Howard M. Howes, Inc.

HOWARD M. HOWES, INC. 967 Howard M. Howes, Inc. and United Steelworkers of America, Local 14094, AFL-CIO-CLC. Case 9-CA-24194 August 25, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFF On November 3, 1987, Administrative Law Judge Martin J. Linsky issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The issues in this case are (1) whether the Re- spondent unlawfully polled its employees about their continued support for the Union and (2) whether, following its poll, the Respondent unlaw- fully withdrew recognition from and refused to bargain with the Union. In 1972, the Respondent recognized the Union as the exclusive collective-bargaining representative for the Respondent's drivers, mechanics, and dis- patchers. The most recent collective-bargaining agreement between the parties was for the period May 23, 1984, through May 23, 1987. At the time of the material events there were five employees in the bargaining unit-three mechanics and two spot- ters. On March 13, 1987,1 the Union notified the Re- spondent in writing that it wanted to begin negotia- tions for a new collective-bargaining agreement to replace the agreement due to expire on May 23. For asserted reasons discussed more fully below, the Respondent's vice president, Howard M. Howes, decided to conduct a poll of the employees in the unit to determine whether they still wanted to be represented by the Union . The Respondent conducted such a poll on March 21. All five em- ployees in the unit voted "no" to the question of whether they wished to be represented by the Union. On March 30, the Respondent notified the Union, in writing, that it was withdrawing recogni- tion of the Union, effective on expiration of the collective-bargaining agreement on May 23. The Respondent honored the terms and conditions of the collective-bargaining agreement until it expired, but refused to negotiate a successor collective-bar- gaining agreement with the Union. I All dates are 1987 unless otherwise stated. The complaint alleges that the Respondent acted unlawfully, in violation of Section 8(a)(5) and (1) of the Act, by withdrawing recognition from, and thereafter refusing to bargain with, the Union. The Respondent denies that it acted unlawfully as al- leged, and asserts that at the time it withdrew its recognition of the Union, the Respondent knew, based on the results of the poll, that each of the five employees in the unit had expressed a desire not to be represented by the Union. The Respond- ent further asserts that at the time it polled its em- ployees about their desire to be represented by the Union, the Respondent had a good-faith doubt about the Union's majority status, based on objec- tive evidence existing prior to the poll. The judge found merit in the Respondent's de- fense. More specifically, applying the Board's es- tablished standard for determining whether an em- ployer may lawfully conduct such a poll, the judge found that the Respondent had a reasonable doubt, based on objective considerations, that the incum- bent Union continued to have the support of a ma- jority of the employees it represents,2 and was therefore privileged to conduct the poll and to rely on its results in withdrawing recognition from the Union. For the reasons discussed below, we dis- agree with the judge. The judge found that the cumulative effect of eight factors, which assertedly prompted the Re- spondent to conduct the poll, were such that any reasonable person would doubt the Union's contin- ued majority support. On reviewing these factors, individually and in their cumulative effect, we con- clude that they do not support a reasonable doubt of the Union's majority status. The judge found that the Respondent properly relied on questions asked by unit employee union member Mark Swinehart in late February or early March. According to the Respondent's vice presi- dent, Howard M. Howes, he mentioned to Swine- hart, in passing, that the Respondent would soon have to negotiate another collective-bargaining agreement with the Union, and he wondered- aloud-who was going to be representing the Union on a local basis. According to Howes, Swin- s See Thomas Industries, 255 NLRB 646 (1981), enf. denied 687 F.2d 863 (6th Cir. 1982). In denying enforcement of the Board's order in Thomas industries, the Sixth Circuit Court of Appeals rejected the Board's above-stated standard for when an employer may lawfully poll its employees about their continued support for an incumbent union, and held instead that an employer may lawfully conduct such a poll when it has substantial, objective evidence of a loss of union support, even if that evidence is insufficient in itself to justify withdrawal of recognition (i.e., even if that evidence would not, in itself, support a reasonable doubt about the incumbent union's continued majority support). 687 F.2d at 867. The instant case arises in the Sixth Circuit. The judge, noting these cir- cumstances, found that the Respondent's polling was lawful under either the Board's or the Sixth Circuit's standard. 290 NLRB No. 116 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ehart questioned whether there was still a union that was active at that location, and whether a union was necessary at all. Howes testifed that he did not answer Swinehart's questions and that "at that point, I really terminated the conversation . . . any further conversation about any union."3 Contrary to the judge, we find that Swinehart's questions to Howes do not constitute objective evi- dence indicating that a majority of the unit em- ployees no longer wanted to be represented by the Union. First, we find that Swinehart's questions to Howes were, at most, little more than rhetorical questions about the current state and future role of the Union in the Respondent's operation. Second, and in any event, Swinehart's questions certainly did not indicate that he no longer wished to be represented by the Union, but rather that he was concerned about the inactivity of the Union and was questioning, rather than rejecting, the fact of union representation. Howes conceded that this brief encounter with Swinehart was the only specific conversation that he had with any employee about the Union. Swine- hart made no reference, express or implicit, to any other employee. Thus, of the five unit employees in question, Howes spoke to only one of them about the Union, and even that one employee did not in- dicate to Howes that he no longer desired to be represented by the Union. Howes further testified that he overheard "gener- al derogatory remarks and comments that reflected a lack of interest in any representation of the union." However, Howes was only able to provide one example of having overheard any such remark within the year prior to the poll in question. In this regard, Howes testified that: Lloyd Hedges [a unit employee-union member], you know, he might say something about, you know, "we haven't seen any union out here for a long time. The only thing we've really got from this union has been breakfast, once a month", these sorts of comments. Howes also testified that Hedges "bemoaned the fact" that it had been a year or more since the Union had conducted meetings or sent anyone to 3 Swinehart's version of this encounter is generally consistent with Howes' . According to Swinehart: I asked him [i.e., Howes] about the union, just because there hadn't been any representation recently. I was just wondering where we stood with the union . . . and . . . what we could do about, or whatever, to see what was going on. And he said that we would just sort of have to wait, and see what happens . . . not really a definite reply. . . . Since there hadn't been any, really, union meetings, or anything, I just asked him how we stood with the union, or what was being done, and whether it was really, you know, necessary to have a union. According to Swinehart, Howes did not respond to these questions. visit the Respondent's plant. According to Howes, those sorts of general comments from Hedges were common, "it was just common knowledge." Also in this context, Swinehart testified that while he could not recall precisely what comments Hedges made about the Union in Howes' presence:4 "[I]t was, you know, just comments as far as, that we should, you know, something should be done, you know, to decide what to do with the union, as far as whether to keep it, or to get rid of it, you know, either way, just . . . in general that something should be done, to get it straightened out. . . . Just, you know, whether to-if we're going to have a union, lets get a representative, and, you know, have meetings regular and all that, or, you know, just to get rid of it altogether. We find that Hedges'- remarks, overheard by Howes, are no more indicative of a loss of majority support for the Union than were Swinehart's ques- tions, posed directly to Howes. First, Howes was able to recall overhearing only two specific re- marks by Hedges: (1) that Hedges had not "seen any union out here for a long time" and (2) "the only thing we've really got from this union has been breakfast, once a month." These remarks by Hedges do not constitute objective evidence indi- cating that a majority of the unit employees no longer wanted to be represented by the Union. At most, these remarks by Hedges could not reason- ably be construed by Howes as anything more than one employee's oblique, tongue-in-cheek expres- sions of dissatisfaction with the recent performance of the Union. As with Swinehart's questions, Hedges' remarks did not indicate that he or any other unit employee no longer wished to be repre- sented by the Union. Second, these remarks by Hedges are the only arguably disparaging remarks by an employee about the Union's performance that Howes could specifically recount at the hear- ing. (As seen, Swinehart's questions to Howes did not expressly or implicitly disparage the Union, much less demonstrate a desire to be rid of the Union.) Additionally, beyond Hedges' remarks, Howes could only testify vaguely, generally, and without attribution that he had overheard "general derogatory remarks and comments that reflected a lack of interest in any representation of the union." We find that such unsupported, summary testimony provides no probative, material support for the Re- spondent's assertion that it had a reasonable doubt, based on objective considerations, that the Union 4 Hedges did not testify. HOWARD M. HOWES, INC. no longer had the support of a majority of the unit employees. s The Respondent also relied on Howes ' knowl- edge, through his unsolicited receipt of internal union correspondence, that none of the current unit members wanted to serve as local officers and that the local had recently been placed in administrator- ship by the parent union, United Steelworkers of America. 6 The record shows that no unit employee had served as a union officer or designated himself as a local union spokesman since April 1986. In late February or early March 1987, Don Baker, a former unit employee and former union recording secretary, sent to Howes several pieces of corre- spondence Baker had received in late 1986 or early 1987 from Steelworkers International headquarters and the Ohio AFL-CIO, in his former capacity as union recording secretary . Baker requested that Howes notify the International that Baker was no longer an employee or union officer and that the International should stop sending such correspond- ence to Baker. The correspondence in question, which Howes read, consisted of, inter alia: (1) A December 9, 1986 letter from the International president to Baker, advising him that in order "to assure the performance of the collective bargaining agreements or other duties of the bargaining repre- sentative," Local 14094 (i.e., the Union) was being placed under an administrator, Robert Andrews, and all the local officers were relieved of their duties.? (2) A January 30 letter from the Interna- tional to Baker, and four other individuals ad- dressed as union members, enclosing a copy of a report of the International Commission, which stated that Andrews had explained to the commis- sion that "the membership of the local had de- clined to four members and that there was decided lack of interest in serving as an officer" and that "the lack of interest on the part of the remaining members is such that there is no objection to the imposition of administratorship." The report rec- ommended that the administratorship of the Union be continued and that "serious consideration be given to the possibility of merging with a more active local, as it is unlikely that this unit will get much larger in the foreseeable future ." (3) A Feb- ruary 25 letter from the International to Baker, ad- vising him that the International executive board ° Indeed, Swinehart's hesitant, almost tortured testimony, set out above, about what remarks Hedges might have made in Howes' presence not only fails to support the Respondent 's contention but actually sup- ports the notion that continued representation by the Union was still a decidedly open question. ° It appears from the record that the Union in question , Steelworkers Local 14094, the Charging Party, represents only the five-member unit involved in this case. 7 Baker had not served as recording secretary since early 1985, and the last union officer had quit in April 1986. 969 had adopted the above-described report and recom- mendations. (4) Two form letters, January 13 and February 5, from the Ohio AFL-CIO to "All Top Officers" (including, presumably, Baker, who re- ceived these letters), advising them that their local union had not paid per capita taxes (45 cents per member per month) to the Ohio AFL-CIO for 6 months or more. We find, contrary to the judge, that the above union correspondence does not constitute an objec- tive basis to support a reasonable doubt about the Union's continued majority status . First, there is no indication that any of the current unit members was even aware of the administratorship and per capita tax matters discussed in this correspondence. Second, even if they were aware of these matters, mere reluctance or unwillingness of any unit em- ployees to seek out or accept union office is not an indication that a majority of employees no longer wish to be represented by a union. As the judge himself stated, "employees could have genuine desire to be represented by a Union but no interest whatsoever in being an officer or steward." Third, the correspondence asserts that four of the employ- ees were union members, a clear majority of the five unit employees. The Respondent also relied on the fact that only two of the five unit members had authorized dues checkoff. However, the failure of a majority of the unit employees to authorize dues checkoff is not in- dicative that a majority of the employees no longer want to be represented by the Union. First, the col- lective-bargaining agreement makes it clear that dues-checkoff authorization was entirely voluntary on the part of the employees. Second, and in any event, it is well settled that failure of employees to authorize dues checkoff does not indicate opposi- tion to, or loss of support for continued representa- tion by, the union in question.8 The Respondent also relied on the Union's ap- parent inactivity, as purportedly evidenced to Howes by the questions and remarks of Swinehart and Hedges, respectively, as set out above; the fact that the Union had not filed any grievances in over a year (since . January 1986); and the fact that Howes had not seen or heard from any union offi- cial in approximately 8 months (since July 1986). Contrary to the judge, we find that the above facts do not support the Respondent's asserted rea- sonable doubt about the Union's continued majori- ty status. First, it is well settled that an absence of grievance activity, or even a union's general inac- tivity, vis-a-vis, an employer, is not an indication that a majority of the unit employees no longer 8 Atlanta Hilton & Towers, 278 NLRB 474 ( 1986). 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wish to be represented by their union .9 Second, under the particular circumstances of this case, which, as will be discussed below, were well known to and understood by Howes, the absence of grievance activity from early 1986 was not un- usual, was reasonably foreseeable , and, in any event, was not indicative of a loss of support for the Union among the five unit employees in March 1987. The Respondent had recognized the Union in 1972 as the representative of the Respondent 's driv- ers, mechanics, and dispatchers. But beginning in September 1985 the Respondent's approximately 20 driver employees began to convert to independent contractor status , no longer employed by the Re- spondent. By March 1986, this conversion was es- sentially complete, and what had been a 25-em- ployee unit composed mostly of drivers had become a 5 -employee unit comprised 3 mechanics and 2 spotters . When the drivers had been unit em- ployees, prior to 1986, they had been the principal source of grievances . Thus, according to Howes, he received 10 or 11 grievances from the Union during the 3 years prior to the conversion of the drivers to independent contractor status, and "most" of those grievances were filed by the driv- ers. Howes conceded that he did not have "too much trouble" from the mechanics and spotters re- maining in the unit. Indeed, according to Howes, "I really didn't have too much trouble from any- body . . . no, I didn't. I didn't [have] many griev- ances, and we had a good relationship ." Thus, by Howes' own account, he had enjoyed a good rela- tionship with his employees ; the Union had a histo- ry of not filing many grievances ; most of the griev- ances that were filed were filed by the drivers; these drivers left the unit in late 1985 and early 1986; and Howes particularly did not have "too much trouble" from the five employees remaining in the unit-the mechanics and spotters. Under these circumstances, we find that Howes could not reasonably construe the absence of grievances since the drivers left the unit as an indication that a ma- jority of the five mechanics and spotters remaining in the unit no longer wished to be represented by the Union. Indeed , as the judge himself states in the attached decision , "Some of the factors were ambiguous, e.g., no grievances could mean the members simply have no problems and that the Re- spondent was complying with the collective bar- e See Roman Iron Works, 282 NLRB 725 (1987), Cowles Publishing Co. NLRB 903 (1986), Royal Vending Services, 275 NLRB 1222 (1985) See generally JVLRB v Flex Plastics, 726 F 2d 272 (6th Cir 1984) (an employ- er must consider a union's inaction from all of the circumstances before entertaining good-faith doubts of majonty status) As seen in the follow- ing discussion, the Respondent did not reasonably assess the Union's inac- tivity in light of all the circumstances gaining agreement and not reflect lack of interest in the Union." For this same reason, we do not find that the failure of the Union to contact Howes during the 8 months between the resolution of the last grievance in July 1986 and the Union's March 1987 notifica- tion to the Respondent that it wanted to begin ne- gotiations for a new collective-bargaining agree- ment to be an objective consideration on which the Respondent could base a reasonable doubt that the Union continued to have the support of a majority of the unit employees. Quite simply, the Union may not have felt any need to speak with Howes during these months. Finally, the Respondent relied on the fact that for more than a year prior to the March 1987 poll in question Howes had not seen any union postings on the employee bulletin board. There is a bulletin board in the drivers' room, which is used for both company and union postings. The Union had regu- larly posted notices of union meetings, but Howes had not seen any such notices posted since about March 1986. However, it was in March 1986 that the drivers completed their conversion from their former status as unit employees, represented by the Union, to their current status as independent con- tractors, no longer represented by the Union. Thus, the absence of union postings on the drivers' room bulletin board is most reasonably explained by the fact that union notices ceased being posted there about the same time that the drivers themselves were ending their relationship with the Union, by becoming independent contractors. Although three mechanics and two spotters were still in the unit and represented by the Union, the drivers' room, according to Howes, was not used by the mechan- ics and spotters: "No, not really. That was basically the drivers' room. The mechanics had their own room, where they have a desk and their files and records." (Emphasis added.) The mechanics' room, located about 25 feet from the drivers' room, did not have a bulletin board. i ° Under all these cir- cumstances, we find that there was no reasonable grounds for Howes to construe the absence of union postings on the bulletin board in the inde- pendent contractor drivers' room as an indication that a majority of the five mechanics and spot- ters-who had their own room, albeit without a bulletin board-no longer wanted to be represented by the Union. In accordance with the above analysis, we find that none of the factors relied on by the Respond- ent in support of its asserted reasonable doubt 10 The mechanics and spotters were nevertheless regularly and fre- quently in the driveis' room, picking up and leaving off reports HOWARD M . HOWES, INC. about the Union's continued majority status consti- tutes in itself a sufficient objective consideration to support such a doubt. Nor do we find that these same individually insufficient factors, even when considered cumulatively, constitute sufficient ob- jective considerations to support such a doubt.' 1 Thus, we conclude that the Respondent, lacking at the time reasonable doubt about the Union's con- tinued majority status, acted unlawfully, in viola- tion of Section 8(a)(1) of the Act, in conducting a poll of its employees to determine whether a ma- jority of them still wanted to be represented by the Union. Having found that the poll was unlawful, we find that the Respondent was therefore not en- titled to rely on the results of that poll in deciding to withdraw recognition from the Union. We fur- ther find that the Respondent was not otherwise entitled to withdraw recognition from the Union, and we conclude, therefore, that the Respondent's withdrawal of recognition from and refusal to bar- gain with the Union was also unlawful, in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Howard M. Howes, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, United Steelworkers of America, Local 14094, AFL-CIO-CLC is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. At all material times the Union has been the designated and recognized exclusive collective-bar- gaining representative of the Respondent's drivers, mechanics, and dispatchers. 4. By polling its employees to determine whether a majority of them still wanted to be represented by the Union, the Respondent violated Section 8(a)(1) of the Act. 5. By withdrawing recognition from and refusing to bargain with the Union, the Respondent violated Section 8(a)(5) and (1) of the Act. 6. The above violations of the Act are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. " In making these findings, we are, of course, applying the Board's well-established standard for when an employer may lawfully poll its em- ployees to determine if a majority of those employees still wish to be rep- resented by an incumbent union. As discussed in fn. 2 above, however, we are mindful that the case arises in the Sixth Circuit Court of Appeals, and that the court applies a different standard for determining whether an employer has acted lawfully in conducting such a poll. More specifically, the Sixth Circuit has held that an employer may poll its employees to determine their union sentiment if it has substantial , objective evidence of a loss of union support, even if that evidence is insufficient in itself to justify withdrawal of recognition. Thomas Industries Y. NLRB, 687 F.2d 863, 867 (6th Cir. 1982). In our view, and as fully discussed above, we do not find that the evidence proffered by the Respondent constitutes "sub- stantial, objective evidence of a loss of union support." 971 REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.12 ORDER The National Labor Relations Board orders that the Respondent, Howard M. Howes, Inc., Balti- more, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Polling its employees about whether they want to continue to be represented by the Union when at the time of polling the Respondent does not have a reasonable doubt, based on objective considerations, that a majority of the employees want to continue to be represented by the Union. (b) Withdrawing recognition from and refusing to bargain with the Union at a time when either the Union has not actually lost the support of a ma- jority of the employees in the bargaining unit or the Respondent does not have a reasonable doubt, based on objective considerations, that a majority of the employees want to continue to be represent- ed by the Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request of the Union, recognize and bar- gain with the Union as the designated and recog- nized exclusive collective-bargaining representative of the Respondent's drivers, mechanics, and dis- patchers. (b) Post at its facility copies of the attached notice marked "Appendix." 13 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps i s The General Counsel has requested that the Order include a visits- tonal clause. Under the circumstances of this case, we find it unnecessary to include such a clause. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 13 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." 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated 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 poll our employees about whether they want to continue to be represented by the Union unless we have a reasonable doubt, based on objective considerations, that a majority of our em- ployees no longer want to be represented by the Union. WE WILL NOT withdraw recognition from or refuse to bargain with the Union at a time when either the Union has the support of a majority of the employees in the bargaining unit or we do not have a reasonable doubt, based on objective con- siderations, that a majority of the employees want to continue to be represented by the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, on request, recognize and bargain with the Union as the designated and recognized exclusive collective-bargaining representative of our drivers, mechanics, and dispatchers. HOWARD M. HOWES, INC. Carol L Shore, Esq., for the General Counsel. Catherine Adams, Esq., of Columbus, Ohio, for the Re- spondent. Robert Andrews, of Columbus, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On 4 April 1987, a charge was filed by United Steelworkers of America, Local 14094, AFL-CIO-CLC, the Union or the Charging Party, against Howard M. Howes, Inc., Respondent. On 20 May 1987, the National Labor Relations Board, by the Acting Regional Director for Region 9, issued a complaint that alleges that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) when it withdrew recognition from the Union and refused to negotiate with the Union concerning a succes- sor collective-bargaining agreement . Respondent filed an answer in which it admitted that it withdrew recognition from the Union and refused to negotiate with the Union but denied that it violated the Act in any way because, it claims, it had a good-faith doubt of the Union's majority support that caused it to conduct a lawful poll that showed no support at all for continued union representa- tion by the member of the bargaining unit. A hearing was held in Columbia, Ohio, on 8 July 1987. On the entire record in this case, to include posthear- ing briefs submitted by the General Counsel and Re- spondent and on my observation of the demeanor of the witnesses, I make the following FINDING OF FACT I JURISDICTION Respondent Howard M. Howes, Inc. is, and has been at all times material, an Ohio corporation with an office and place of business in Baltimore , Ohio, where it is en- gaged as a trucking contractor involved in the transpor- tation of freight. Respondent admits, and I find, that it is now, and has been at all times material , an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find , that United Steelwork- ers of America, Local 14094, AFL-CIO-CLC is now, and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues Respondent admits that in a letter to the Union dated 30 March 1987, it withdrew recognition from the Union and refused to bargain with the Union regarding a suc- cessor collective-bargaining agreement to replace the one due to expire 23 May 1987. The Union had previously sent a letter to Respondent dated 13 March 1987 request- ing bargaining regarding a successor agreement to the one due to expire 23 May 1987. Respondent claims that it had a reasonable good-faith doubt as to the continued majority status of the Union among the bargaining unit members and conducted a HOWARD M. HOWES, INC. 973 lawful poll in which all five unit members said they did not wish to be represented by the Union. Because it is conceded by the General Counsel that the poll was conducted in accordance with the standards enunicated in Strucksnes Construction Co., 165 NLRB 1062 (1967), and because the results of the poll were five to zero against continued representation by the Union, the only issue is whether Respondent could lawfully con- duct the poll. In other words, did Respondent, when it conducted the poll on 21 March 1987, possess sufficient objective evidence to doubt in good faith the Union's majority support. If so, the complaint should be dis- missed. If not, Respondent should be ordered to recog- nize the Union and bargain with it in good faith. B. Background and Discussion Since approximately 1972 Respondent has recognized the Union as the exclusive bargaining representative for its drivers, mechanics, and dispatchers. Respondent and the Union had entered into a number of collective-bar- gaining agreements, the most recent of which was effec- tive by its terms for the period 23 May 1984 through 23 May 1987. Beginning in September 1985 and because of economic difficulties Respondent began to restructure its work force. Its drivers went from being employee drivers who drove Respondent's trucks to independent contractors, who were not employees of Respondent and who owned and drove their own trucks . By March 1986 the net result of this restructuring, which was accomplished by attrition and with apparent union approval, was that the number of employees in the bargaining unit represented by the Union declined from approximately 25 employees, the vast majority of which were drivers, to 5 employees. The five employees remaining in the unit consisted of three mechanics and two spotters. On 13 March 1987 the Union notified Respondent in writing of its desire to commence negotiations for a new collective-bargaining agreement to replace the one due to expire on 23 May 1987 . At this time there were five employees, i.e., three mechanics and two spotters, in the unit. The mechanics and their dates of hire were Mark Swinehart (6 April 1982), Todd Bader (3 March 1986), and Tom Morris (15 August 1986). The spotters and their dates of hire were Lloyd Hedges (6 July 1963) and Don Young (1 July 1986). Howard M. Howes, Respondent's vice president and the person in charge of labor management matters for Respondent, decided to conduct a poll of the employees in the unit to see if they still wished to be represented by the Union. His reasons for conducting the poll were as follows: 1. Although the collective-bargaining agreement called for mandatory dues checkoff that would be activated when the Union submitted a written document from the employee authorizing dues checkoff to Respondent, only two of the five members of the unit, i.e., Lloyd Hedges and Mark Swinehart, had dues checked off. 2. None of the five employees in the bargaining unit was either a union officer or designated as a steward. 3. No grievances had been filed since January 1986. 4. For more than a year prior to the March 1987 poll Howes had not seen any union postings on the employee bulletin board. 5. With the exception of an arbitration hearing in July 1986 growing out of a grievance filed in January 1986 Howes had not seen or heard from Robert Andrews, the Union's business representative or any other union offi- cial. 6. In late February or early March 1987 Howes com- mented to employees Mark Swinehart that negotiations for a new contract would be coming up and he (Howes) wondered who would be representing the Union and Swinehart, according to Howes "questioned whether or not there was still a union that was active at the location, and whether or not a union was necessary at all,"' 7. On a number of occasions for about a year prior to March 1987 Howes heard comments from longtime em- ployee Lloyd Hedges to the effect that the employees had not seen the Union at the workplace for a long time and the only thing the employees really got from the Union had been breakfast-an apparent reference to the fact that breakfast would be served at the union meetings that were held in the mornings-and, further, Hedges told Howes that the Union did not have meetings any more. 8. In late February or early March 1987 Don Baker, who formerly had been an employee truckdriver for Re- spondent and who was now an independent contractor and no longer in the unit, came to see Howes. Baker, who had been recording secretary for the Union when he was an employee, voluntarily gave a pile of mail to Howes, which mail Baker had received from the Union, Baker gave it to Howes because Baker had no interest in it because he was no longer a member, much less an offi- cer, of the Union. Howes looked at this mail matter that disclosed that the members of the unit had so little inter- est in serving in union positions that the local had been placed in administratorship and Robert Andrews named as administrator. Based on the above Howes concluded that Hedges and Swinehart, the only employees in the unit who were union members and who had their dues checked off, had little interest in continued representation by the Union, and that none of the remaining three members of the unit, i.e., Young, Bader, or Morris had any interest at all in the Union because they were not even members. Howes consulted legal counsel and was advised how to conduct a poll of his employees to determine if they wished to continue to be represented by the Union. Counsel's instructions included written instructions, which contained the suggestion that the Union be con- tacted and offered the opportunity to be present at the polling. Howes did not call Robert Andrews , union staff representative, however, until the day before the poll and Andrews was not able to be present due to a prior engagement. There is no evidence that Andrews contact- ed any of the employees in the unit to talk to them about the poll although he was obviously at liberty to do so 1 Employee Swinehart testified in Respondent's case and corroborated Howes' testimony that Swinehart asked Howes if having a union was necessary. 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nor is there any evidence that Andrews sought to have the poll delayed until he was able to be present. The em- ployees were told to report for a meeting on 21 March 1987, they did so, and were told for the first time that a poll was to be conducted. A local attorney, Bill Hayes, conducted the poll that was to be a secret written ballot. All five employees in the unit voted "no" to the question "Do you wish to be represented by the United Steel- workers of America?" Thereafter, Respondent withdrew recognition from the Union effective 23 May 1987 when the collective-bargaining agreement expired. Respondent honored the terms and conditions of the contract until it expired on 23 May 1987 but refused to negotiate a suc- cessor collective-bargaining agreement. It is my conclusion that based on all the evidence available to Respondent that Respondent had an objec- tive basis for doubting the Union's majority status such that it was authorized to conduct the poll. Thomas Indus- tries, 255 NLRB 646, 647 (1981), enf. granted in part and denied in part 687 F.2d 863 (6th Cir. 1982). Any poll would be required to be conducted in accordance with the standards enunciated in the case of Strucksnes Con- struction Co., supra.2 The cumulative effect of the eight factors noted above, which prompted Respondent to conduct the poll, were such that any reasonable person would doubt the Union's continued majority support. The only two members of the Union, Hedges and Swinehart, criticized the Union and Swinehart questioned the need for the Union and al- though neither circulated a petition to decertify the Union it was plainly apparent that at least Swinehart did not support the Union. None of the other three employ- ees in the unit-Bader, Morris, or Young-were even members of the Union. None of the five were officers. There was no steward. There was no union presence and had not been for over a year. It would appear to a rea- sonable person that the employees were not interested in the Union and vice versa. When the Union was advised that Respondent was going to conduct the poll it did not even attempt to persuade Respondent to postpone the poll. Some of the factors were ambiguous, e.g., no griev- ances could mean the members simply have no problems and that Respondent was complying with the collective- bargaining agreement and did not reflect lack of interest in the Union. Further, employees could have a genuine desire to be represented by a Union but no interest what- soever in being an officer or steward. But the cumulative effect of all the factors clearly establishes a good-faith doubt of continued majority support. A poll is justified only if the employer has an objective basis for doubting in good faith the Union's majority status. The Board in Thomas Industries, supra, took the position that an employer must set forth objective evi- dence establishing that over 50 percent of the affected 2 Absent unusual circumstances, the polling of employees by an em- ployer will be violative of Sec 8(a)(1) of the Act unless the following safeguards are observed ( 1) the purpose of the poll is to determine the truth of a union's claim of majonty, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere employees have rejected the incumbent union as their representative before the employer may take a poll. The Sixth Circuit, in enforcing in part and rejecting in part, the Board's decision in Thomas Industries, supra, adopted a different test and held that "an employer may poll its employees to determine their union sentiment if it has substantial, objective evidence of a loss of union support, even if that evidence is insufficient in itself to justify withdrawal." Thomas Industries v. NLRB, 687 F.2d 863, 867 (6th Cir 1982) Under either test I conclude that Re- spondent in this case could conduct a poll.3 Swinehart's comments to Howes and the failure of Bader, Morris, and Young to even join the Union reflect lack of interest in union representation by four of the five members or 80 percent of the unit and Hedges, the fifth and last member of the unit, was critical of the Union in numer- ous comments to Howes over a period of a year.4 The combination of this and the other factors cited above permitted Respondent, in my opinion, to conduct the poll. I note, however, as did the Sixth Circuit in Thomas In- dustries v. NLRB, supra at 869, that the filing of a decer- tification petition would have been a better way to handle the matter of determining continuing union sup- port than conducting a poll. I conclude, in addition, that Respondent acted in good faith when I consider what it did in light of the totality of all the circumstances. Celan- ese Corp. of America, 95 NLRB 664, 673 (1951). Although the results of a poll cannot be used to justify the taking of a poll I note that all five members of the unit voted unanimously against continued union repre- sentation and there was no evidence that any voter in the poll was coerced or tricked into voting "no" when he really wanted to vote "yes" regarding continued repre- sentation. Lastly, the unit consists of only five employees and the Union is obviously at liberty to conduct an organizing campaign among these employees. Because this is a very small unit it does not appear that an organizing campaign will be too great an exercise if the employees change their mind and want representation. CONCLUSIONS OF LAW 1. Howard M. Howes, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, Local 14094, AFL-CIO-CLC is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] 8 I note that Respondent, an Ohio corporation , is within the jursdic- tion of the Sixth Circuit but that does not necessarily mean the Sixth Cir- cuit would handle this case if the matter goes to the court of appeals See Arvin Industries, 285 NLRB 753 (1987). * Although new employees are ordinarily presumed to support an in- cumbent union in the same proportion as their predecessors (see Cutter Supermarket, 220 NLRB 507 (1975)), in the instant case the three new employees had nothing whatsoever to do with the Union