim it had a reasonable doubt of the Union's majority status. He did not rely on the factor of successorship, and the factor of the age of certification was not relied on by the Board in adopting his decision. I conclude that the facts of this case do not warrant a conclusion that Respondent had, exclusive of the 8 April employee "petition," sufficient grounds to doubt the ma- jority status of the Union. Counsel for the General Counsel concedes that a suc- cessor employer may rely on an employee petition in doubting the union's majority status, but he points out that where such petition has been relied on, it has been one that was initiated by the employees, citing for exam- ple Sun Coast Foods, 273 NLRB 1642 (1985), and Boaz Carpet Yarns, 280 NLRB 40 ( 1986). In the Sun Coast case the Board took great pains in rejecting the adminis- trative law judge's finding that the employee petition had been tainted by supervisory assistance. In the Boaz case, the employer conducted a poll of its employees in conse- HOHN INDUSTRIES 77 quence of the presentation of an employee-initiated peti- tion which revealed a clear rejection of a union as their bargaining agent. The Board's majority opinion in that case carefully observed that the employer "verified" the petition in a noncoercive manner that comported with the employees' rights under the Act, i.e., the purpose of the vote was communicated to them, they were assured that regardless of the outcome there would be no repris- als, and a secret ballot was utilized.2 The Board noted that these events occurred in the absence of a refusal of the employer to bargain in good faith. The General Counsel argues that Respondent as a suc- cessor employer did not have "thee option of postponing its bargaining obligation to make its own determination of whether the Union still enjoyed minority status." The General Counsel cites Aircraft Magnesium, 265 NLRB 1344 (1982). The Board stated therein that a union is not obliged to establish majority status when a successor em- ployer assumes the business, but that it is the successor employer's obligation to demonstrate actual or reason- ably believed loss of majority status. Furthermore, it held that "encouraging and sanctioning an employee- conducted election to test the Union's support" 60 days after its assumption of operations did not satisfy its obli- gation because, the Board stated, lack of union support on the later date had no relevance to the Union's status on the date when the Union demanded recognition, i.e., the dale of the assumption of business. The essential point in the Board's reasoning is the time differential, and thus the Board did not preclude per se a poll by a succes- sor employer. If a prerequisite for a poll is a reasonable doubt of majority status, then there is no need for a poll except as verification. The Respondent argues that it took no poll in this case inasmuch as Scott was not its agent. The factual finding above indicates the contrary. Respondent had clothed Scott with the general apparent authority of its agent by virtue of his position as conduit for Respondent's orders and instructions. Propellex Corp., 254 NLRB 839, 843 (1981). Scott's position as a bargaining unit member does not negate a finding of agency herein because not only did he possess a general apparent agency, he was specifi- cally made Hohn's agent for the polling. Scott, in turn, made that agency clear to the employees when he gath- ered them in his office. I therefore conclude that Re- spondent must be viewed not only as the author of the idea of a poll, but the actual polling agent. In the circumstances of this case, therefore, the conse- quent petition was a creature of the Employer's poll and did not precede it. Also, unlike the Boaz case, supra, the Employer did not apply the Struksnes safeguards. The purpose and effect of the vote was not clearly explained, there was no secret ballot, and no assurances against re- prisals were made at the polling which I therefore find was a coercive interrogation. Furthermore, unlike Boaz, supra, the polling did not occur in the absence of a refus- al to bargain. Respondent admitted that it is a successor employer. Thus it had an obligation to bargain with the 2 This is an implicit reference to the safeguards required by the Board for permissive employer polling, as set forth in Struksnes Construction Co_, 165 NLRB 1062 (1967). Union on the assumption of the business, but it had re- fused to bargain for almost one-half year. Having frus- trated the Union's request to bargain, only after it of- fered to bargain did it take a poll of its employees' senti- ments. In light of all the circumstances in this case , I cannot conclude that there was demonstrated a loss of the Union's majority status nor a reasonable good-faith doubt as to its majority status. Accordingly, I conclude that Respondent violated Section 8(a)(1) and (5) of the Act as alleged in the complaint. CONCLUSIONS OF LAW 1. Respondent Hohn Industries, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Sheet Metal Workers' International Association Local Union No. 71 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees nor- mally employed in the manufacture of the Hirsch- man-Pohle line of rooftop ventilators and employed by the Respondent at its Batavia Industrial Park, Batavia, New York facility, excluding all other em- ployees, office clerical employees, guards and super- visors as defined in the Act. 4. Since about 1 October 1985, and at all times materi- al herein, the Union has been the designated exclusive collective-bargaining representative of Respondent's em- ployees in the unit described in paragraph 3, and since about 14 March 1986 the Union has been recognized as such representative by Respondent. Such recognition has been embodied in a recognition agreement dated about 14 March 1986. 5. At all times material herein and for the past 30 years, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the em- ployees in the unit for the purpose of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. 6. Respondent has engaged in unfair, labor practices in violation of Section 8(a)(1) of the Act by the conduct of its agent, Robert Scott, on 8 April 1986, whereby it coer- cively polled its employees concerning their desire for union representation. 7. Respondent engaged in unfair labor practices in vio- lation of Section 8(a)(1) and (5) of the Act on 10 April 1986 and thereafter by withdrawing recognition of the Union as the exclusive bargaining representative of the unit and, since, failing and refusing to recognize or bar- gain with the Union as such representative. 8. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(05) and (7) of the Act. 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER Respondent Hohn Industries, Inc., Batavia, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively polling its employees concerning their desire for union representation. (b) 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) Recognize and, on request, bargain in good faith with Sheet Metal Workers' International Association Local Union No. 71 as the exclusive collective-bargain- ing representative of the employees in the appropriate unit regarding rates of pay, wages, hours of employment 51f 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 the them shall be deemed waived for all purposes. and other terms and conditions of employment for- the employees in that unit and, if an understanding is reached, reduce the agreement to writing and sign it. The appropriate unit is: All full-time and regular part-time employees nor- mally employed in the manufacture of the Hirsch- man-Pohle line of rooftop ventilators and employed by the Respondent at its Batavia Industrial Park, Batavia, New York facility, excluding all other em- ployees, office clerical employees, guards and super- visors as defined in the Act. (b) Post at its Batavia, New York facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."