Cleveland Sales Co

CLEVELAND SALES CO Clesco Mfg Div of Cleveland Sales Co and Truck Drivers Local Union No 407, International Brotherhood of Teamsters, Chauffeurs, Ware housemen and Helpers of America , AFL-CIO Cases 8-CA-19718 and 8-CA-20164 February 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On May 25, 1988, Administrative Law Judge Claude R Wolfe issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief 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, i and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Clesco Mfg Div of Cleveland Sales Co, Willoughby, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order 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 judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 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 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 con ducting 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 the evidence proffered by the Respondent is insufficient to consti tute substantial objective evidence of loss of union support Rather the evidence established that the reason for the poll was the Respondents belief that the employees did not need a union Thus it was the Respond ent s conclusions about the necessity of a union not a belief that there was a loss of support that prompted the Respondent to poll the employ ees Mark Carissimi Esq, for the General Counsel Stuart 0 H Merz and James Perrin Esqs for the Re spondent DECISION 1151 CLAUDE R WOLFE, Administrative Law Judge This consolidated proceeding was litigated before me at Cleveland, Ohio, on March 17 1988, after a rather in volved procedural history The charge in Case 8-CA- 19718 was filed by the Union on December 17, 1986, and served on December 18, 1986 This charge alleged Clesco Mfg Div of Cleveland Sales Co (Clesco or Re spondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) by refusing to bargain collectively with Truck Drivers Local Union No 407 (the Union) On December 15 1986, 2 days prior to the filing of the charge, Sean Mulhearn, an individual, filed a decertification petition in Case 8-RD-1376 seeking the decertification of the Union as the collective bargaining representative of Clesco s production and maintenance employees This petition was withdrawn on February 5, 1987 because a complaint had issued in Case 8-CA- 19718 alleging Respondent had violated Section 8(a)(5) and (1) of the Act by advising the Union negotiations would be a waste of time, by unlawfully polling its em ployees regarding whether they wished to be represented by the Union, by telling employees they did not need the Union and that the Union approved of the poll, by in flexibly insisting on a 1 year contract extension expiring September 11, 1987 and by advising an employee that temporary employees would be terminated if they became involved in the Union On February 25 1987, the Board s Regional Director approved a unilateral settlement, to which the Union was not a signatory, disposing of the complaint allegations in Case 8-CA-19718 and withdrawing the complaint Sean Mulhearn then on May 14 1987, filed another decertifi cation petition concerning the same employees in Case 8-RD-1404 On June 11, 1987 the Union filed another charge in Case 8-CA-20164 which was served on June 12 1987 By letter of November 23, 1987, the Regional Director dismissed the petition in Case 8-RD-1404, and advised the settlement in Case 8-CA-19718 would be va cated and a consolidated complaint would issue in Cases 8-CA-19718 and 8-CA-20164 On November 30 1987 a consolidated complaint issued in those cases alleging vio lations of Section 8(a)(5) and (1) of the Act consisting of the allegations previously urged in Case 8-CA-19718 and an additional allegation in Case 8-CA-20164 that from about April 15 through June 3, 1987 Respondent continued to insist on an unreasonably short expiration date for any contract reached The consolidated com plaint was amended at hearing to allege Respondent ad vised the Union it was not needed by the Company and the employees would learn they would be better off without it Respondent denies the commission of unfair labor practices and raises affirmative defenses In this posture the case came before me for hearing On the entire record and the demeanor of the witnesses testify ing before me, and after considering the posttrial briefs submitted by the parties I make the following 292 NLRB No 126 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS I JURISDICTION At all times here Respondent an Ohio corporation with an office and place of business in Willoughby Ohio has been engaged in the manufacture of hardware Annu ally Respondent in the course and conduct of these business operations purchased and received at its Wit loughby Ohio facility products goods, and materials valued in excess of $50,000 directly from points outside the State of Ohio Respondent is now , and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION The Union 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 Facts Found Following the Board s May 12 1983 certification of the Union as the exclusive collective bargaining repre sentative of Clesco s employees in an appropriate bar gaining unit, Clesco and the Union entered into a collec tive bargaining agreement covering those employees' of fective September 12 1983 to September 11 1986 By letter of June 24 1986, the Unions president C Sam Theodus notified Clesco that the Union wanted to revise or change contractual provisions and requested an early response so that negotiations might be completed before September 11 1986 This was followed by a July 16 letter from Bob Wenger union business representa tive requesting Clesco to contact the union office to ar range a mutually convenient date for negotiations Thomas Malak Respondents president responded by letter to Wenger dated July 21 and reading in relevant part as follows I received your letters Sorry for the late reply but I have been out of town on business for the last two weeks Please let us know what your proposals for a new labor contract would be Also we want to let you know that we will probably conduct a poll of our current employees to get their feelings on the current situation of our company James Davis a union representative called Malak on July 23 and explained he was calling on Wenger s behalf to arrange a meeting date According to Davis Malak told him that although he was willing to sit down with the Union it would be a waste of time because he did not ' The bargaining unit is described in the contract as follows All production and maintenance employees employed by the Em ployer at its plant located at 4366 Hamann Parkway Willoughby Ohio excluding all office clerical employees foremen and supervi sors and all guards professional employees as defined in the Labor Management Relations Act as amended and all other employees of the Company believe Clesco s employees were still interested in union membership and he was going to poll his employees on the matter Davis testified that he told Malak he did not think Malak should be taking any polls or undermining the Union and Malak should just set a date to sit down and negotiate Malak denies telling Davis he was taking a poll or that meeting would be a waste of time Malak avers that he told Davis it would be a timesaver and more productive if the Union would submit its proposals for study prior to a meeting Wenger called Malak on July 30 to discuss the upcom ing negotiations According to Wenger Malak said he thought the employees would be better of without the Union Respondent had made a decision it did not need the Union and he was going to poll the employees Wenger says he protested the poll and stated the Union was the employees bargaining representative with whom Malak should negotiate Wenger testified that Malak in sisted Respondent was going to go ahead and not have a union and that as time went on, the employees would learn that they would be better off without the Union Malak testified that, after some general conversation about the economy generally and Clesco s business con ditions, Wenger commented that from the way it sound ed maybe negotiations would be a waste of time and maybe the Union would have to go on strike Malak denies stating he thought negotiations would be a waste of time He states that he told Wenger he was going to poll the employees because I wanted to have an under standing of how the majority of the employees felt about being in the you know, having a union and that was what I did Malak claims Wenger said nothing to this and did not object to the poll Malak s testimony that neither Wenger nor Davis ob jected to his proposal to poll the employees on whether they wanted the Union is unbelievable It is difficult to imagine a more improbable sequence than union repre sentatives standing mute without a word of protest when confronted with a challenge to the Union s representa tive status such as Malak s poll posed Moreover Wenger s testimony that Malak said he thought the em ployees would be better off without the Union and Clesco did not need a union is consistent with Malak s testimony that he had told employees they did not need a union before he conducted a poll on August 8 1986 and Thomas Nielson s credible testimony that Malak told the employees in June 1986 that he felt the employees did not need a union Wenger and Davis were more im pressive and believable witnesses than Malak who was given to circumlocution Given the improbability of Malak s versions the detailed and more probable ver sions of Davis and Wenger regarding their reactions to Malak s intention to poll the employees Malak s advice to employees that they did not need a union the tenden cy of Malak to circumlocution and the superior testimo vial demeanor of Davis and Wenger in terms of apparent candor and certainty the versions of the telephone con versations of July 23 and 30 given by Davis and Wenger respectively are credited over the versions given by Malak which are found incredible to the extent they CLEVELAND SALES CO contradict the testimony of Davis and Wenger on these conversations On July 30 Wenger sent Malak a letter reading in pertinent part, as follows This letter will serve to confirm our phone con versation whereby we will meet on Wednesday August 13 1986, 10 00 AM This meeting will take place even though you have already determined that any discussion con cerning the contract, which expires September 12 1986, will be futile, because of your predetermined summation that your employees no longer need a Union and would be better off without one Wenger mailed written contract proposals to Malak on August 7 The proposals called for a 3 year contract from 1986 to 1989, changes in hospitalization coverage 25 cent an hour increases twice a year for part time em ployees, 50 cent per hour increase each year for full time employees, 10 percent increase in piece work rates, and 2 all purpose days off prior to 1 year employment and thereafter 1 day per month to a maximum of 8 days per contract year On August 8, Malak polled the employees Malak testi feed and is credited that two employees had told him they were dissatisfied with the Union and being part of it, and asked if it was going to be a good idea to have a union Another employee was considered by him to be antiunion because of religious convictions I also credit his testimony that he told the six employees assembled on August 8 that it would be a secret ballot they did not have to take part if they did not want to and there would be no reprisals Contrary to Malak s denial, I con elude Thomas Nielson's testimony that Malak told the employees that the Union had given permission to take the poll should be credited 2 In so concluding I have considered that Nielson remains Respondents employee is therefore not likely to deliberately fabricate testimony contrary to that of his employer who controls his imme diate employment future 3 and had no apparent reason to concoct this report The ballot distributed to the employ ees posed the question, Do you think that Clesco still needs a union? and had yes and no boxes within which to note the voters answer Of the six employees, three voted yes two voted no and one did not mark his ballot From this tally Malak concluded there was still a majority favoring union representation and negotiations with the Union should proceed Respondent s bargaining team initially consisted of Re spondent s lawyer and chief spokesman Stuart Merz Malak, and Joseph Drake Respondent s general manag er Wenger and Davis represented the Union in most of the meetings At the first meeting on August 13 1986 Wenger stated the Union was present to negotiate its proposals Merz responded the Respondent was not in a position to do anything other than offer a 1 year exten 2 The Union did not give permission for the poll 3 See e g Unarco Industries 197 NLRB 489 491 (1972) 1153 sion on the contract Wenger4 said the Union could not accept a 1 year extension but would consider a 3 year contract with a 1 year freeze and reopeners in the second and third year Merz rejected this proposal and repeated Respondents request for a 1 year extension of the con tract to expire on September 11 1987 The Union would not agree to this At the next meeting on August 21 Wenger said he was willing to listen if Clesco would say why it wanted a 1 year extension and would show the Union some fi nancial statements Wenger then asked if Respondent was pleading poverty Merz said it was not but Re spondent was not going to offer anything other than a 1 year extension to the contract Wenger then asked for the Respondents final position in writing Wenger ex plains that he wanted Respondents position in writing to show the employees to secure their continued support That very day Malak sent Wenger a letter reading as follows This is in response to your request for the Compa ny s final offer As we indicated in our meeting this date, that offer is that we extend the current con tract, without change, for one year Wenger answered by letter of August 29 that the Union would recommend to Respondents employees that they reject Respondents offer, and would advise Malak of the results The offer was unanimously rejected by the em ployees on September 10 and a strike vote carved by a 5 to 1 margin Wenger advised Malak of those results and requested continued negotiations in a letter dated September 12 The parties met again on October 22 Respondents po sition remained the same The Union withdrew its pro posal for the changes in hospitalization, and reduced its request for a maximum of 8 all purpose days off after the first year of employment to a maximum of 4 The next meeting took place on November 5 Wenger was the sole union representative present Clesco s team remained the same Wenger offered to reduce the pro posed wage increase for full time employees from 50 cents per hour each year to 40 cents Respondents pose tion remained the same Wenger and Davis met again with Merz Malak and Drake on November 19 Respondents position remained the same Wenger credibly testified that Merz told him at three or four meetings Respondent wanted a 1 year contract because the Company could not see beyond that period and was not willing to make a commitment beyond it The Union offered no new proposals and Wenger said the Union would give Respondents propos al further consideration and get in touch with Respond ent if the Union considered it necessary to meet again On December 5 Wenger sent the following letter to Merz 5 4 Inasmuch as Wenger was the Union s chief spokesman I have con eluded that positions attributed to the Union at negotiation meetings were voiced by Wenger 5 The body of the letter is reported in full 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Since receiving the company s (Clesco Manufac turing) final offer on August 28 1986 the Union has met with yourself and the company representa tives Tom Malak and Joe Drake, in an effort to ne gotiate a fair and just agreement for all parties con cerned Given the fact, that you have refused to give even a limited financial disclosure, it is hard for the Union to understand why you will not negotiate anything other than your position of a one (1) year extension to the current contract We have placed several items on the bargaining table and your one and only position has not dealt with them This is to advise that we are still interested in meeting with you and negotiating a fair and just contract If as you said, your first and final offer is the only position you will consider then the Union will be forced to once again submit your offer to your employees for their consideration However, we will wait until December 12, 1986 before going to our members In the meantime please contact us if you are willing to bargain Merz replied by letter of December 11 as follows This is in response to your letter of December 5 regarding the Clesco negotiations My apologies for not replying sooner but I was tied up in an Ohio Civil Rights Commission hearing earlier this week Prior to the onset of negotiations between Clesco and Local 407 Company officials carefully re viewed the economic conditions and their effect on business At that time they concluded that it would be extremely unwise to agree to any proposal which would increase labor costs Therefore, in response to the union s proposal for very substantial in creases the Company proposed that the existing contract be extended without change for one year That suggestion was rejected by the union Nothing has happened since we began negotia tions to alter the Company's assessment of the eco nomic climate We still believe it would be unwise and not in the best interests of the Company or the employees to increase labor costs at this time Therefore, our position calling for a one year exten sion of the contract has not changed and, absent a dramatic and totally unforeseen change in the economy, it is unlikely that it will change We will, of course, be happy to meet with you to further discuss this matter should } ou wish to do so Thomas Nielson testified that in the second week of December 1986 after he told a temporary employee Re spondent was a union shop and there might be an open ing for permanent employment with Respondent, Plant Manager Drake called him over and told him he could not promise temporary employees jobs and if Nielson in volved such employees in the Union the Respondent would get rid of them According to Nielson Drake concluded with These people need jobs too On cross examination, Nielson agreed that what Drake said was that temporary employees were only there for specific jobs and could be let go when those jobs were done On further examination by the General Counsel and me, it became obvious that Nielson although an honest wit ness was confused regarding what Drake actually said I therefore credit Drake s straightforward account that he was told by a permanent employee and a temporary em ployee that the temporary employee had been ap proached by either Wenger or Nielson the Union s stew ard, regarding employment at Clesco and was uncom fortable about being approached by the Union and being involved in something he had no reason to be involved with Drake explained this individuals discomfort at being so approached to Nielson, and suggested to Niel son that he should leave the temporary employees, who were not Clesco employees, out of the negotiations or any dispute between Clesco and the Union because these matters did not involve the temporary employees He also told Nielson as Nielson agrees, that temporary workers were there for a specific task and once that task is finished could be gone I further credit Drake that he did not tell Nielson that Respondent would get rid of the temporary employees if they became involved with the Union and conclude this was what Nielson believed Drake meant rather than what Drake actually said Mulhearn filed the decertification petition in Case 8- RD-1376 on December 16 The Union filed its charge in Case 8-CA-19718 on December 17 The petition was withdrawn on February 15 1987, and the settlement agreement in Case 8-CA-19718 approved on February 25, 1987 On March 23 1987, Wenger and Merz ar ranged to resume negotiations on April 13, 1987 The meeting was actually held on April 15 and began with Wenger Davis and Union Steward Thomas Nielson rep resenting the Union and Merz Malak and Drake for the Respondent At this meeting Respondent offered a pack age proposal consisting of a 2 cent wage increase, a 3 percent piece rate increase 1 all purpose day, and a con tract expiration date of September 11 1987 The Union reduced its wage request to 38 cents retroactive to Sep tember 1986 because Respondent offered 2 cents and re duced its all purpose day maximum to 3 days They met again on April 23 with Wenger the only one there for the Union Wenger proposed a contract ex piration date of September 1988 and reduced the all pur pose day proposal to 1 day Respondent offered a 3 cent wage increase and 3 percent on piece rate as a package deal retroactive to September 1986, provided the Union would agree to a September 11 1987 contract expiration date No agreement was reached The next meeting was on April 29 Respondent offered 4 cents on wages the 3 percent increase in piece rate, and contract expiration of September 11 1987 The Union reduced its wage increase proposal to 18 cents of fered to accept the 3 percent increase in piece rates and 1 all purpose day and wanted retroactivity to February 1987 and a May 30 1988 contract expiration date Merz said the Company was offering a package deal, all or nothing and would not move from the September 1987 expiration date but also said Respondent would agree to retroactivity if the Union agreed to the September 1987 expiration date CLEVELAND SALES CO At the next meeting on May 8 the Union proposed a May 30 1988 expiration date an 18 cent raise a 3 per cent increase in piece rate, and 1 all purpose day Re spondent stuck to its previous offer This angered Wenger who threatened to return to a 25 cent wage in crease and retroactivity to September 1986 This drew no response Wenger sent the following letter to Metz on May 13 1987, in relevant part As I have thought about your latest offer of May 8, 1987, it is apparent that the company s offer was an other attempt to belittle and to disquise the compa ny s contempt for the Union with their ridiculous offer The Union believes that the company s earlier stated position, (that the employees would be better off without the Union) is still intact as far as the company is concerned and because of this position, never really intended to bargain seriously with the Union Therefore, it is our position that your offer of the above mentioned date is grossly inadequate and does not respect the demands and needs of our members and we will not submit your offer to them for all of the mentioned reasons Wenger met with Merz and Malak on June 3 1987 Wenger concedes he was hostile and characterized Re spondent s offer of May 8 as a piece of excrement that he would not take to the union members He then gave the same offer tendered by him at the May 8 meeting Re spondent countered with a 5 cent wage increase a 3 per cent piece rate increase 1 all purpose day and a Septem ber 11 1987 expiration date all as a package deal Wenger agreed to the 3 percent piece rate raise and the 1 all purpose day, and proposed a 20 cent wage increase retroactive to February 1987 and contract expiration in May 1988 Respondent did not move from its offer No further meetings have been held Sean Mulhearn had filed his second decertification pe tition on May 14, 1987 in Case 8-RD-1404, which as I have noted was dismissed after the Regional Director determined to set aside the settlement and issue the con solidated complaint before me Four days before the second decertification petition was issued Malak advised the Union by letter of November 19, 1987 that Clesco did not believe the Union enjoyed majority support and therefore no longer recognized it as the representative of Clesco s employees The withdrawal of recognition is not alleged as a violation of the Act B Discussion and Conclusions The Board has a long established policy against setting aside a settlement agreement absent a breach thereof or the commission of subsequent unfair labor practices 6 The General Counsel alleges Respondents postsettle ment insistence on a contract expiration date of Septem ber 11 1987, to be such a circumstance because this expi ration date is unreasonably short In assessing the validity of this allegation it is appropriate to consider presettle 6 Sundstran Castings Co 209 NLRB 414 (1974) 1155 ment conduct for the purpose of establishing the motive or object of Respondents postsettlement conduct 7 By June 3, 1987 the last meeting between the parties Respondent was in fact requesting a contract of 3 months and 8 days duration by continuing to insist on a September 11 1987 expiration date The Board has re cently reaffirmed the general proposition that the con tent of bargaining proposals will, in certain circum stances, be evidence of an intent to frustrate the collec tive bargaining process 8 and it has long held that insist ence on a contract of less than a year without good reason is evidence of bad faith bargaining 9 The Board has also long held that when an employer proposes a contract of extremely limited duration, it must appear from the circumstances that the proposal is not in bad faith or to achieve an illegal purpose and the proposal must be based on a doubt of majority status based on ob jective considerations 10 It is also settled law that ada mant insistence on a bargaining position is not by itself a refusal to bargain in good faith and the determination of whether a party has bargained in bad faith must flow from an examination of the totality of circumstances within which the bargaining took place 11 Respondent notes in its posttrial brief and I find that it was not chal lenging the Union s status as a bargaining representative when it made its proposal of a 1 year contract extension I further find that this proposal was never thereafter based on a doubt of the Unions majority status Inas much as Clesco s insistence on the 1 year contract exten sion does not of itself constitute bad faith , 12 the totality of Respondents conduct during the bargaining period must be evaluated to determine if Clesco s refusal to de viate from its original contract term proposal was in good or bad faith Respondent is correct that the facts in this case are quite similar to those in Atlantic Hilton & Tower13 in 9 Joseph s Landscaping Service 154 NLRB 1384 (1965) Electrical Work ers Local 613 227 NLRB 1954 fn 1 (1977) and Berbiglta Inc 233 NLRB 1476 1485 (1977) 8 Reichhold Chemicals 288 NLRB 69 70 (1988) 9 Briarcliff Pavilion 260 NLRB 1374 1377 (1982) (4 1/2 months) Huck Mfg Co 254 NLRB 739 755-756 (1981) (2 months) Deister Concentrator Co 253 NLRB 358 (1980) (3 1/2 months) S&W Motor Lines 236 NLRB 938 955 (1978) (negotiations continued past the Respondent s proposed expiration date) and Insulating Fabricators 144 NLRB 1325 1329-1330 (1963) (6 months) 10 Grace & Hornbook Mfg Co 225 NLRB 15 17 (1976) Lithium Corp 275 NLRB 1482 1484-1485 (1985) 11 Schaeff Namco Inc 280 NLRB 1317 (1986) Boaz Carpet Yarns 280 NLRB 40 (1986) Hedaya Bros 277 NLRB 942 945 ( 1985) and Atlanta Hilton & Tower 271 NLRB 1600 1603 (1984) 12 Atlanta Hilton & Tower 271 NLRB 1600 1603 ( 1984) Malak gener ally identifies indebtedness the need for puce decreases caused by com petition with lower labor costs the unpredictability of Clesco s immedi ate business future and a desire to give the employees another chance to vote on Clesco s proposal of a I year contract extension as reasons for continuing to insist on an expiration date of September 11 1987 Clesco offered no documentary evidence to support Malak s conclusions Re spondent s posttrial brief recites that its motivation for insisting on a I year contract was economic uncertainty The general claim of economic uncertainty is broad enough to cover all of Malak s expressed reasons except his desire for another ratification vote on the proposal 13 271 NLRB 1600 (1984) 1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which the Board found the hotel had not refused to bar gain in good faith by firmly insisting on a 1 year exten sion of the collective bargaining agreement There as here the respondent appeared at numerous negotiating sessions, offered wage increases and had previously suc cessfully negotiated a collective bargaining agreement In the instant case Respondent also offered one all purpose day and piece rate increases The wage and piece rate in creases were to be retroactive to September 1986 All of these proposals were offered as part of a package con taming the September 1987 expiration date from which Clesco would not budge To this point there is no sub stantial difference between Atlanta Hilton and this case, but there are other factors to be weighed There is noth ing in Atlanta Hilton to indicate that the employer in any way evidenced an interest in ending union representation of its employees and I conclude for the following rea sons Atlantic Hilton is not controlling In this case Malak told Davis on July 23, 1986 that negotiations would be a waste of time because he did not believe the employees were still interested in union membership, and that he would therefore poll them regarding their interest in the Union Similarly, Malak told Wenger on July 30 1986 that employees would be better off without the Union, Clesco had decided it did not need the Union Clesco would poll the employees on their Union interest, Clesco would go ahead and not have a Union and employees would learn they would be better off without the Union After Malak made these statements he proceeded to poll the employees on August 8 1986, during the term of the contract This conduct of Malak on July 23 and July 30 and August 8 1986 warrants a conclusion which I make that Clesco did not want to bargain with the Union wished and planned to get rid of the Union, and polled the employees in furtherance of that plan 14 This conclusion together with Malak s advice to employees that they did not need a union a plain effort to dissuade them from retaining union representation and Respond ent s failure to provide either convincing economic rea sons or a reasonably based doubt of the Union s continu ing majority status as basis for its insistence on a Septem ber 11 1987 termination date persuade me that insistence was not in good faith Accordingly I conclude and find that during the postsettlement negotiations commencing April 15, 1987 only 5 months before Respondents pro posed expiration date, Respondent inflexibly insisted on a contract of less than a year s duration without good reason, and thereby engaged in bad faith bargaining vio lative of Section 8(a)(5) and (1) of the Act By so doing Respondent also failed to comply with the agreed on terms of the settlement agreement in Case 8-CA-19718 which provided, among other things that Respondent would not assume an inflexible bargaining position, and otherwise refuse to bargain in good faith and would on request, bargain in good faith with the Union The said settlement agreement was therefore properly set aside by the Board s Regional Director for Region 8 It 14 As found below when he polled the employees Malak did not have a reasonably based doubt of the Union s majority status which is pre sumed to exist throughout the term of the contract and thereafter unless rebutted is therefore appropriate to now consider the allegations of unfair labor practices preceding the settlement agree ment The evidence preponderates in favor of a conclusion that Respondent entered negotiations with a closed mind and a fixed inflexible position regarding the contract ter mination date gave short shrift to the Union s attempt to accommodate its concerns via a wage freeze for the first year of the contract and never varied its position on the termination date even after the period remaining before that date diminished to little more than 3 months Re spondent gave no better reason for its presettlement con duct than it did for its postsettlement conduct Respond ent s inflexible and unreasonable attitude regarding the contract termination date is contrary to the duty to bar gain in good faith and violated Section 8(a)(5) and (1) of the Act from the beginning of negotiations Malak s advice to employees that they did not need a union is not much different from the statement of the employer to his employees in Thomas Industries 15 that the company did not want the union and thought it would be in the employees best interest if there was no union there Accordingly, I find, as the Board did in Thomas that such comments are statements of opinion protected under Section 8(c) of the Act, do not violate Section 8(a)(1) of the Act, and although I find Malak s comment was designed to persuade employees they did not need a union it was not coercive The fact is how ever, that Respondent had no reasonably based doubt of the Union s majority status on which to base its poll and the poll was therefore unlawful 16 The asserted doubt rests on Malak s testimony that two employees said they were dissatisfied with the Union and being part of it and asked if it was going to be a good idea to have a union and Malak s further testimony that he knew another of six unit employees disapproved of union membership on religious grounds General dissatisfaction with an incum bent union and/or disinclination to be members do not evidence a clear rejection of union representation 17 For these reasons I conclude and find that by conducting the poll without a reasonably grounded doubt of the Union s continued majority status Respondent violated Section 8(a)(1) of the Act With respect to Malak s misrepresen tation to the employees that the Union had given permis sion for the poll I conclude it violated Section 8(a)(1) of the Act because it was designed to persuade employees to participate in the poll, and therefore interfered with the free exercise of their right not to participate or mdi cate whether they desired continued union representa tion I have found that Plant Manager Drake did not as the complaint alleges tell employees that Respondent would terminate temporary employees if they became involved in the Union That allegation is dismissed Respondent in its answer to the complaint raised the following affirmative defenses 15 255 NLRB 646 (1981) ' e Thomas supra 17 See e g Atlanta Hilton & Tower 278 NLRB 474 ( 1986) and cases cited therein CLEVELAND SALES CO FIRST AFFIRMATIVE DEFENSE To the extent that the matters alleged herein oc cured more than 180 days before the filing of this Complaint this action is barred by the statute of limitations SECOND AFFIRMATIVE DEFENSE The matters alleged in Case 8-CA-19718 have been settled and released Respondent fully com plied with the terms of said settlement Wherefore the Board is estopped from raising matters raised in Case 8-CA-19718 The first affirmative defense is without merit because the date of issuance of the complaint is not the control ling factor The rule that Respondent misreads is set forth in Section 10(b) of the Act as follows, in relevant part no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made All matters alleged in the consolidated complaint are supported by timely filed charges With respect to the second affirmative defense Respondent did not comply with the settlement agree ment in Case 8-CA-19718 The settlement agreement was properly set aside and the allegations of Case 8-CA- 19718 were properly and fairly litigated before me CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act 2 The Union is a labor organization within the mean mg of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act by conducting a poll of its employees union sentiments without having a reasonably grounded doubt of the Union s majority status and by telling the employees that the Union had given permission for the poll 4 By failing and refusing to bargain in good faith with the Union Respondent violated Section 8(a)(5) and (1) of the Act 5 The violations of the Act set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed18 ORDER The Respondent, Clesco Mfg Div of Cleveland Sales Co Willoughby Ohio, its officers agents, successors, and assigns shall 1 Cease and desist from 18 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 1157 (a) Coercively polling its employees concerning their union sympathies, or telling them the Union has given permission for such a poll (b) Refusing to bargain collectively in good faith with the Union as the exclusive representative of the follow mg appropriate bargaining unit All production and maintenance employees em ployed by the Employer at its plant located at 4366 Hamann Parkway, Willoughby Ohio, excluding all office clerical employees foremen and supervisors and all guards professional employees as defined in the Labor Management Relations Act as amended and all other employees of the Company (c) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request, bargain collectively and in good faith with the Union as the exclusive collective bargaining representative of its employees in the aforesaid unit and embody in a signed agreement any understanding reached (b) Post at its Willoughby Ohio facility copies of the attached notice marked Appendix 19 Copies of the notice on forms provided by the Regional Director for Region 8, after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material 19 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 or dered us to post and abide by this notice WE WILL NOT fail or refuse to bargain in good faith with Truck Drivers Local Union No 407 International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America AFL-CIO as the exclusive rep resentative of the following appropriate bargaining unit All production and maintenance employees em ployed by the Employer at its plant located at 4366 Hamann Parkway Willoughby, Ohio, excluding all 1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD office, clerical employees, foremen and supervisors and all guards, professional employees as defined in the Labor Management Relations Act as amended and all other employees of the Company WE WILL NOT coercively poll our employees regard ing their union sympathies, nor will we tell them the Union has given permission to hold such a poll WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, on request, bargain with the above named Union as the exclusive representative of all the employ ees in the above described unit concerning rates of pay wages, hours of work and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement CLESCO MFG Div OF CLEVELAND SALES Co