Sterling Processing Corp.

208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sterling Processing Corporation and Local 424, United Food And Commercial Workers Union Case 5-CA-14592 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On June 9 1983 Administrative Law Judge Joel A Harmatz issued the attached decision The Re spondent filed exceptions and a supporting brief and the General Counsel and the Charging Party filed answering briefs 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 1 and conclusions only to the extent consistent with this Decision and Order The essential facts as credited by the judge are as follows the Respondent is a poultry dressing fa cility in Oakland Maryland The plant opened in 1957 and since 1958 the employees have been rep resented jointly by Local 424 United Food and Commercial Workers Union (Local 424) and Local Union No 453 affiliated with the International Brotherhood of Teamsters Chauffeurs Warehouse men and Helpers of America AFL-CIO (Local 453) 2 In 1969 the present operators of the plant acquired ownership and the existing collective bar gaining relationship continued without interruption The most recent collective bargaining agreement was effective from March 1 1979 to March 2 1982 The collective bargaining agreement provid ed inter alia that the agreement would remain in effect from year to year unless either party gave written notice of termination at least 60 days prior to March 1 1982 On January 21 1981 the Respondent closed its facility due to economic conditions and notified the Unions that Sterling Processing Corporation will be closed as of January 22 1981 until further i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judges 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings We correct the following inadvertent errors in the judge s decision The judge states the facility opened in 1952 and that the employees have been represented by the Unions since that time Actually the facility opened in 1957 and the Unions were recognized in 1958 2 Local 424 represented the production and maintenance employees and Local 453 represented truckdrivers and certain warehouse and ship ping employees in the combined unit notice At the time of closing the bargaining unit consisted of 185 employees Between the time of the closedown and the re opening of the facility on August 19 1982 the Re spondent s vice president and general manager Gilman Sylvester examined various options to resume production at Sterling on a sound economic basis During this same period of time there was substantial contact between Sylvester and repre sentatives of the Unions Thus shortly after the closedown Sylvester informed Edward J Man ning Local 424 s business agent that he would at tempt to arrange a deal that would enable the plant to reopen as soon as possible Thereafter Manning telephoned Sylvester several times and met with Sylvester on March 5 June 25 and September 24 1981 to inquire whether any progress had been made on reopening the facility As a result of infor mation from a former employee on June 16 1982 Manning and William Peterson secretary treasurer of Local 424 visited Sylvester indicating they had heard the plant was going to reopen Sylvester would not confirm this report and indicated he still had some irons in the fire Manning then stated that he had heard that the Respondent planned to operate the plant on a nonunion basis Sylvester stated that Manning did not hear this from Sylves ter but he observed (before any employees were hired) that 70 percent of the employees did not want a union In response Manning insisted that a contract was in effect and that employees should be recalled by seniority Sylvester declined to take any position and stated that he would get in touch with Local 424 before taking any action On August 3 1982 Manning and Local 424 s president Edward Steinmetz located Sylvester at his home They told Sylvester that they heard the plant was scheduled to open Sylvester acknowl edged that this was true but indicated that it was his position that there was no contract Manning expressed a willingness to sit down and discuss any help Sylvester might need but Sylvester declined The meeting ended by Manning stating that he would do what was necessary to protect the mem bership and urging that employees be recalled in accordance with the provisions of the collective bargaining agreement On August 19 1982 the Re spondent began full scale production at the facility with 92 employees including 79 who had been on the Respondents payroll in January 1981 The em ployees were hired through an arrangement Syl vester developed with the employment division of the Maryland Department of Employment Securi ty Thus anyone who came into the state employ ment office seeking employment could make out an employment application for these positions at Ster 291 NLRB No 30 STERLING PROCESSING CORP 209 Y3 ling For those persons with prior experience in poultry processing the state office set up interviews with the Respondent In addition to a brief individ ual interview with the job applicants Sylvester de livered a prepared statement to groups of potential employees at the orientation sessions Sylvester asked the applicants for their help so the Re spondent could continue to operate He stressed the need for employees willing to work for good wages and limited benefits Sylvester then listed the benefits to the applicants that included a basic wage rate of $4 per hour and a single paid hole day 3 When the Respondent closed its facility in Janu ary 1981 it was a fully integrated poultry producer and processor Thus, it purchased for its own ac count live chickens and then at its facility killed, plucked eviscerated cut packaged stored or im mediately loaded the meat aboard the Respondents own vehicles for delivery to customers The fin fished product was marketed under the Sterling trademark through the Respondents own sales force The Respondent was engaged primarily in the production of broilers 7 to 9 weeks of age weighing about 4 to 5 pounds live The finished product mix consisted of 50 percent whole birds 25 percent knife cut parts (eight pieces) for the general market and 25 percent saw cut (nine pieces) for Kentucky Fried Chicken (KFC) outlets On reopening the Respondent had the same ownership corporate form plant location and tele phone number The Respondents processing is now limited to custom processing of broilers heavy fowl and roasting chickens (5 to 7 pounds) all owned by and processed for an unidentified contractor The Respondent no longer sells to KFC thus it does not saw cut chickens and does not use KFC equipment The old KFC area is now occupied by an expansive Cry 0 Vac process 4 The ultimate responsibility for management of the Respondent remains in Sylvester the general man ager and former Plant Superintendent Karol Schroyer The personnel manager Jerry Sanders has also remained in the same capacity The labor 8 The wages and benefits offered by Sylvester differed substantially from those under the terms of the collective bargaining agreement The basic wage rate was lower than the one in the collective bargaining agreement and the agreement had eight paid holidays protective assur ances of seniority premium pay for hours worked in excess of eight grievance arbitration funeral pay and health and welfare protection 4 Cry 0 Vac is a partially automated packaging process that permits whole poultry to be sold either fresh or frozen It utilizes whole chickens evaluated as meeting grade A standards and entails some 40 to 60 per cent of the Respondents entire output The balance of the chickens are shipped after being hand cut into parts Some years prior to the close down Sterling for a brief period maintained a Cry 0 Vac operation for the processing of turkeys The most recent collective bargaining agree ment includes the classification Cry 0 Vac operator Seventeen to twenty employees work on the Cry 0 Vac line intense segment of the Respondents facility is basi cally unaltered except for the addition of the Cry O Vac line 5 Thus an employee testified without contradiction that the basic procedure for process ing these chickens has remained the same and that the employee jobs have remained the same On cross examination Sylvester admitted that the Re spondent still processes live chickens and that there was no formal training (or retraining) of the em ployees on reopening He also admitted that al though the sales and purchasing departments had been eliminated when the Respondent reopened those departments employees had never been in the bargaining unit Shortly after the Respondent was informed that a complaint was to issue on the pending unfair labor practice charge in this case Bonnie Chap man an employee circulated and urged employees to sign a petition that indicated that they preferred a nonunion shop 6 About 65 employees signed the petition that was circulated on October 14 1982 On October 18 the Respondent conducted a poll of the employees that resulted in a vote of 69 against and 23 for union representation 7 The General Counsel and the Charging Party argue that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the joint representative and by unilaterally abrogating the terms set forth in the collective bargaining agreement8 while unilaterally setting its own terms on reopening The Respondent contends inter alia that there was and is no obligation to recognize and bargain with the Unions because the plant re opened after a lengthy hiatus and the reopening was accompanied by substantial changes in oper ation The first issue we address is whether the Re spondent had an obligation to bargain with the Unions before it modified the preexisting wages and working conditions prior to reopening its facil b At the hearing Sylvester admitted that the employees who work on the Cry 0 Vac line receive the same wages and benefits and that they received no prior special training to operate the line 6It is undisputed that all employees who were represented by Local 424 received withdrawal cards from Local 424 in January 1981 when the Respondent closed and that none of these employees paid any dues there after ' The judge incorrectly stated in his decision that the vote was 69 for and 23 against union representation 8 The General Counsel and the Charging Party contended at the hear ing that the collective bargaining agreement remained in effect during the shutdown by operation of the automatic renewal clause in the agreement Based on the Boards decision in Cen Vi Ro Pipe Corp 180 NLRB 344 346-347 (1969) enfd 457 F 2d 775 (9th Cir 1972) the judge found that the agreement lapsed by its terms on March 1 1982 and was not auto matically renewed by the failure of the Respondent to provide 60-day notice during the shutdown No exceptions were filed to this finding As explained below the Cen Vr Ro rationale also applies to the question whether the Respondent was obligated to bargain before setting initial terms 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ity The judge concluded that the Respondent had such an obligation We disagree When the Respondent closed its facility in Janu ary 1981 the employees were discharged Thereaf ter as found by the judge they had no reasonable expectation of being recalled For 19 months the facility remained closed and there were no employ ees Although Sylvester wanted to reopen Sterling Processing at some future point if he could obtain a workable financial arrangement the closedown was certainly indefinite in nature and substantial in du ration The judge found that the Unions presump tion of majority status, as the incumbent represent atives of the Respondents employees continued in spite of the 1 1/2 year closedown In so doing, the judge looked at the composition of the work force at the time the Respondent reopened and conclud ed that because a majority of the work force had been retained to perform essentially the same work for the same employer the 19 month closedown did not refute the presumption of continuing major ity status In this regard, the judge noted that as of the date of the reopening, the Respondent had no objective evidence of employee dissatisfaction with the Unions, that employee choice would not logi cally be affected by the shutdown, and that where a majority of the prior work force has been hired to perform essentially the same work for the same employee, the continuation of the bargaining proc ess should not become a prerogative of manage ment The difficulty with the judge s conclusion is that at the time the Respondent modified the preexisting wages and working conditions there were no em ployees The entire prehiatus work force had been discharged or laid off with no reasonable expecta tion of recall There in fact were no employees for the Unions to represent during the hiatus The Respondents ultimate hiring of a majority of its prehiatus work force is not relevant in determining whether the Respondent is obligated to bargain with the Unions concerning terms and conditions set prior to the hiring of that work force As the Board held in Cen Vi Ro Pipe supra under very similar circumstances a union cannot be the exclu sive bargaining representative prior to the hiring of a representative complement of employees We rec ognize that, in other circumstances the Board has presumed, as did the judge that new employees support the union in the same ratio as old employ ees The Board however implicitly rejected the application of this presumption in Cen Vi Ro Pipe in which it found that after a lengthy hiatus during which there were no employees for the union to represent, the employer violated Section 8(a)(2) and (1) when it recognized the union before hiring a representative complement of the old work force Therefore we dismiss the portion of the complaint that alleges that the Respondent had an obligation to bargain with the Unions when it modified the preexisting wages and working conditions before August 19 1982 We reach a different result with respect to the Respondents obligation to recognize and bargain with the Unions after August 19 1982 In agree ment with the judge we find that as of that date the Respondent s bargaining obligation with the Union revived As found by the judge, the Re spondent had resumed production under the same ownership corporate form and management and was engaged in the same business at the same loca tion with basically the same production process as prior to the shutdown Further the Respondent had in fact rehired substantially the same work force as that in the historic bargaining unit Under these circumstances where the employing entity remains the same after the hiatus as it was before we find that the hiatus, standing alone, does not re lieve the Respondent from its bargaining obliga tions See Food & Commercial Workers Local 152 v NLRB, 768 F 2d 1463 1471-1472 (D C Cir 1985) denying enf 268 NLRB 1483 (1984) 9 Indeed, we agree with the judge that where, as here the identity and location of the employer is unchanged the legal import of any supervening change in cir cumstances to an established bargaining relation ship ought to be assessed in terms of whether or not the employer denied recognition upon objec tive factors furnishing a reasonably based doubt that the union continued to represent a majority ALJD fn 30 1° We further agree with the judge for the reasons set forth by him that the Respond ent failed to establish by objective evidence that it held a good faith doubt of the Unions majority status as of the reopening on August 19 1982 11 or 9 To the extent that the Boards decision is inconsistent with the court s opinion we overrule the Board s decision 10 The Respondents contention that its bargaining obligation should be evaluated under the successorship doctrine approved by the Supreme Court in NLRB Y Burns Security Services 406 U S 272 (1972) is without merit Although we acknowledge that in assessing the Respondents bar gaining obligation we have reviewed factors also relevant under the successorship doctrine the fact remains that the Respondent was the same entity in ownership corporate form management business and production on reopening as it had been prior to the shutdown Thus no logical or legal basis exists for treating the Respondent as a new employ er when it reopened See Food & Commercial Workers Local 152 v NLRB supra We therefore do not decide whether a 19 month hiatus would warrant not imposing a bargaining obligation on an employer that was a different corporate entity from its putative predecessor i i As evidence of its good faith doubt of the Unions majority status the Respondent relies on employee expressions after the reopening of their desire not to be represented by the Unions including the employee petition circulated on October 14 1982 and the poll taken by the Re spondent on October 18 1982 The Respondents reliance is misplaced because as noted supra these expressions occurring after the Respond Continued STERLING PROCESSING CORP that the Union abandoned the unit or failed to make a bargaining demand Accordingly we find that the Respondent violat ed Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Unions as of August 19 1982 THE REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act we shall order it to cease and desist to bargain collectively with the Unions as of August 19 1982, and if an under standing is reached to embody the understanding in a signed agreement In agreement with the judge but for somewhat different reasons we reject the Respondents assertion that the preferred remedy is an election rather than the issuance of a bargaining order because the employees expressed sentiment against the Unions in the petition circulated on Oc tober 14 and in the subsequent secret ballot poll on October 18 1982 Once the Respondent unlawfully refused to recognize and bargain with the Unions on and after August 19 1982 it was not free to rely on subsequent events to assert a doubt as to the Unions majority status Guerdon Industries supra The Board has long held that it would be wholly contrary to the purposes of the Act for this Board to rely upon the fruits of an unfair labor practice to justify a dishonoring of a bargaining ob ligation Montgomery Ward & Co 210 NLRB 717 at 717 (1974) Thus we find a bargaining order is the appropriate remedy in this case ORDER The National Labor Relations Board orders that the Respondent Sterling Processing Corporation Oakland Maryland its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to recognize and bargain collective ly with Local 424 United Food and Commerciial Workers Union and Local Union No 453 affiliated with the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of Amer ica AFL-CIO as the exclusive joint bargaining representative of the employees in the appropriate unit (b) 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 ent s unlawful refusal to recognize and bargain with the Unions were tainted by the Respondents unfair labor practices Fall River Dyeing Corp v NLRB 482 U S 27 51 fn 18 (1987) Guerdon Industries 218 NLRB 658 660-661 (1975) 211 2 Take the following affirmative action neces nary to effectuate the policies of the Act (a) On request recognize and bargain with the Unions as the exclusive representative of the em ployees in the following appropriate unit concern ing terms and conditions of employment and if an understanding is reached embody the understand ing in a signed agreement All employees of the Employer excluding the plant superintendent foremen clerical work ers executives and guards (b) Post at its facility in Oakland Maryland copies of the attached notice marked Appen dix 12 Copies of the notice on forms provided by the Regional Director for Region 5 after being signed by the Respondents authorized representa tive shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees 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 Respondent has taken to comply i 2 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 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 WE WILL NOT refuse to recognize and bargain with Local 424 United Food and Commercial Workers Union and Local Union No 453 affiliated with the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of Amer ica AFL-CIO as the exclusive joint bargaining representative of the employees in the bargaining unit 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 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL on request bargain with the joint rep resentative and put in writing and sign any agree ment reached on terms and conditions of employ ment for our employees in the bargaining unit All employees of the Employer excluding the plant superintendent foremen clerical work ers executive and guards STERLING PROCESSING CORPORATION II THE LABOR ORGANIZATIONS INVOLVED Local 424 United Food and Commercial Workers Union (Local 424) and Local Union No 453 affiliated with the International Brotherhood of Teamsters Chauf feurs Warehousemen and Helpers of Amenca (Team sters Local 453) exist for the purpose of representing em ployees in connection with fixing through negotiation with employers terms and conditions of employment Accordingly it is concluded that they are and have been at all times material labor organizations within the meaning of Section 2(5) of the Act Mark Carissimi Esq for the General Counsel Clifford R Oviatt Jr and Robert Mittendorf Esqs (Cum mings & Lockwood) of Washington D C for the Re spondent Melvin P Stein Esq (Kuhn Engle and Stein) of Pitts burgh Pennsylvania for the Charging Party DECISION STATEMENT OF THE CASE JOEL A HARMATZ Administrative Law Judge This proceeding was heard in Oakland Maryland on January 4 5 and 6 1983 upon an original unfair labor practice charge filed on August 9 1982 and a complaint issued on October 22 1982 which as amended alleged that Respondent violated Section 8(a)(5) and (1) of the Act by (1) refusing to recognize and bargain collectively with the statutory representative of its employees and (2) effecting certain unilateral changes in conditions of em ployment In its duly filed answer Respondent denied that any unfair labor practices were committed Follow ing close of the hearing briefs were filed on behalf of the General Counsel the Charging Party and the Re spondent On consideration of the entire record in this proceed ing including consideration of the posthearing briefs and particularly my opportunity directly to observe the wit nesses while testifying and their demeanor I make the the following FINDINGS OF FACT I JURISDICTION Respondent is a Maryland corporation with a place of business in Oakland Maryland from which it is engaged in the processing of chickens for market on a contract basis Based on a projection of revenues and other as pects of its operations commencing from August 18 1982 Respondent on an annual basis will receive at the facility products goods and services valued in excess of $50 000 from points beyond the State of Maryland and will provide services valued in excess of $50000 to others located outside the State of Maryland The complaint alleges Respondent at the hearing stip ulated and it is concluded that at all times material Re spondent is and has been an employer engaged in coin merce within the meaning of Section 2(2) (6) and (7) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and the Issues This case raises questions concerning whether an em ployer after a 19 month economic shutdown violated Section 8(a)(5) and (1) of the Act by failing to extend recognition to the historic exclusive representative of employees and by unilaterally changing preestablished terms and conditions of work In this regard it appears that Respondent maintains a poultry dressing facility in Oakland Maryland Since the opening of that plant in 1952 production employees have been represented jointly by Local 424 of the Amal gamated Meatcutters and Butcher Workmen of North America AFL-CIO i and Teamsters Local 453 2 In 1969 it appears that present operators of the plant ac quired ownership and the existing collective bargaining relationship was continued without disruption thereafter until the events giving rise to this proceeding The most recent collective bargaining negotiations took place in 1979 Following a 7 week strike which took place in March and April of that year on October 29 1979 a new 3 year collective bargaining agreement was executed That contract was retroactive to March 1 1979 and had a stated expiration date of March 1 1982 During the term of the contract on January 21 1981 Respondent due to economic conditions closed down notifying the Union by letter the next day as follows Sterling Processing Corporation will be closed as of January 22 1981 until further notice At the time the historic bargaining unit consisted of some 185 employees During the period following the closedown Respond ent through Gilman Sylvester its vice president and general manager explored various possibilities with an 1 In June 1979 a merger at the International level was effected be tween the Amalgamated Meatcutters and Butcher Workmen of North America AFL-CIO and the Retail Clerks International Union which re suited in the formation of the United Food and Commercial Workers International Union 2 Teamsters Local 453 and Local 424 had separate interests within the unit Thus truckdrivers and certain warehouse and shipping employees were members of Teamsters Local 453 while Local 424 had within its membership employees in the production and maintenance unit Obvious ly Local 424 represented the predominant group Historically negotia Lions were conducted jointly concerning a master agreement but a Team sters addendum was separately negotiated to cover the latter s member ship base STERLING PROCESSING CORP 213 eye toward resumption of production on sound economic footing On August 19 1982 the plant was reopened and processing operations resumed with 92 employees per forming work which for the most part corresponded to that always performed in the appropriate unit Of that group 79 had been on Respondents payroll in January 1981 3 Prior to the reopening the Unions acting on rumors contacted Respondent on several occasions to express their continuing interest in the employees How ever Respondent declined recognition and failed to adhere to the terms prescribed in the prior collective bargaining agreement instead choosing to present its uni laterally defined employment package to job applicants while clearly expressing that only those willing to accept those terms would be hired Those agreeing to these con ditions began work on August 19 1982 with all contrac tual benefits except wages overtime premiums and holi day eliminated and the latter significantly if not substan tially reduced Later on October 12 1982 Respondents attorney was informed by a representative of the Board s Regional Di rector that a complaint was to issue on the pending unfair labor practice charge in this proceeding 4 Bonnie Chapman an employee shortly thereafter circulated a petition urging employees to sign if they preferred a non union shop Some 65 employees obliged Chapman did not testify and exactly what prompted her to take such a step at that time remains a mystery The petition was cir culated on October 14 1982 only 2 days after the above notification by the Board s Regional Office that a com plaint would issue Subsequently on October 18 1982 Respondent itself conducted a poll of employees Its purpose was made evident in the following expression communicated by Respondent to the employees We think it would be best to double check our con clusion that a majority of our employees do not want the union So today we are going to conduct a secret ballot By a vote of 69 for 23 against representation Respond ent obtained confirmation of its view B Contentions of the Parties The General Counsel and Charging Party in effect contend that the October manifestations by the employ ees were a byproduct of Respondents earlier unfair labor practices They argue that before that time Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the joint representative and by unilaterally ab rogating all conditions of employment set forth in the governing collective bargaining agreement while setting 3 Between August 19 and October 18 1982 the size of the work force expanded to 132 including 90 who were on Respondent s payroll in Jan uary 1981 The work force on August 19 1982 is deemed controlling to the assessment of Respondent s right to abort the historic bargaining rela tionship Those employed on that date constituted a representative com plement of those ultimately hired See Hudson River Aggregates 246 NLRB 192 fn 3 198 fn 15 (1980) 4 See G C Exh 16 This document implies strongly that Respondent and the attorney since October 12 1982 were in consultation concerning this development unilaterally its own terms on reopening Remedially the General Counsel in addition to a conventional bargain ing order urges that the Respondent be ordered retro actively to apply the terms of that contract and to con tinue to apply the contract through its expiration date and afterwards to bargain in good faith to a new agree ment or impasse [and to] make whole the em ployees in the appropriate unit for any losses they have suffered as a result of the unilateral changes instituted by Respondent with interest Respondent on the other hand advances a number of grounds supporting its claim for dismissal of the complaint in its entirety First it is argued that the existence of any obligation to recognize the joint representatives is nonexistent as the reopening of the plant in August 1982 occurred after a lengthy hiatus and was accompanied by substantial changes in operation This it is asserted was linked with inaction or a failure by the joint representative to press its interests in the unit with diligence so as to warrant a conclusion that its status as employee representative during the period prior to the reopening was abandoned In the al ternative Respondent argues that in view of employee manifestations in October 1982 they no longer wish rep resentation by the Unions the instant dispute should be resolved through the conduct of an election rather than an affirmative bargaining order C Concluding Analysis 1 Controlling principles Respondent appears to concede that under established Board policy an exclusive statutory representative even after the benefits of the certification year have lapsed continues to enjoy a rebuttable presumption of continu ing majority support 5 It is also clear that during the term of a valid subsisting collective bargaining agree ment a union s representative status is insulated from challenge and the presumption of majority support is it rebuttable See e g Shamrock Dairy 119 NLRB 998 1002 (1957) and 124 NLRB 494 (1959) enfd 280 F 2d 665 (D C Cir 1960) However when no contract is in effect the status of the statutory representative may be rebutted on a showing of objective considerations evi dencing a reasonably based doubt that the Union contin ues to represent a majority 6 2 Automatic renewal The initial question presented is whether Respondent on reopening of the plant in August 1982 was free to question the representative status of the Unions In this regard the General Counsel and Charging Party contend that at that time the collective bargaining agreement re mained in effect and hence the presumption of majority was irrebuttable It will be recalled that the most recent collective bargaining agreement included a stated expira tion date of March 1 1982 which was several months before the August 1982 reopening However article 13 5 Celanese Corp 95 NLRB 664 672 (1951) 6 NLRB v Laystrom Mfg Co 359 F 2d 799 800 (7th Cir 1966) 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of that agreement entitled TERM OF AGREEMENT also provided as follows This Agreement shall remain in effect from year to year thereafter unless either party gives written notice of termination to the other at least 60 days prior to March 1 1982 or prior to March 1 of any year thereafter No notice of termination was extended by either party thus forming the predicate for the contention that the contract remained in effect and binding on Respondent when the plant reopened in August 1982 Neither party cites authority that provides clear con clusive guidance regarding the effect accorded automatic renewal clauses in such circumstances The General Counsels view is drawn from principles articulated by the Board in implementing its contract bar policy That doctrine is relevant to preelection controversies and bears directly on the question of whether a petition on behalf of a rival labor organization shall give rise to a question concerning representation In such a context an automatic renewal clause has been honored by the Board in concluding that a prior collective bargaining agree ment barred an election Thus in Road Materials 193 NLRB 990 (1971) an in cumbent union was party to a collective bargaining agreement having a term of March 4 1968 to March 4 1971 and from year to year thereafter absent written notice Neither party gave the required notice After the scheduled expiration date on March 9 1971 a rival union filed an RC petition The Board dismissed the peti tion as raising no question concerning representation be cause the contract was automatically renewed prior to the filing 7 That holding together with the established policy of the Board that it will not permit a withdrawal of recog nation at a time when under the Board s contract bar rules it would not entertain a representation petition 8 are the constitutent elements of the argument on which the General Counsel and Charging Party urge a conclu save presumption of continuing majority Such precedent however appears to assume an ongo ing continuous business operation A contrary result has been reached in other circumstances Thus in Sheets & Mackey 92 NLRB 179 (1950) the Board declined to honor extension of a contract pursuant to an automatic renewal clause in circumstances where renewal would have transpired during a shutdown In that case produc tion resumed after a lapse of some 10 months but with different employees The Board directed election on the following grounds Under all the foregoing circumstances including the shutdown for an indefinite period the actual du ration of the shutdown and the resumption of oper ations with new employees because the former em I See also Deluxe Metal Furniture Co 121 NLRB 995 (1958) Moore Drop Forging Co 168 NLRB 984 (1967 ) and Empire Screen Printing 249 NLRB 718 719 (1980) 8 See Hexton Furniture Co 111 NLRB 342 (1955) Westwood Import Co 251 NLRB 1213 1214 (1980) ployees were no longer available and on the basis of the entire record we are of the opinion that we should not give effect to the automatic renewal to find the contract a bar 9 The General Counsel would distinguish Sheets & Mackey on grounds that here unlike in that case the majority of the employees on reopening were formerly employed by the Respondent prior to the shutdown However the materiality of this difference is not entirely clear For under well established authority new em ployees are presumed to support the union in the same ratio as those whom they have replaced See e g Bell wood General Hospital 243 NLRB 88 90 (1979) Accord ingly changes in the employee complement do not alone bear adversely on statutory considerations favoring sta bility in existing bargaining relationships the policy which generated the Board s contract bar rules In any event a more recent holding of the Board further dam pens the efficacy of automatic renewal during plant shut downs Thus in Cen Vi Ro Pipe Corp 180 NLRB 344 (1969) enfd 457 F 2d 775 (9th Cir 1972) the latest of a series of collective bargaining agreements was executed on May 1 1964 with the scheduled expiration date of May 1 1966 subject to annual renewal absent 60 days notice On June 28 1964 the plant was closed The evi dence revealed that although the employer intended to reopen it did not know when and would do so only in the indefinite future when business conditions improved Some four years later in 1968 the plant was reopened Prior to the actual opening of the plant on May 1 1968 the union that had represented employees historically agreed with the employer to update their 1964 agree ment An unfair labor practice complaint charged that this contract was executed prematurely and that the agreement and recognition conferred on the union in the circumstances constituted unlawful assistance In de fense the contention was made that because the requisite notice was absent during the interim between 1964 and 1968 the 1964 contract was automatically renewed on May 1 1966 and again on May 1 1967 and that conse quently the union throughout continued to be the repre sentative of employees at the plant at all times material This contention was rejected and the complaint was upheld on the basis of rationale articulated by the trial examiner as follows The whole trouble with this argument is that on each of these dates the Employer had no employees at Lockeford Any alleged contracts between a union and an employer covering wages hours and working conditions of non existent employees are a nullity From the time of the shutdown in 1964 there is no evidence that there were any employees who had even an unreasonable expectancy of recall It was not even finally decided until 1968 to rebuild and reopen the plant In 1966 and 1967 there was still only a possibility that the plant might reopen in the unforseeable future I find it most unrealistic to conceive that labor contracts covering wages hours 9 See also Decca Records 93 NLRB 819 821 (1951) STERLING PROCESSING CORP and working conditions between unions and an em ployer who had no employees and might never have any kept on renewing themselves The Em ployer was not an employer at Lockeford in 1966 and 1967 The Unions were not the collective bar gaining representative of nonexistent employees The Employer and the Unions could not have had collective bargaining agreements covering the wages hours and working conditions of no employ ees [Id at 346-347 ] Quite obviously this reasoning spurns reliance on wheth er employees ultimately hired were new or a part of the historic unit In enforcing the Board s Order in the above case the court of appeals also reasoned that the hiatus alone foreclosed a continuity of contracts through auto matic renewal Thus the Court stated in 457 F 2d 775 at 776 Respondents argue that the 1968 agreement was merely a reiteration of the 1964 agreement which was still in effect because never officially terminat ed However an automatic renewal clause cannot keep a collective bargaining relationship alive when the employers business has been discontinued in definitely When the plant closed in 1964 the rela tionship between the Company and the Union dis appeared there were no employees for the Union to represent It is concluded that the logic expressed in Cen Vi Ro Pipe Corp supra precludes a finding of automatic re newal Here as there on the date of closure the pros pect of reopening was hoped for by management but de pended on unforseeable contingencies Here on January 21 1981 employees were terminated unconditionally and without firm prospect of rehire As in Cen Vi Ro Pipe Corp it was simply a matter for the indefinite future that business conditions might change and [the employer] might possibly reopen 10 In the circumstances there is no material basis for distinguishing Cen Vi Ro Pipe Corp 11 and as there is no indication that the authority is no longer viable based thereon it is concluded that the governing collective bargaining agreement lapsed by its terms on March 1 1982 and was not automatically re newed by the failure of Respondent to provide the 60 day notice during the shutdown 12 Thus there is no basis for concluding that an agreement was in effect which at the time of reopening precluded Respondent from asserting a doubt of majority 10 180 NLRB 344 346 11 In Cen Vi Ro Pipe Corp supra the employer s ultimate work com plement as in Sheets & Mackey supra, did not include a majority of those working at the time of the closedown See 180 NLRB 344 347 at fn 14 However no reference to this fact is made in the rationale thereof and hence the case is not distinguishable on that ground 12 Cf Frasier v Magic Chef Food Giant Markets 324 F 2d 853 (6th Cir 1963) 3 The defense 215 a The rebuttable presumption As indicated before absent a binding collective bar gaining agreement the presumption of continuing major ity is one that Respondent may refute by objective evi dence I am not entirely certain that the various theories urged on me by Respondent here include a claim that such proof was available on August 19 1982 In any event it is noted that as of that date the record fails to disclose that Respondent possessed evidence reflective of any affirmative unambiguous manifestation on the part of those hired or rehired concerning their personal senti ment on the issue of continued representation 13 An employers claim of good faith doubt must be something more than a self serving assertion 14 Nonetheless although not cited for this purpose in Re spondent s brief Cen Vi Ro Pipe Corp supra in addition to the nullification of automatic renewal also is suscepti ble to interpretation that the presumption of continuing majority is rebutted by a closedown of 4 year duration where at its inception there were no plans for reopen ing in the forseeable future [nor] a reasonable expec tation of reemployment by the laid off employees 180 NLRB at 346 Thus the 8(a)(2) remedy provided there required the employer to cease and desist recognizing the union until certified as majority representative Obvi ously had the presumption of majority survived such relief would have been unjustified as irreconcilable with the employers continuing duty to recognize the incum bent union Thus in Cen Vi Ro Pipe Corp supra by im plication the presumption was nullified solely on the basis of a closedown indefinite in nature and substantial in duration The result is troublesome No other authority or line of reasoning is called to mind which even tends to lend support to such a result on those facts and its soundness seems at odds with established policy in this area Obviously a decision to close for economic reasons is as a matter of employer discretion just as is the assess ment of whether business conditions make resumption of operations economically feasible If such factors have a 13 Respondent in its brief cites a number of alleged facts supporting its view that the unions no longer enjoyed the majority support of Sterl ing s employees in the plant once it opened in August 1982 Those fac tors do not bear repeating here It is sufficient to observe that they were either afterthought unsubstantiated by record proof or limited to em ployee action which fell short of any clear uncoerced repudiation of their choosen representative on August 19 1982 the critical date for determin ing the alleged refusal to bargain 14 NLRB v The Little Rock Downtowner 414 F 2d 1084 1091 (8th Cir 1969) Sylvester testified that in response to union overtures that he abide by the contract he as of August 3 1982 had taken a position that the contract was not in effect When I made an inquiry as to the basis for Sylvester s position in that regard he responded as follows To answer your question Judge I did not feel after a year and a half of being down and people from we will say the first of January or in fact from the time we were closed anybody who would come into the plant would say if we get started again we certainly would not want to have a union This point of view was not shown to have been based on anything beyond assumption There was no other testimony as to the evidence on which Respondent acted in rejecting the Union s requests at times critical to this complaint Note however the explicit proof presented regarding the subsequent expression of employee preference in October 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD relationship to employee sentiment it is difficult to grasp just what that connection might be Does it make sense to conclude that where a majority of the prior work force has been retained to perform essentially the same work for the same employer that despite the absence of any expression on their part continuation of the bargain ing process ought be a prerogative of management) Indeed all else being equal can one assume to the point of rationally founded interference that employee choice would be altered by the duration of a shutdown And if that is so just how long must the hiatus continue before the presumption of majority will be defeated9 No logical reference point is available to aid in resolving that ques tion in this or in any other given case and as formula tion has not been made available by the Board in that regard it is my conclusion that Cen Vi Ro Corp supra should be restricted to its facts Accordingly I am un willing to find that the 1 1/2 year closedown in this case though indefinite from its inception refutes the presume tion of continuing majority in this instance b The remaining defenses Respondent argues that the basic duty to recognize was excused here by interaction of (1) the length of the closedown (2) operational changes in the reopened oper ations and (3) the Unions having abandoned their inter est in continued representation of the employees 1 Abandonment and alleged failure to demand recogni tion The assertion on behalf of the defense that the unions abandoned both their status as a joint bargaining representative of the Sterling employees and any pre sumption to that effect is plainly at odds with the un disputed evidence The interest asserted by the Unions in furtherance of their continued representational interest was made evident to Respondent throughout the shut down Gilman Sylvester Respondents vice president confirms testimony by various union representatives as to direct confrontations with Sylvester concerning a posse ble reopening of the plant and their continued interest in representation between January 21 1981 and August 19 1982 Thus shortly after the closedown Sylvester informed Edward J Manning Local 424 s business agent that the plant had been closed due to adverse economic condi tions and that Sylvester would attempt to arrange a deal which would enable the plant to reopen as soon as possi ble Manning s testimony that he then met with Sylvester at least once monthly inquiring whether there had been any change in status was not denied directly by Sylves ter 15 More specific evidence in the form of the credited testimony of Manning indicates that he participated in face to face contacts with Sylvester on March 5 June 25 and September 24 1981 Despite these meetings and the phone calls after Re spondent decided to reopen it failed to take the initiative 15 Although Sylvester initially testified that he could not recall or had no knowledge of contacts from the union during the period September 24 1981 through January 21 1982 he later noted that he did have tele phone calls during that timeframe from Manning inquiring whether any progress had been made On those occasions according to Sylvester he responded that hopefully something will break that will get us start ed again to inform either Union of its intention in that regard The latter were kept in the dark and forced to rely on rumors concerning activity at the plant In mid June 1982 Local 424 received a report from a former employee to that effect Accordingly on June 16 1982 according to the credited testimony of Manning and William Peterson then secretary treasurer of Teamsters Local 453 they visited Sylvester indicating that they had heard the plant was going to reopen Based upon a composite of the tes timony of Manning and Peterson Sylvester did not con firm that this was so indicating instead that he still had some irons in the fire that nothing had been decided as yet and the possibility still remained that the plant might be sold or merged with someone else Manning also informed Sylvester that he had heard that the latter was going to reopen the plant and operate it on a non union basis Sylvester indicated that if Manning had heard that he did not hear it from Sylvester but did ob serve that 70 percent of the employees did not want a union Manning insisted that a contract was in effect and that employees should be recalled by seniority Sylvester declined to take a definite position but told the union representatives that if he did any hiring it would not be until August 1 and he would get in touch with them before taking any action 16 Thereafter on August 3 1982 Manning together with Local 424 s president Edward Steinmetz ran down Syl vester at his home Manning then indicated again that he had heard that the plant was to open Sylvester respond ed in the affirmative while indicating that it was his po sition that there was no contract Manning expressed a willingness to sit down and discuss any help Sylvester might need Sylvester expressed his appreciation but de clined Manning indicated that he would do what was necessary to protect the membership and again urged that employees be recalled in accordance with senion ty 17 On August 9 the initial unfair labor practice charge was filed alleging a refusal to bargain in good faith since August 2 1982 Thereafter full scale production began on August 19 when 92 employees including 79 with prior employment history were placed on the payroll This was followed by a further visit to the plant by Manning on August 24 1982 this time in the company of an International repre sentative of the United Food and Commercial Workers George Nestler On that occasion Nestler and Manning were rebuffed with Sylvester preempting any and all discussion by commenting that he had nothing to say to them 16 Sylvester testified that during the third week of June it is possible that he may have had a visit from Manning and Peterson in which they asked if he was going to honor the agreement According to Sylvester he indicated that he had nothing to talk about Also in his testimony Syl vester conceded that at the time work had commenced on revitalization of the refrigeration system in anticipation of reopening the plant No tes timony was offered by Respondent to mitigate my strong impression that at all times material Sylvester confronted the Unions from a posture of evasiveness and secrecy regarding just what was going on at the plant 17 Sylvester acknowledged that this meeting took place on August 3 and indicated that he at that time conveyed his position that the con tract was not in effect STERLING PROCESSING CORP In the face of this clear evidence based largely on matters confirmed by Sylvester himself the contention that the Unions professed disinterest in continued repre sentation of Sterling employees was plainly contrived if not frivolous In contrast considering the evasive pos ture of Respondent the joint representative cannot be faulted with indifference inaction or injudiciousness in the effort to preserve the representational interest of em ployees during this entire period 18 Accordingly the claim of abandonment either considered alone or in con junction with other evidence in this record offers no substantial basis for negating any obligation held by the Respondent to recognize the joint representative as of August 19 1982 Also rejected is Respondents contention that prior to August 19 1982 the Unions failed to make an effective demand for recognition While conceding that the Unions requested that Respondent honor the contract the latter argues that such requests did not entail a re quest for recognition However a demand for adherence to a contract by an incumbent representative fails to fur nish a defense to a denial of recognition where an obliga tion to recognize would on other grounds exist Atlas Graphics 227 NLRB 136 (1976) relied on by Respond ent is perfectly consistent with this view and hardly ex cused Sylvester s course of conduct toward the Unions In that case the Board adopted the conclusion of an ad ministrative law judge that a union s unwaivering insist ence that a successor employer adopt an existing contract did not constitute a request for bargaining where the union afforded the new employer no alternatives Re spondent s interpretation of that case however over looks the fact that the administrative law judge in so holding confirmed that these requests might be a re quest to recognize the Union 227 NLRB at 141 In any event in the instant case the possibility of relief from the contract was not shown to be beyond comtemplation of the union representatives To the contrary testimony by Manning and Edward Steinmetz which was not directly contradicted by Sylvester establishes that on August 3 1982 it was indicated to Sylvester that if he were to reopen and needed help Local 424 would be willing to discuss the matter Indeed according to Sylvester him self the statement on behalf of Local 424 made at his June 16 1982 meeting with Manning and Peterson was 8In support of the abandonment claim Respondent makes a some what oblique reference to various actions by Local 424 in connection with a merger between Amalgamated Meatcutters and the Retail Clerks International Association which was perfected on March 25 1979 In this regard Respondent claims that disinterest in representation is some how shown by the alleged failure apparently prior to June 1979 of Local 424 to notify and educate the membership about the intended merger Undisputed testimony indicates that such notice was effected However I fail to perceive just how they could reasonably be considered as indicative of disinterest in the light of the express notification provided to Respondent on September 26 1979 See G C Exh 2 Indeed it was after such notification on October 29 1979 that the joint representative executed a collective bargaining agreement with Respondent (See Jt Exh 1) Beyond reliance on the merger Respondent attempts to distract from the Unions affirmative manifestations of their continuing interest by dwelling on omissions by the latter In these latter respects any fore bearance on their part was in the nature of tactical discretionary maneu vets hardly inconsistent with their overt unmistakable assertions of a continuing interest in representation throughout 217 are you going to honor the agreement and we would like to talk about it Thus unlike Athens Graphics supra the posture of the statutory representative could not fairly be characterized as of the inflexible take it or leave it variety Instead as I construe the testimony a willingness was conveyed to discuss possible relaxation of established terms Cf Viking Lithographers 184 NLRB 139 (1970) Southern Wipers 192 NLRB 816 (1971) Fi nally the refusal to bargain charge filed on August 9 1982 was itself tantamount to a valid request for recog nition under established Board policy 19 The request was of a continuing nature and was fully operative on August 19 1982 when a representative complement was employed20 and was renewed a few days later on August 24 1982 when the attempt to again confer by Local 424 representatives was frustrated by Sylvester 21 2 The hiatus and the change in operation The absence of proof that Respondent acted on a declaration of em ployee sentiment does not end the inquiry For Respond ent contends that when it reopened after a 20 month shutdown it embarked on an entirely different buss ness thereby negating any duty to recognize and bar gain with the joint representative It appears that in Jan uary 1981 Sterling was a fully integrated poultry pro ducer and processor In that capacity it purchased for its own account live chickens and arranged for and effected their delivery to the Sterling plant where the poultry was killed plucked eviscerated cut packaged stored or immediately loaded aboard Respondents own vehi Iles for delivery to customers within a 150 mile radius of Oakland Finished product was marketed by Sterling under its own trademark to customers developed through Sterling s own sales force Sterling then pri manly was engaged in production of broilers 7 to 9 weeks of age and weighing approximately 4 to 5 pounds live weight Its finished product mix consisted of 50 per cent whole birds 25 percent knife cut parts (eight pieces) for the general market and 25 percent saw cut parts for Kentucky Fried Chicken (KFC) outlets (nine pieces) Some 185 bargaining unit employees in January 1981 were engaged in the above described processing and over the road delivery and distribution operations On the date of the hearing Sterling had the same own ership corporate form plant location and telephone number as on January 21 1981 On the other hand the reopening in August 1982 was facilitated solely by an ar rangement made between Sterling and a large unidenti feed poultry enterprise Under the new arrangement Sterling s involvement was limited to custom processing of broilers heavy fowl and roasting chickens 22 all owned by the unidentified contractor No work was per formed for Sterling s own account or any other contrac 19 See e g Sewanee Coal Operators Assn 162 NLRB 172 (1967) Rob erts Electric Co 227 NLRB 1312 1319 (1977) 20 See Essex Wire Corp 188 NLRB 397 412 (1971) Hudson River Ag gregates 246 NLRB 192 195 fn 3 (1979) 21 Scott Gross Co 197 NLRB 420 426 (1972) It could not fairly be concluded that Sylvester as of that date had no hunch as to the purpose behind the presence of these individuals on August 24 1982 For the most part the poultry processed by Respondent since August 19 1982 weighed from 5 to 7 pounds and hence were heavier than that primarily worked on as of January 1981 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tor Thus it would appear that to this extent Respond ent s volume of business and work flow is determined by the contractor with Sterling compensated on the basis of the pounds of ready to cook product processed Its agreement with the contractor is subject to cancellation on 90 days notice Initially the work force consisted of 92 employees a figure that included 79 that had been employed in the bargaining unit in January 1981 23 Re spondent no longer sells to KFC or other fast food re tailers Accordingly it does not saw cut chickens In connection with the latter equipment used in that oper ation though still possessed by the Respondent is no longer used The area that housed the KFC is now occu pied by an expansive Cry 0 Vac process 24 Changes impacting on the historic bargaining unit were limited to broadened interchange between jobs changes in the number of employees assigned to particu lar operations the fact Respondent no longer has a Ken tucky Fried Chicken operation 25 the renewed and broadened use of the Cry 0 Vac process 26 and the fact that Respondent no longer through its own employees transports from source to plant or from plant to custom er 27 Beyond introduction of Cry 0 Vac and the now dis pensable KFC cutting equipment the only changes in equipment and process which appear to influence the manner which employees performed their work related to a higher degree of quality control and the size of the chickens handled In connection with the latter after an initial trial it was determined that the automatic killing machine previously in use was ineffectual due to the greater weight and size of the poultry For the same reason the defeathering machine had to be abandoned and more personnel was assigned to the picking room While work on the eviscerating lines has remained essen tially unchanged the lines are run slower with the work slightly more difficult because of the need to handle larger birds All in all however it does not appear that skill demands on employees in the reopened operation were significantly different from those performed within the collective bargaining unit in the past 28 Although Respondent adduced testimony to the effect that it has surrendered elements of control to the con tractor this claim must be evaluated in the context of the processing contract where at article 9(A) it is stated in material part as follows 23 As of October 18 1982 the work force had grown to 117 employ ees 84 of whom had been employed at the time of closedown 24 Cry 0 Vac is a partially automated packaging process that permits whole poultry to be sold as either fresh or frozen It utilizes whole chick ens evaluated as meeting grade A standards and entails some 40 to 60 percent of Respondents entire output The balance of the chickens are shipped after being hand cut into parts The Cry 0 Vac equipment is not owned by Respondent but belongs to the contractor Some years prior to the closedown Sterling for a brief period maintained a Cry 0 Vac op eration for the processing of turkeys The most recent collective bargain ing agreement includes the classification Cry 0 Vac operator See Jt Exh 1 (8) 25 In January 1971 there were 10 jobs in the KFC operation 28 The new Cry 0 Vac operation is manned by about 34 employees 27 Prior to the closedown Respondent employed five truckdrivers 28 In so concluding I have not overlooked the testimony of Sylvester to the effect that some on the job training was required in connection with Cry 0 Vac It is understood between the parties hereto that Sterling is undertaking this Agreement as an inde pendent contractor and that [the contractor] shall have no control over its operation other than as specified herein The responsibility for Sterling s fa cilities equipment and manpower and any incur ance on the same shall be and remain with Sterling Sterling shall maintain its facility at its29 own cost and expense in a state of fitness and efficiently [sic] Respondent urges that the innovations described above be evaluated in light of principles governing in succes sorship cases See e g NLRB v Burns Security Services 406 U S 272 (1972) Band Age Inc 217 NLRB 449 (1975) enfd 532 F 2d 1 (1st Cir 1976) cert denied 429 U S 921 (1976) However even if successorship doctrine were deemed controlling here it would be my conclu sion that the operational differences standing alone or in conjunction with the hiatus were not sufficiently dra matic to alter the identity of the employing enterprise 30 Thus during the 18 month hiatus Respondent persisted in its effort to arrive at some arrangement whereby re opening would be feasible When it succeeded produc tion resumed with ultimate responsibility for manage ment of the plant remaining in Sylvester the general manager and former Plant Superintendent Carol Schroyer There also was no change in the identity of the personnel manager Jerry Sanders 29 See R Exh 14 30 In my opinion the better view is that where as here the identity and location of the employer is unchanged the legal import of any super vening change in circumstances to an established bargaining relationship ought be assessed in terms of whether the employer denied recognition on objective factors furnishing a reasonably based doubt that the un on continued to represent a majority For obvious reasons latitude given a new and distinct employer under the successorship doctrine is much broader Thus an entity that acquires a business may or may not on a nondiscriminatory basis effect changes in the work force make substan teal revisions in the method of operation or open immediately or defer the reopening of the venture These options in successorship cases are ex ercised as a matter of economic discretion by a stranger to the establish ment of the historic bargaining relationship and its independence there from is recognized in the successorship doctrine Should the new firm de cline to recognize the historic representative the legality of its course as a successor will be evaluated primarily in the light of the manner in which it exercised economic judgment in the critical areas mentioned above And rejection of a union might be excused under that analysis even if the new employer is unable to produce evidence regarding em ployee sentiment Thus in successorship cases the policy encouraging stability in existing bargaining relationships yields somewhat to interests of a new nonconsenting party and the focal point of the successorship inquiry rests on what the new employer has done rather than the wisnes of its employees In contrast however where the identity of the employ er remains a constant there is no third party interest to protect and the inquiry properly turns on the historic accommodation between freedom of choice and the equally desirable policy encouraging stability in exist mg bargaining relationships These competing interests have been accom modated through decisional precedent which requires the employer to continue bargaining until possessed of objective evidence reasonably es tablishing that the union has lost its majority It is that test that properly governs here Nonetheless as the Board has given lip service to successorship cases in evaluating an employers obligation to bargain and as under either standard on the instant record the result would be the same I have given Respondent the benefit of the doubt and at least as to the immediate issue shall resolve the matter in the light of successorship principles See Vans Packing Plant 211 NLRB 692 (1974) Cf Blazer Corp 236 NLRB 103 (1978) a successorship case STERLING PROCESSING CORP The resumed operation continued with the rehiring of a substantial majority of Sterling s former employees In evaluating the changes in operation and their impact on the collective bargaining unit it is most significant that Respondent continue to function as a processor of chick ens The labor intense segment of its operation in both January 1981 and August 1982 remained unaltered The changes in equipment methodology and utilization of unit employees did not modify materially the identity of the employing industry A substantial majority of former employees were selected by Respondent to perform the same tasks at the same place that they had worked in the past 31 Accordingly I find that even if Respondent as of August 19 1982 were regarded as a successor it would not have been exonerated from its duty to bargain in good faith Having concluded that Respondent did not act on objective considerations evidencing that the Union had lost its representative status it is concluded that as of that date Respondent violated Section 8(a)(5) by refusing on request to recognize and bargain with the joint representative The complaint further alleges that Respondent violat ed Section 8(a)(5) and (1) of the Act by discontinuing unilaterally certain established terms of employment without affording the joint representative the opportum ty to negotiate and bargain It is undisputed that Sylves ter prior to the August 1982 hirings conducted onenta tion sessions with job applicants during which he deliv ered a prepared statement 32 An appeal was made to the assembled applicants that their help was needed to enable the plant to continue to operate The need was stressed for good hard working employees willing to work for good wages and limited benefits to help make our company successful and willing to sacrifice now so you can have a job in the future Sylvester then listed the benefits that would be paid The basis wage rate of $4 per hour undercut that which was to have been effective under article V of the collective bargain ing agreement on September 1 1981 33 A single paid holiday was mentioned in contrast to the 8 paid holidays described in article VII of the contract Omitted from the new benefit structure were the protective assurances of seniority set forth in article III of the collective bar gaining agreement premium pay for daily hours worked in excess of 8 as set forth in article IV grievance arbitra tion as set forth in article IX funeral pay as set forth in article XI of the contract and health and welfare protec tion as provided in article XII 34 31406 U S at 273 32 See G C Exh 14(b) 33 Under the terms of the expired collective bargaining agreement in the case of production workers 3 different wage rates were applied to 13 classifications Maintenance mechanics were separately rated in each of three classes Truckdnvers dockmen warehousemen and other classifi cations of interest to Teamsters Local No 453 were within five different rates in five classifications On resumption of operations in August 1982 only two classifications were recognized in production areas namely plant worker and live hanger and a separate rate was recognized for maintenance mechanics Those assigned to positions resembling the former Teamsters operation were placed within the plant worker classifi cation 34 See it Exh I 219 In this connection Respondent argues that it was free to set its own wages hours and working conditions prior to August 19 1982 citing Spruce Up Corp 209 NLRB 194 (1974) and other precedent addressed to new employers in successorship situations In the latter the following reference was made to certain reasoning of the Supreme Court in NLRB v Burns Security Services supra In Burns the Supreme Court enunciated the prim ciple that a successor employer is ordinarily free to set initial terms on which it will hire employees of a predecessor without first bargaining with the employees bargaining representative In the same paragraph however it recognized an exception to that principle in instances in which it is perfectly clear that the new employer plans to retain all the employees in the unit We believe the caveat in Burns should be re stricted to circumstances in which the new employ er has either actively or by tacit inference misled employees into believing they would all be retained without change in their wages hours or conditions of employment or at least to circumstances where the new employer has failed to clearly an nounce its intent to establish a new set of conditions prior to inviting former employees to accept em ployment [209 NLRB at 195 ] Indisputable fact on this record demonstrates that Re spondent announced a new set of employment terms before hiring former employees in substantial numbers on and after August 19 1982 Hence if the law governing successorship controls in this instance these unilateral changes all would fail within the privileged area dis cussed in Spruce Up 35 However the latitude afforded in this respect clearly is limited to successor employers Thus the Supreme Court recognized in Burns that during the period between collective bargaining agree ments employers situated similarly to the Respondent here are subject to an obligation to bargain which in cludes a negative injunction to refrain from unilaterally changing wages and other benefits established by a prior collective bargaining agreement even though that agree ment had expired (406 U S at 293) The distinction in successorship cases was rationalized by the Court as fol lows Although Burns [the successor] had an obligation to bargain with union concerning wages and other conditions of employment when the Union request ed it to do so this case is not like a Section 8(a)(5) violation where an employer unilaterally changes a condition of employment without consulting a bar gaining representative It is difficult to understand how Burns could be said to have changed unilateral ly any pre existing term or condition of employ ment without bargaining when it had no previous relationship whatsoever to the bargaining unit and 3 s Cf Howard Johnson Co 198 NLRB 763 (1972) 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no outstanding term and conditions of employ ment from which a change could be inferred The terms on which Burns hired employees for service may have differed from the terms extended by [the predecessor] but it does not follow that Burns changed its underlying terms and conditions of employment when it specified the initial basis on which employees were hired [406 U S at 294 ] In the case at hand Sterling was hardly a stranger to the establishment of the terms it altered on August 18 And whatever comfort might be gleaned by Respondent from other elements of the successorship doctrine the Con gressional restraints on the Board s authority to impose bargaining obligations on nonconsenting employers can be of no avail to the Respondent See 406 U S at 283- 287 Accordingly it is found that Respondent violated Section 8(a)(5) and ( 1) of the Act by on August 19 1982 modifying preexisting wages and working conditions by setting unilaterally new terms without providing notice or opportunity to negotiate to the designated employee representative CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act 2 The Unions are labor organizations within the meaning of Section 2(5) of the Act 3 Respondent on August 19 1982 violated Section 8(a)(5) and (1) of the Act by refusing on request to rec ognize the joint representative as exclusive bargaining agent of employees in the appropriate unit defined below All employees of the employer excluding the plant superintendent foreman clerical workers execu tives and guards 4 Respondent violated Section 8(a)(5) and (1) of the Act by on August 19 1982 establishing its own terms and conditions of employment thereby abrogating wage levels and benefits previously enjoyed by employees without first notifying and negotiating with the exclusive bargaining agent of the employees 5 The unfair labor practices found above in para graphs 3 and 4 constitute unfair labor practices having an effect on commerce 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 within the meaning of Section 8(a)(5) and (1) of the Act it shall be recommended that Respondent be ordered to cease and desist and to take certain affirmative action designed to effectuate the pole cies of the Act Respondent contends that notwithstanding its unlaw ful refusal to bargain the preferred remedy is the hold ing of an election rather than the issuance of a bargain ing order In support Respondent observes that it would be a travesty of the rights of Sterling s employees to require Sterling to bargain with the unions In this respect Respondent points to the fact that on about Oc tober 18 1982 it was presented with a petition signed by some 65 employees endorsing the following When the Sterling Processing reopened all employ ees strongly indicated that they preferred a non union plant This petition is being circulated in order to reaffirm the employees decision made at the time of hiring The October articulation of employee preference is of no surprise when considered against the orientation meet ings conducted by Sylvester in August Thus as job ap plicants these employees on that occasion in August were told that only those who agreed to accept the terms and conditions of employment defined by Sylves ter would be given jobs The vast majority of those ap plicants were acquainted with the benefits enjoyed previ ously pursuant to the expired collective bargaining agreement They would have been in position readily to identify the new terms as such a drastic and sweeping cut as to be incompatible with further union representa tion It is not farfetched to conclude that under these circumstances acceptance of jobs by employees entailed a knowing concession that they preferred a non union plant 36 Respondent also points to the results of the poll taken on October 19 1982 where union representation was re jected by a vote 23 for 69 against Prior to the conduct of this vote Sylvester distributed a memorandum to em ployees which in addition to instructing them of the me chanics of the poll and assuring against reprisals he pointed out that Sterling had concluded that a majority of our employees do not want the union and that the purpose of the secret ballot was to double check that conclusion 37 In connection with the foregoing as the General Counsel observes the legality of such a poll like the weight given results thereof under Board prece dent is questionable See e g Forbidden City Restaurant 265 NLRB 409 (1982) Nevertheless on this record the employee sentiment manifested by the October 1982 petition and poll fail to detract from the propriety of a bargaining order For at that time Respondent was not free to raise a doubt of majority In Guerdon Industries 218 NLRB 658 659 (1975) it was stated as follows As to a reasonably based doubt two prerequisites for sustaining that defense are that the asserted 36 The complaint does not alleged that the ultimatum delivered by Syl vester to job applicants at the prehiring orientation meetings independ ently violated Sec 8(a)(1) of the Act Nonetheless his offer on that occa Sion implicitly required employees to choose between a job and collec tive bargaining It was a transparent ploy possessed of the very evils that historians in the field of labor management relations would be quick to recognize as inherent in the yellow dog contract See Hitchman Coal & Coke Co v Mitchell 245 U S 229 (1917) 2 Leg Hist 3068-3069 (NLRA 1935) Respondents conduct in this regard has not been discounted in considering whether the unlawful denial of recognition and abrogation of existing working conditions contributed to the views expressed by em ployees in October 1982 s See R Exh 18(a) STERLING PROCESSING CORP doubt must be based on objective considerations and such doubt must be raised in a context free of unfair labor practices [A]n employer may not avoid the duty to bargain by demonstrating a loss of majority status arising from its own unfair labor practices 38 At the same time as stated in NLRB v Nu Southern Dyeing & Finishing 444 F 2d 11 15-16 (4th Cir 1971) in which a denial of rec ognition is preceded by unfair labor practices an em ployer may avoid a bargaining order by showing that the unfair labor practices did not significantly contribute to such a loss of majority or to the facts upon which a doubt of majority is based That burden has not been met here For Respondent refused to recognize the Unions from the outset while simultaneously declaring to employees that the terms under which they would work would be reduced drastically The impact of this unlawful activity was underscored by Respondent s having offered jobs only to those willing to accept terms so incompatible with any possibility of future collective bargaining as to be the practical equivalent of a commit ment on the part of those hired to abandon union activi ty This conduct all at the time of or shortly before the 38 NLRB v Little Rock Downtowner 414 F 2d 1084 1091 at fn 4 (8th Cir 1969) Celanese Corp of America 95 NLRB 664 673 (1951) Terrell Machine Co 173 NLRB 1480 1481 (1969) Chet Monez Ford 241 NLRB 348 351 (1979) 221 plant s reopening is not lightly dismissed as having no causative influence on employee repudiation of the Union some 2 months later 39 An affirmative bargaining order is deemed appropriate In addition it is necessary to fashion a remedy for the further finding that Respondent violated Section 8(a)(5) and (1) of he Act by unilaterally fixing its own terms of employment In this respect it shall be recommended that Respondent be ordered to make whole the employ ees in the unit for any loss of pay or other benefits they may have suffered as a result of Respondents implemen tation of the changes retroactive to August 19 1982 when the changes were implemented and to continue such payments until Respondent negotiates in good faith to agreement or impasse 40 It shall be recommended fur ther that all backpay and deferred compensation due under the terms of this order shall include interest as specified in Florida Steel Corp 231 NLRB 651 (1977) 41 [Recommended Order omitted from publication ] 89 Cf Deblm Mfg Corp 208 NLRB 392 401 (1974) Respondent in this respect also relies on cases pertaining to the Board s authority to issue bargaining orders to redress collateral unfair labor practices in the context of an initial organization campaign However NLRB v Gissel Packing Co 395 U S 575 (1969) and its progeny are for obvious reasons irrelevant to consideration of the means by which the Board should re dress an employers repudiation of a long-established collective bargain mg relationship 40 See e g Howard Johnson Co 198 NLRB 763 764 (1972) 4i See generally Isis Plumbing Co 138 NLRB 716 (1962)