Texas Petrochemicals Corp.

TEXAS PETROCHEMICALS CORP. 1057 Texas Petrochemicals Corporation and Oil, Chemi- cal and Atomic Workers International Union, Local 4-227, AFL-CIO. Case 23-CA-9791 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On February 20, 1985, Administrative Law Judge Richard L. Linton issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief and a motion to reopen the record. The General Counsel and the Charging Party filed briefs in support of the judge's decision, and the General Counsel filed an opposition to the Re- spondent's motion to reopen the record.' 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, 2 and conclusions and to adopt the recommended Order, as modified.3 The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by conducting a poll of employees to determine whether they wished to continue to be represented by the Union; by failing to provide the Union with advance notice of the time and place of the poll; by with- drawing recognition from the Union; and by there- after unilaterally, without notice to or consultation with the Union, converting all bargaining unit em- ployees from hourly to salaried compensation and restructuring their insurance premiums. We agree ' The Respondent's motion to reopen the record to admit evidence is denied ; even if adduced and credited the proffered evidence would not require a result different from that which we reach here Board's Rules and Regulations , Sec. 102 48(d)(1). 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. The judge's decision contains a few inadvertent errors The last word of the second sentence of the first par. of sec 1l1,B,2 should be "OCAW," not "employees", in the last par. of sec III,B,3, Supervisor Miller is incorrectly identified as "employee", in the 10th par of sec. III,B55, the word "directly" should be "indirectly." a In sec . I11,C,2,b of his decision and in his Conclusion of Law 6, the judge found and concluded that the Respondent unlawfully refused to bargain with the Union by failing to give the Union advance notice of the time and place of the instant poll . However, the judge does not refer to this particular unfair labor practice finding in his recommended Order or notice. For the reasons discussed infra, we agree with the judge that the Respondent acted unlawfully in failing to provide the Union with ad- vance notice of the poll. Consequently, we will modify the judge's rec- ommended Order and notice to include this unfair labor practice finding. with the judge, for the reasons set forth below, that the Respondent violated the Act as alleged. A. Facts The Respondent purchased the instant plant from Petro-Tex Chemical Corporation on June 21, 1984.4 During the 2 weeks prior to the purchase, the Respondent's president, John Shelton, went through the plant to meet and evaluate employees and make job offers. According to Shelton, em- ployee C. E. Goods told him that he thought that the Union was "a thing of the past" in the plant. On another occasion, an unidentified employee re- portedly told Shelton that the Union "had not been able to tell [the employees] anything about what was going to happen or . . . to respond to their questions" about the imminent sale of the company to the Respondent. During the period June 27-July 2, following the June 21 purchase of the company by the Respond- ent, Shelton conducted a series of four meetings with separate groups of the approximately 100 unit employees. According to Shelton, employees ex- pressed their dissatisfaction with the Union at least two or three times in each meeting. Employee La- Fette and other employees are said to have re- marked to the effect that they had been trying to talk with the Union, but that it had not responded. Another comment reportedly made was "we used to have a union here; we don't anymore." Subsequently, around July 18, Shelton was told by the Respondent's supervisors that the employees did not wish to be represented by the Union. Shel- ton had earlier been advised by the Respondent's lawyer that the Respondent was a successor em- ployer and was obligated to recognize the Union unless the Respondent "had a lot of objective crite- ria" on which to base a refusal to recognize the Union. Shelton therefore informed the supervisors that they should document any comments made to them by employees pertaining to loss of employee support for the Union. According to Shelton, "I in- formed them then they needed to be specific. They should not solicit any information, but if people made comments to them they should document that and turn it over to Mr. Gebhardt in the em- ployee relations department." On July 19, the Respondent recognized the Union as the collective-bargaining representative of the Respondent's technicians in the operations, technical, and maintenance departments. There were approximately 103 employees in the unit. From July 18 through 23, there were 15 memos submitted by 10 different supervisors, reporting on 4 All dates are 1984, unless otherwise indicated. 296 NLRB No. 136 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD purported expressions of dissatisfaction with and/or opposition to the Union made by 23 different em- ployees.5 These memoranda from supervisors were ultimately funneled through Employee Relations Manager Gebhardt to President Shelton. Based on these written reports, together with similar verbal remarks reportedly made to Shelton by several em- ployees during meetings in late June and early July, Shelton conferred with the Respondent's at- torney and four departmental managers on the morning of July 26 . Thereafter, Shelton decided to conduct a poll of the employees to determine the extent of their continued support for the Union. In order to poll all four work shifts, polling was scheduled to be conducted in several sessions, during July 26 and 27. Immediately prior to the start of actual polling later that day , an employee delivered to Shelton a petition signed by 35 em- 5 Thus, Shift Supervisor Buckholt reported to Operations Manager Grimsrud that employee Fields had told him that he did not feel that the Union represented him; that he felt that the Union should give him a choice whether to be represented by the Union ; that he did not think that there were "too many men that want the Union" (quoting Fields), that he felt that the employees "should give the company a chance without the Union" (quoting Fields), and that he himself did not want the Union. Su- pervisor Robinson reported to Operations Manager Grimsrud that both Fields and employee Bryan told Robinson that they did not believe that they needed union representation . Employer Relations Manager Geb- hardt, in a memorandum for file, reported that employee George Bryant told him that in Bryant 's opinion over 80 percent of the employees did not want union representation Supervisor Rivers reported to Utilities Manager Summers, as well as to Grimsrud and Gebhardt , that employee Ramirez told him that his prounion sentiments had "just about gone away because of [the Union's] actions in this plant " Quality Control Manager Munson reported to Gebhardt that employee Mouton told him that he did not see what the Union could do for the employees and that the em- ployees had a right to do anything they wanted to do. Process Superintendent Howard reported to President Shelton that during the 2-week period between July 3-17, employees Smith , Powell, Maxwell, Bryan, and Inman all told him that they did not want union representation. Crew Supervisor Warren reported that employees Heath and Maxwell told him that they had unsuccessfully attempted to with- draw from the Union and that they did not want union representation. Warren also reported that employee Fields told him that the Union had not done anything in the past and that he did not want the Union to rep- resent him. Personnel Manager Rhodes reported to Gebhardt that em- ployee Bezdeck told him that the Union had not done anything for him, and that he wanted to cancel his dues-checkoff authorization Rhodes also reported to Gebhardt that employee Dancy told him that no one in the 12-employee laboratory was interested in union representation Supervisor Rivers reported to Utilities Manager Summers , Operations Manager Grimsrud , and Employee Relations Manager Gebhardt that em- ployee Heald told him that as long as the Respondent was honest he wanted no union at the plant Rivers also reported that employee Garrett told him that he felt that the Union had abandoned him Quality Control Manager Munson reported to Gebhardt that employee LaFette told him that he thought that there were only five or six employees in the plant who wanted the Union to represent them . Process Superintendent Howard reported to President Shelton that employees Davis , Hoover, Smith, Eggers, and Wallace told Crew Supervisor Warren that they did not want union representation Unit Supervisor Dickson reported to Process Superintendent Lewis that employee Gillen told him that as far as he was concerned the Union could "take the same shaft that he had received from them," while Gillen simultaneously (according to Dickson) "exposed his middle finger in an upright position ." Finally, Dickson also reported to Lewis that employee Layton told him that he had paid sever- al thousand dollars to the Union and had received essentially nothing in return, and that Layton said that "we don't need the Union again " ployees,6 stating that the signers were aware that the Union claimed to represent a majority of the Respondent's employees, and stating: Under present conditions we feel union repre- sentation is no longer necessary, and would prove to be a detriment in many areas. We therefore request that a vote be taken of all hourly employees to substantiate [the Union's] claim of representation. There were 103 employees eligible to vote in the poll. The voters were able to vote yes or no to the question "Do you want [the Union] to represent you at Texas Petrochemicals Corporation ." There were 35 yes votes and 50 no votes; 1 ballot was void.? On July 27, the Respondent gave written notifi- cation to the Union and the employees that the latter had voted not to have the Union represent them, and that, accordingly, the Respondent was withdrawing its recognition of the Union. On or about August 1 , the Respondent unilater- ally, without notice to or consultation with the Union, converted all employees in the unit from hourly wages to a salary, and also restructured their insurance premiums. B. Analysis and Conclusions 1. Polling The judge concluded that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by conducting the instant poll because its asserted reasons for doing so, considered individually and jointly, did not constitute sufficient objective considerations on which to base a reasonable doubt of the Union's majority status. We agree. First, we agree with the judge's analysis and de- termination that Shelton's testimony about employ- ee verbal reports of dissatisfaction with the Union was not reliable. Second, we find the Respondent's purported reliance on the supervisors' written re- ports of employee dissatisfaction with the Union to be unavailing. We find that these reports do not constitute sufficient objective considerations on which the Respondent could base a reasonable doubt about the Union's continued majority status. We note particularly that less than a quarter of the unit employees are named in these reports (23 out 6 Of the 35 employees who signed this petition, 8 were among the 23 specifically named employees who had previously been reported to the Respondent in the above-discussed memoranda as being dissatisfied with the Union. 7 There is no allegation that the manner in which the poll itself was conducted was improper. As to turnout, the record does not establish how many, if any , of the 17 eligible employees who did not vote were absent from the plant at the time of the polling , or were present but simply did not participate in the polling TEXAS PETROCHEMICALS CORP. 1059 of approximately 103 employees in the unit at the time in question) and that (as the judge found in secs. III,B,3 and 4 of his decision) many of the statements attributed to the relatively few employ- ees named in these reports do not clearly express a desire to discontinue representation by the Union. Some of these reports contain weak or, at best, am- biguous statements and complaints about what was perceived by a relatively few employees to be ad- ministrative and communicative shortcomings on the part of the Union . Assuming, arguendo, that these written reports were correctly admitted into evidence, a number of them fall short of objective considerations on which the Respondent could le- gitimately base a reasonable doubt about the Union's continued majority status.8 Thus, they do not serve to legitimize the Respondent 's polling of its employees about their support for the Union. Nor can the 35-employee antiunion petition sub- mitted to Shelton just prior to the start of polling be said to constitute an objective consideration in justification of the poll. Even though, in the strict- est sense, Shelton was aware of this petition mo- mentarily before the actual start of polling , the pe- tition itself, representing as it did the sentiments of only one-third of the unit employees , was not in- dicative of a loss of majority support for the Union, and could not effectively constitute an ob- jective basis for the Respondent's asserted doubt of the Union's majority status.9 Accordingly, we conclude, in agreement with the judge, that the Respondent unlawfully polled its employees about their continued support for the incumbent Union, because it did not have the pre- requisite reasonable doubt, based on objective con- siderations, about the Union's continued majority status. same standard for determining whether an employ- er may petition the Board for a Board -conducted election under Section 9 (c)(1)(B) of the Act (i.e., an RM election) to ascertain the continued majori- ty status of an incumbent union ."' It is also the same standard for determining whether an employ- er may legitimately withdraw recognition from a union. 12 In applying this standard , we are mindful that three circuit courts of appeals have rejected the Board's "reasonable doubt" standard in the polling context.' 3 After careful consideration of the rea- soning of the courts in these cases, we have decid- ed, for the reasons set out below , respectfully to adhere to the "reasonable doubt" standard for poll- ing. 24 In NLRB v. A. W. Thompson, the Fifth Circuit (where the instant case arises), noted that the Board's standard for when an employer may law- fully poll its employees about their continued sup- port for an incumbent union is the same as the Board's standard for when an employer may law- fully withdraw recognition from an incumbent union . The court was skeptical about the validity of what it perceived to be a prohibition against an employer polling its employees about their contin- ued support for an incumbent union until the em- ployer has sufficient objective evidence to justify an outright withdrawal of recognition, without "need" for a poll . In the court's view, polling could be a useful and legitimate tool when an em- ployer's sincere doubt about a union 's continued majority status was based on objective evidence which fell short of that needed to justify withdraw- al of recognition. Therefore, the court held that when an employer has not engaged in unfair labor 2. Standard for polling In accordance with established Board precedent, we have applied the "reasonable doubt" standard to determine whether the Respondent could legiti- mately poll its employees about their continued support for the incumbent Union.' 0 This is the 8 See, e g., Destileria Serralles, 289 NLRB 51 (1988), Louisiana Pacific Corp., 283 NLRE( 1079 ( 1987), enfd. 858 F.2d 576 (9th Cir. 1988); Bryan Memorial Hospital, 279 NLRB 222 (1986), enfd 814 F.2d 1259 (8th Cir 1987); KBMS. Inc., 278 NLRB 826 (1986), Redok Enterprises, 277 NLRB 1010 (1985) See generally Cornell of California, 222 NLRB 303 ( 1976), enfd 577 F.2d 513 (9th Cir 1978) In light of the substantive shortcomings of the supervisory written re- ports, we find it unnecessary to pass on the judge's discussion of the pro- priety of his admission of these reports into evidence. e Tile, Terrazzo & Marble Contractors Assn., 287 NLRB 769 (1987); KEZI-TV, 286 NLRB 1396 (1987). 10 Hajoca Corp., 291 NLRB 104 (1988), enfd. 872 F.2d 1169 (3d Cir. 1989), Howard M. Howes, Inc, 290 NLRB 967 (1988); Thomas Industries, Inc, 255 NLRB 646 (1981 ), enf denied in relevant part 687 F.2d 863 (6th Cir. 1982), Montgomery Ward & Co., 210 NLRB 717 (1974) " United States Gypsum Co, 157 NLRB 652, 656 (1966). 12 NLRB Y. A. W. Thompson. Inc., 525 F 2d 870, 871 (5th Cir 1976) See also, e g , I T Corp, 263 NLRB 1183, 1184 ( 1982), and cases cited therein, Westwood Import Co, 251 NLRB 1213, 1214 (1980), and cases cited therein , Cain's Generator & Armature Co, 237 NLRB 1198, 1200 (1978), and cases cited therein 's Forbidden City Restaurant v. NLRB, 736 F 2d 1295 (9th Cir 1984); Thomas Industries v. NLRB, 687 F.2d 863 (6th Cir. 1982), NLRB Y. A W Thompson. Inc, 651 F 2d 1141 (5th Cir 1981 ) However, the Third Cir- cuit Court of Appeals, in Hajoca Corp Y NLRB, 872 F.2d 1169 (1989), affirmed the Board's finding that the employer failed to establish that it had a reasonable doubt that the Union still had majority support in deter- mining that the employer in that case unlawfully polled its -employees about their continued support for an incumbent union In any event, however, in stating its basis for enforcing the Board 's remedial order, the court found, as did the Board in the underlying proceeding in Hajoca, that the polling was unlawful under either the Board's standard or the less stringent standard for polling applied by the three circuit courts in question, as discussed in full below 872 F.2d at 1176, fn 1. 14 We note in agreement with our concurring colleague that under either the Board's "reasonable doubt" standard or the lesser standard ad- vocated by the three circuits which have expressed disagreement with the Board in this area, that the evidence submitted by the Respondent in this case to establish reasonable doubt did not meet the requirements of either standard 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD practices or otherwise created a coercive atmos- phere, it may, after giving notice to the union, poll the employees about their union sentiment if there is substantial, objective evidence of a loss of union support, even if that evidence is not sufficient by itself to justify withdrawal of recognition.15 The court viewed this test as a reasonable accommoda- tion of the employer's interest in testing the union's support and the Board's interest in preventing re- peated polls which themselves can be coercive. The court stressed that in order to justify a poll, there must be substantial, objective evidence of a loss of at least some support for the union , albeit not necessarily majority support. The court theo- rized that the test it had posited might prevent unfair labor practices and reduce the need for Board and court involvement in collective -bargain- ing disputes, by avoiding the situation in which an employer must risk unfair labor practice charges by withdrawing recognition to find out whether the evidence of loss of support is sufficient to justify withdrawal; under the court's test, an employer faced with substantial evidence of a loss of some support for the union could lawfully conduct a poll to determine the union's actual level of support.16 We respectfully disagree with this analysis of the issue. It is true that the Board's "reasonable doubt" standard for employer polling is the same as its standard for withdrawal of recognition, and that this similarity does present what at first blush ap- pears to be the anomaly that an employer cannot conduct a poll until it has acquired sufficient evi- dence to make a poll unnecessary, i.e., sufficient evidence to withdraw recognition, without "need" for a poll. We believe, however, that careful analy- sis of the statutory goal of employee free choice and of Section 9(c)(1)(B) (i .e., employer-initiated petitions, commonly referred to as RM petitions) establishes that there is no anomaly in our policy. The similarity of purposes and potential conse- quences of employer-conducted polls and employ- er-initiated, Board-conducted RM elections sug- gests that we apply similar standards for determin- ing when such polls and elections may be conduct- ed. Indeed, it is the relative informality of employ- er-conducted polling, in contrast to the strict pro- 1s The court also required that in order to be noncoercive and proce- durally fair, any such polling would have to be conducted in accordance with the guidelines set forth for precertification polling in Struksnes Con- struction Co. 165 NLRB 1062 (1967), i.e, (1) the purpose of the poll is to determine whether the union enjoys majority support ; (2) the purpose is communicated to the employees , (3) assurances against reprisals are given; (4) the employees are polled by secret ballot , and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. 16 651 F 2d at 1144-1145 The Fifth Circuit's "loss of support" stand- ard has been adopted by the Sixth and Ninth Circuits in Thomas Indus- tries Y. NLRB and Forbidden City Restaurant v. NLRB, supra, respective- ly. cedural formality of Board-conducted RM elec- tions, that requires the prerequisite standard for polling to be at least as stringent as that for RM elections. It is only through the application of such a comparably stringent standard for polling that the dual goals of collective-bargaining stability and employee free choice can be protected in this rela- tively informal context. a. Similarity of purpose and of potential consequences The Board has long held that RM elections, em- ployer polls, and withdrawals of recognition all re- quire as an evidentiary prerequisite a showing of sufficient objective considerations on which an em- ployer could base a reasonable doubt about a union's continued majority status; this is the Board's "reasonable doubt" standard. It was care- fully developed because the purposes of RM elec- tions and employer polls, and the potential conse- quences of them as well as of withdrawals of rec- ognition, are the same. The purpose of RM elec- tions and employer polls is to determine whether an incumbent union still has majority support; their potential consequence , as well as that of withdraw- al of recognition, is loss of recognition and stand- ing as collective-bargaining representative for the union, and loss of representation for the employees. In light of these similarities of purposes and poten- tial consequences, it is appropriate and necessary that the evidentiary predicates for these actions be both stringent and identical . It would be anomalous to on one hand require an employer to show suffi- cient objective considerations on which to base a reasonable doubt about an incumbent union's ma- jority support in order to have a formal, Board- conducted RM election for the purpose of deter- mining the union's majority support, while on the other hand permitting that same employer to con- duct an in-house, relatively informal poll for the same purpose, with the same serious potential con- sequences for the union and the employees, on the basis of a significantly less stringent evidentiary predicate, i.e., the courts' "loss of support" stand- ard. Under the courts' approach, an employer would be permitted to withdraw recognition from an incumbent union in reliance on the results of an in-house poll which itself did not meet either the evidentiary predicate (reasonable doubt of majority status) or procedural safeguards required for Board elections conducted for the same purpose under Section 9(c)(1)(B) of the Act. Rather than permit an employer unilaterally to subject a collective-bar- gaining representative to an in-house test of strength under circumstances where the Board itself would refuse to conduct such a test, the TEXAS PETROCHEMICALS CORP. 1061 Board requires at least as stringent an evidentiary loss-of-support predicate for an employer-conduct- ed in-house election as that which is required for a Board-conducted election. The Board's statements made over 23 years ago in U.S. Gypsum, supra, establishing the "reasonable doubt" standard as the evidentiary prerequisite for a Board-conducted RM election, continue to be equally applicable to the question of what standard should be required for an employer poll: [T]he legislative history states clearly that Sec- tion 9(c)(1)(B) was designed to give relief to those employers who have "reasonable grounds for believing" that a union making a claim is not really the choice of the majority. There is no indication that Congress in enact- ing that section contemplated the creation of a device by which an employer acting without good faith doubt of the union's [majority] status could disrupt collective bargaining and frustrate the policy of the Act favoring stable relations.17 As with RM elections, so too with employer polls, which share the same purpose and serious potential consequences. While we require, then, that employer polls be predicated on the same evidentiary basis as Board- conducted RM elections, we do not go so far as to require that such polls be conducted with the same extensive procedural formalities as those that ac- company Board elections . "' To impose such proce- dural requirements on in-house employer polls would, in all likelihood, effectively do away with such polls-a result which we do not seek. While we favor reliance on a Board -conducted RM elec- tion rather than an employer's own in-house poll, we nevertheless acknowledge an employer's right to conduct such a poll on the basis of a reasonable doubt about an incumbent union's majority status. Although some procedural refinements must be foregone in the interest of effectively preserving an employer's right to poll, we shall nevertheless re- quire, at a minimum, that an employer provide the union with reasonable advance notice of the time and place of the poll, and that the poll itself be " 157 NLRB at 656 (fns . omitted , emphasis supplied) 18 The Board's extensive procedures for the conduct of representation elections, including RM elections conducted under Sec . 9(c)(1)(B), are set forth in detail in the Board 's Casehandling Manual for Representation Proceedings (Part Two), secs 11300-11350 In addition to the general oversight expertise provided by the Board as a neutral party , some of the more significant other procedural safeguards of Board elections that are unlikely to be found in employer polls are voter eligibility lists ; posted election notices; reasonable periods of time for discussion of issues and campaigning; election observers from all participating parties; procedures to challenge voter eligibility, procedures to file exceptions to the election or to conduct affecting the results of the election. conducted in accordance with the procedural safe- guards set forth in Struksnes Construction Co., supra.19 b. Statutory purposes and goals A principal purpose and ultimate goal of the Act is to promote industrial and workplace stability in collective-bargaining relationships.20 The Board's "reasonable doubt" standard for polling is more consistent with this purpose than the "loss of sup- port" standard. In order to preserve industrial and bargaining stability, an incumbent union enjoys an irrebuttable presumption of majority support for 1 year follow- ing certification . 2 1 This presumption remains in effect during the term of a collective-bargaining agreement, and thereafter becomes rebuttable, on a showing of actual loss of majority support for the union, or a showing of reasonable doubt on the part of the employer, based on sufficient objective considerations, that the union continues to enjoy majority support.22 Where an employer has suffi- cient objective considerations on which to base a reasonable doubt about a union's continued majori- ty status, but might not wish to test the accuracy of that doubt directly by withdrawing recognition from the union, the Board holds that the employer may petition for a Board-conducted RM election under Section 9(c)(1)(B), or poll its employees about their union sentiments. The Board's "reasonable doubt" standard for polling is well-settled . It makes a poll neither easier nor more difficult to justify than a Board -conduct- ed election. By contrast, the courts' less stringent "loss of support" standard permits an employer to conduct a poll where the Board would not conduct an election and could thus lead employers to poll their employees about their support for an incum- bent union where there is a reduced likelihood that the poll will establish an actual loss of majority support. But polling employees about their contin- ued support for an incumbent union is itself poten- tially, if not inherently, both disruptive of the col- lective-bargaining relationship between an employ- er and a union and also unsettling to the employees involved. Submitting a union's role as representa- tive to an employer-initiated and conducted em- 19 We have accepted the general adequacy of the Struksnes procedural safeguards for employer-conducted polls of employees where the em- ployer has a reasonable doubt about an incumbent union 's continued ma- jority status See Hohn Industries, 283 NLRB 71 ( 1987); see also Hajoca Corp, 291 NLRB 104 (1988), enfd 872 F 2d 1169 (3d Cir. 1989). 20 Ray Brooks v. NLRB, 348 U.S. 96, 103 ( 1954); NLRB Y Haberman Construction Co, 618 F.2d 288, 312 (5th Cir 1980), reversed in part on other grounds on rehearing en banc , 641 F 2d 351 (5th Cir 1981). $1 Ray Brooks v NLRB, supra, 348 U.S. at 103-104 22 NLRB v A. W. Thompson, Inc, supra, 525 F 2d at 871 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee referendum raises simultaneously a chal- lenge to the union in its role as representative and a doubt in the mind of an employee as to the union's status as his bargaining representative. The courts have recognized the potentially disruptive and unsettling effects of such polls, 23 and yet the courts that apply the "loss of support " standard for polling have expanded the range of circumstances under which employees could be subjected to such potentially disruptive polling . Increasing the poten- tial for such polling through application of the lesser standard would, in our view, allow an em- ployer's interest in testing its employees' support for a union24 to outweigh the statutory goal of stable collective-bargaining relationships. We be- lieve that a more effective balance of competing policies is achieved through the use of the more re- strictive "reasonable doubt" standard for polling employees about their continued support for an in- cumbent union. By thus reasonably limiting the range of circumstances under which an employer may lawfully conduct such polls, the potential for disruption of collective-bargaining relationships is limited, without unreasonably impairing either an employer's practical interest in finding out the actual measure of current employee support for an incumbent union or the employees' right freely to choose whether or not to be represented .25 We recognize, of course, that an employer has legitimate interests in avoiding continued recogni- tion of an incumbent union that no longer has the support of a majority of the employees it represents and, vice versa, in avoiding withdrawal of recogni- tion from an incumbent union that still does have such majority support. However, the weight of an employer's interest in testing to see if an incumbent union in fact still has majority support, so as to avoid either of these situations, is counterbalanced by the well-settled presumption that an incumbent union continues to have the support of a majority of the employees which it represents . Although 23 Hajoca Corp Y. NLRB, supra, 872 F.2d at 1173; NLRB v. A. W. Thompson, supra, 651 F 2d at 1144, Thomas Industries Y. NLRB, supra, 687 F 2d at 869; Forbidden City Restaurant v. NLRB, supra, 736 F.2d at 1298 (minimally disruptive). 24 All three of the courts that have rejected the Board's "reasonable doubt" standard for polling have either articulated or clearly implied the existence of such an employer interest NLRB Y A. W Thompson, supra, 651 F 2d at 1145 , Thomas Industries Y. NLRB, supra, 687 F 2d at 866-867; Forbidden City Restaurant Y. NLRB, supra, 736 F.2d at 1298. 25 We note that in subscribing to the "loss of support" standard for polling, the Sixth Circuit in Thomas Industries Y. NLRB, supra, stated that it did not intend to promote or encourage employer polls ; "To the con- trary, such polls are not favored because of their potential for disrupting the bargaining process " 687 F 2d at 869 The court went on to note that the preferable course for an employer who has doubts as to the continu- ing majority status of an incumbent union is to file a decertification peti- tion, although (according to the court) that might not be a viable alterna- tive in some cases because the Board will not process such petitions if unfair labor practice charges are pending . Id. at fn. 3 (citations omitted). this presumption is rebuttable , unless and until it is rebutted it effectively insulates an employer against an allegation that it is unlawfully recognizing a mi- nority incumbent union, and it also effectively re- lieves an employer of any obligation it might feel to withdraw recognition from an incumbent union whose majority support is doubted by the employ- er. Under the statutory scheme of bargaining obli- gations, therefore, there is no compelling need for an employer with doubts concerning the majority status of its employees' selected representative to test the actual extent of support for the representa- tive. Consequently, an employer's interest in testing the actual extent of employee support for an in- cumbent union is not, in our view, a fundamental interest which outweighs the statutory goal of sta- bility in collective-bargaining relationships. 26 Apart from a legal interest in avoiding unlawful continued recognition or unlawful withdrawal of recognition, an employer who has received evi- dence of a loss of majority support for an incum- bent union may also have an economic interest in testing that evidence, either because as a matter of business policy (regardless of legal obligations) it does not wish to continue to recognize a represent- ative its employees may no longer support, or be- cause it would prefer not to be encumbered by a collective-bargaining relationship and sees a poten- tially lawful way of ending the relationship. But in neither instance do the interests at stake warrant the unnecessary injection of instability into collec- tive-bargaining relationships. Section 8(a)(2) of the Act protects employees against the imposition of minority representation and Section 9(c)(1)(A)(ii) provides a means for them to rid themselves of an incumbent representative that is no longer support- ed by the majority (i.e., a decertification election upon a petition for same supported by at least 30 percent of the unit employees). On balance, then, we believe that the courts' less stringent "loss of support" standard for polling is not warranted by the balancing of the various em- ployer, employee, union, and statutory interests at stake. Rather, we find that the "reasonable doubt" standard more effectively promotes the statutory goal of stability in collective-bargaining relation- ships, without interfering with the equally impor- tant statutory right of employees to choose for themselves whether or not to be represented for purposes of collective bargaining , and also without substantially impairing the legitimate interest an employer might have in finding out the actual 26 See N. T Enloe Memorial Hospital Y. NLRB, 682 F 2d 790, 793-794 (9th Cir. 1982), enfg 250 NLRB 583 ( 1980). TEXAS PETROCHEMICALS CORP. measure of employee support for an incumbent union. c. "Reasonable Doubt" standard not anomalous We do not agree with the apparent view of cer- tain courts that the "reasonable doubt" standard amounts to an ill-advised or illogical prohibition or constraint against polling . We are aware that the Fifth Circuit has stated that our standard "repre- sents, in practical effect , an outright ban on em- ployer-sponsored polls of employee sentiments in regard to a certified union, 1127 and that the Sixth Circuit has criticized our standard on the grounds that "an employer would only be allowed to take a poll under circumstances where no poll was neces- sary; the only value of the poll would be to double-check the employer's already sufficient evi- dence to refuse to bargain. 28 We respectfully differ with these views. We emphasize that the "reasona- ble doubt" standard neither prohibits nor renders meaningless an employer's polling of employee sen- timents regarding a recognized representative. Rather, it provides an employer with a clear choice. Although under this standard an employer necessarily must have a reasonable doubt about the union's continued majority status , and could, on the strength of that doubt, withdraw recognition, there still remains an inherent uncertainty about whether the union has actually lost its majority sup- port; it may well continue to have it. Rather than simply withdraw recognition from a union that might still in fact have majority support, an em- ployer may wish first to poll its employees to obtain more certain, precise information about the union's support than is provided by its own reason- able doubt. The employer can then act with confi- dence and certainty in light of the results of the poll. There may be other sound business reasons for why an employer with a reasonable doubt about a union's continued majority status may nevertheless decide to poll the employees rather than withdraw recognition. The employer may wish to resolve the representational issue more quickly , or reduce the risk of a postwithdrawal recognitional strike, or minimize damage to the collective-bargaining rela- tionship and demonstrate good faith to its employ- ees. Thus, we do not think that polling under the "reasonable doubt" standard is an anomaly or a useless exercise. 87 NLRB Y. A. W. Thompson. Inc., supra, 651 F2d at 1144, see also Forbidden City Restaurant Y NLRB, supra, 736 F 2d at 1297-1298 28 Thomas Industries v NLRB, supra, 687 F 2d at 867; see also Forbid- den City Restaurant Y. NLRB, supra, 736 F 2d at 1297. 1063 d. Conclusion We have attempted here to respond to the con- cerns raised by the circuit courts which have not accepted our standard for determining when an employer may lawfully poll its employees about their continued support for an incumbent union. In doing so, we have explained our standard in light of both statutory policies and industrial practicali- ties. In the final analysis, we believe that our stand- ard most effectively accommodates the divergent policy and practical interests at stake in this con- text. In addition to these considerations, we also hope that our discussion and analysis of this issue will supply the courts with a more satisfactory basis on which to assess our future decisions in this difficult area. 3. Advance notice of polling We agree with the judge , for the reasons he dis- cusses in the final three paragraphs of section III,C,1 of his decision, that the Respondent also in- dependently violated Section 8(a)(5) and (1) of the A :t by failing to provide the Union with advance notice of the time and place of the instant poll. As noted by the judge, the Board has not hereto- fore imposed an "advance notice" requirement on employer-conducted polls taken to determine whether an incumbent union continues to have the support of a majority of the employees it repre- sents. Two of the circuit courts-the Fifth and the Ninth-that have rejected the Board's more strin- gent "reasonable doubt" standard for such polling have nevertheless imposed an "advance notice" re- quirement on polls conducted under the otherwise less restrictive "loss of support" standard. It is appropriate to require employers to provide unions with reasonable advance notice of such polls. Although the Struksnes procedural safe- guards set forth above otherwise provide adequate protection to employee free choice in such polls, they do not require that the union be provided with advance notice of the polling. The Struksnes guidelines were initially developed, and are most often applied, in situations where a nonincumbent union is engaged in an initial organizing campaign, seeking to represent the employees in question. Under such circumstances, an employer confronted with such an organizational campaign and demand for recognition may be willing voluntarily to rec- ognize the union without waiting for a Board-con- ducted election , if the employer can satisfy itself that the union actually represents a majority of the employees. However, at the time of such a poll, the union will ordinarily have been in close, con- tinuing, active contact with the employees, publi- 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cizing and promoting its position on what it per- ceives to be the issues of current concern to the employees. Moreover, even if the results of such a poll are unfavorable to the union , it is not thereaf- ter deprived of its entitlement to a Board-conduct- ed election on a sufficient showing of interest. Thus, at least arguably,29 advance notice to the union of such a poll is less critical , substantively and procedurally, than it is to an incumbent union under the instant type of circumstances, where such a union could be legitimately stripped of rec- ognition as collective-bargaining representative based on the results of such a poll. The potential for such an adverse final effect of a poll under the instant circumstances is an important reason to impose an advance notice requirement on an em- ployer who is planning to conduct such a poll.30 Moreover, imposition of a procedurally stringent requirement that an employer provide a union with reasonable advance notice of such polls is consist- ent with our imposition, fully discussed above, of the substantively more stringent "reasonable doubt" standard for conducting such polls in the first place. Accordingly, we conclude that the Respondent's poll of employees about their continued support for the Union violated Section 8(a)(5) and (1) of the Act as alleged not only because, as discussed in the preceding section of this decision , the Respondent did not have a reasonable doubt, based on objec- tive considerations, that the Union continued to have the support of a majority of the employees, but also because the Respondent failed to provide the Union with reasonable advance notice of the time and place of the poll. 4. Withdrawal of recognition We have concluded above that the supervisors' written reports of employee dissatisfaction with the Union and the 35 -employee antiunion petition did not constitute sufficient objective considerations on which the Respondent could base a reasonable doubt about the Union's continued majority status, 29 As the instant case does not involve a nonincumbent union which is seeking initial recognition, it does not raise a question about the need for or propriety of advance notice to a nonincumbent union of an employer- conducted poll taken to determine the extent of employee support for that union 30 Indeed, as the judge points out, the facts in the instant case illustrate the appropriateness of imposing an advance notice requirement on em- ployer-conducted polls. The percentage of eligible employees who voted in the poll was 83 percent (86 of 103 unit employees), with a tally of 35 for continued representation by the Union , 50 against, and I void ballot Nevertheless, in the context of no advance notice of the poll from the Respondent to the Union , 17 unit employees, for reasons not shown in the record, did not vote. Had all of them, or even all but one, validly voted in favor of continued representation by the Union, the result of the poll would have been a narrow vote for continued representation , rather than the rejection of continued representation shown by the instant no- notice poll. for purposes of justifying the Respondent's poll.31 For the same reasons, we conclude that these fac- tors do not justify the Respondent's subsequent withdrawal of recognition. Nor, of course, can the Respondent rely on the results of the poll as an ob- jective consideration, because the poll itself was an unfair labor practice, establishing an unlawful con- text for withdrawal of recognition. Accordingly, we agree with the judge that the Respondent's withdrawal of recognition violated Section 8(a)(5) and (1) of the Act.32 5. Unilateral changes We agree with the judge, for the reason he set forth in section III, C, 2, d of his decision, that, fol- lowing its unlawful withdrawal of recognition from the Union, the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally, without notice to or consultation with the Union, converting all bargaining unit employees from hourly to salaried compensation and restructuring their insurance pre- miums. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Texas Petrochemicals Corporation, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Refusing to bargain with the Union as the exclusive bargaining representative of all the em- ployees in the unit described below by failing to provide the Union with reasonable advance notice of the time and place of polls of unit employees taken for the purpose of determining their desire for continued representation by the Union; by con- ducting unlawful polls for such purpose; by unlaw- fully withdrawing recognition from the Union; and by making unilateral changes in terms and condi- tions of employment without first providing the Union with notice of an opportunity to bargain about such changes." 2. Substitute the following for paragraph 2(b). 31 In reaching this conclusion we note that even if the comments re- ported by the supervisors evidencing 23 employees ' dissatisfaction with the Union were counted in combination with the petition signed by 35 employees, this would be insufficient to support a reasonable doubt about the Union's continued majority status. In this regard we note that eight employees who were among the sources for the supervisors ' reports were also signers of the petition . Thus, even assuming that the reports could be relied on as substantive evidence of a desire not to be represented by the Union, the fact remains that less than a majority of the employees had expressed a desire not to be represented by the Union 32 Hajoca Corp . supra, Howard M Howes Inc, 290 NLRB 967 (1988) TEXAS PETROCHEMICALS CORP. "(b) On request by the Union reinstate any terms of employment existing when recognition was withdrawn from that labor organization as the bar- gaining representative of the employees in the above unit, and make whole those employees, with interest, for any losses they may have suffered as a result of the Respondent's unlawful changes from hourly to salaried compensation and in structuring of insurance premiums. Any money owed under the terms of this Order is to be computed in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), with interest thereon to be com- puted in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), except that any interest accrued prior to January 1, 1987, shall be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). Nothing herein shall be construed as requiring rescission of any benefits which previously have been granted to unit employees." 3. Substitute the following for paragraph 2(d). "(d) Post at its Houston, Texas plant, copies of the attached notice marked "Appendix."33 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material." 4. Substitute the attached notice for that of the administrative law judge. CHAIRMAN STEPHENS , concurring. I generally agree with the Courts of Appeals for the Fifth, Sixth, and Ninth Circuits' that, at least so long as Board law permits an employer to with- draw recognition from an incumbent union on a basis other than the union 's loss of an employee-ini- tiated decertification election , the standard for per- mitting an employer to take the grave step of with- drawing recognition should be more rigorous than the standard for permitting an employer to deter- mine in a noncoercive manner whether its objec- tively based grounds for concluding that the union has suffered a significant loss of support in fact re- flect an actual loss of majority. My differences with my colleagues concerning the appropriate legal tests do not, however, dictate a different result in this case . I would find that the i Forbidden City Restaurant v. NLRB , 736 F.2d 1295 (9th Cir 1984); Thomas Industries Y. NLRB , 687 F 2d 863 (6th Cir 1982); NLRB Y. A W Thompson. Inc, 651 F.2d 1141 (5th Cir 1981) 1065 evidence relied on by the Respondent here would not meet even the lesser standard that I would apply for polling by the employer. As the statement of facts in the opinion of the majority reveals, at the time the Respondent an- nounced to its employees that it would be polling them to determine whether a majority of the unit supported the Union, the Respondent had evidence that 23 out of 103 unit employees made statements indicating either that they did not want union rep- resentation or that they were critical of the Union's performance. Beyond that, the evidence consisted of statements of opinions by some employees that other employees felt this way too. Because it is human nature to want to believe that others share one's opinion and because of the very real possibili- ty that these unidentified "other employees" consist largely of the employees who are already being counted as antiunion, I would not place much cre- dence in opinions about the sentiment of unidenti- fied others as representing significant additional evidence of lack of union support.2 In finding the evidence here insufficient to justify an employee poll, I note that the Sixth Circuit (the only court of the three mandating a dual standard which actually found evidence meeting the less rig- orous test for polling)3 particularly noted that more than one-third of the employees had made statements manifesting lack of support for the union. While I would not necessarily subscribe to all of the Sixth Circuit's reasons for concluding that its standard was met there (particularly its reli- ance on revocation of dues checkoff), I do think that the one-third figure is a significant one for de- termining what, at a minimum, should be required for polling by an employer. We will not run a Board decertification election unless 30 percent of the unit employees are willing to place their names on a list of those who wish to repudiate the union. I see no reason to allow an employer to run its 2 In this regard , I note several examples in this case of multiple reports of the antiunion sentiments of a single employee . Thus, after supervisors were instructed to watch for and document evidence of union disaffec- tion, employee Bryan turned up in the reports of both Supervisor Robin- son and Process Superintendent Howard , employee Smith was reported as antiunion by Howard and Crew Supervisor Warren, and employee Fields was singled out as antiunion by Robinson , Warren, and Shift Su- pervisor Buckholt Had these supervisors simply reported numbers of an- tiunion employees without names, Fields might have been counted three times. 8 The Ninth and Fifth Circuits both remanded the cases to the Board for application of the lesser standard to determine whether polling was justified I note that the Sixth Circuit was mistaken about the substance of the Board's standard for reasonable good-faith doubt of majority, the court appeared to believe that the "good faith doubt" test was no differ- ent from the "actual loss of majority" test, because it stated that the Board took the position "that an employer must set forth objective evi- dence establishing that over 50 percent of the affected employees have reject- ed the incumbent union as their representative before the employer may take a poll." Thomas Industries, supra, 687 F.2d at 867 (emphasis added). 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD own inhouse election on a lesser showing, particu- larly when, as here, the employer's supervisory force has been on the lookout for every possible sign of disaffection from the union .4 Thus, even if I were to agree with the Respondent that all the quoted statements by the 23 identified employees could be taken as a desire not to be represented by the Union,s I would not find that the Employer's objective considerations justified a poll. Finally, I agree with my colleagues that the peti- tion containing the names of 35 employees dis- claiming any desire for union representation-- which was handed to John Shelton, the Respond- ent's president, after he had addressed the first group of employees to be polled-could not retro- actively justify a polling decision the Respondent had already made and announced to employees. 4 If, in fact , antiunion sentiment was as strong and widespread as the Respondent suggests, the most activist antiunion employees should have been able to collect the names of 30 percent of the unit to submit to the Board for a decertification election There was no contract in effect that would bar such an election x The judge counted only 18 employees as expressing (according to su- pervisors' reports) the view that they did not want union representation I agree with the judge and my colleagues that some of the statements relied on by the Respondent-e g, employee Chism 's statement that he thought the Union no longer existed at the plant, which could easily co- exist with a desire for active union representation --did not clearly show a desire to have no union I note also that at least some of the expressions of disaffection from the Union occurred here during the period after the Respondent had pur- chased the plant but before it had recognized the Union As the Supreme Court observed in Fall River Dyeing Corp v NLRB, 482 U.S 27, 39-40 (1987), unions are especially vulnerable during the period that immediate- ly follows a change of employers, and some employees , reacting to the uncertainties of the situation, may "be inclined" during that period to "shun support for their former union " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with the OCAW as the bargaining representative of the bargaining unit employees by failing to provide the OCAW with reasonable advance notice of the time and police of polls of unit employees taken for the pur- pose of determining their desire for continued rep- resentation by the OCAW, by conducting unlawful polls of such unit employees concerning their desire for union representation, by unlawfully with- drawing recognition from the OCAW, or by making unilateral changes without giving notice to or bargaining with the OCAW. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request , bargain col- lectively with Oil, Chemical and Atomic Workers International Union, Local 4-227, AFL-CIO, as the exclusive bargaining representative of all employ- ees in the following appropriate bargaining unit and, if an understanding is reached, embody such understanding in a signed agreement: INCLUDED: All Operations Department technicians, Technical Department laboratory technicians, Maintenance Department techni- cians (machinist) and Maintenance Department technicians (instrument). EXCLUDED: All other employees, includ- ing shift supervisory employees, executive, ad- ministrative and professional employees, cleri- cal employees, technical employees and safety employees. WE WILL, on request of the OCAW, reinstate any terms of employment existing prior to the time we unlawfully withdrew recognition from it as the bargaining representative of the employees in the above unit, and WE WILL make you whole, with in- terest, for any losses that you may have suffered by virtue of those changes. However, nothing herein shall be construed as requiring rescission of any benefits which we granted to you after withdraw- ing recognition from the OCAW. TEXAS PETROCHEMICALS CORPORA- TION Robert S. Breaux, Esq., for the General Counsel. Samuel E. Hooper, Esq. and James M. Neel, Esq. (Neel, Hooper and Kalmans), of Houston, Texas, for the Re- spondent. Patrick M. Flynn, Esq. (Watson, Flynn and Bensik), of Houston, Texas, for the Charging Party. TEXAS PETROCHEMICALS CORP. 1067 DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This is a withdrawal of recognition case . After initially meet- ing with the Union, the successor employer conducted a poll of bargaining unit employees . Based on the poll's re- sults, and on other factors, the successor employer with- drew recognition of the Union and thereafter made uni- lateral changes. I find that the poll, the withdrawal of recognition, and the unilateral changes were unlawful. This case was tried before me in Houston , Texas, on October 23-24, 1984, pursuant to the August 30, 1984 complaint issued by the Acting General Counsel (Gener- al Counsel) of the National Labor Relations Board through the Regional Director for Region 23 of the Board. The complaint is based on a charge filed July 27, 1984, by Oil, Chemical and Atomic Workers Internation- al Union, Local 4-227, AFL-CIO (Union, OCAW, or Local 4-227) against Texas Petrochemicals Corporation (Respondent or TPC). I In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(5) and (1) of the Act by conducting a poll of unit employees on or about July 26- 27 concerning their desire to be represented by the Union, by not giving the Union advance notice of the time and place of the poll, by withdrawing recognition from the Union on July 27, by unilaterally converting unit employees from hourly to salaried pay, and by uni- laterally restructing insurance premiums. By its answer Respondent admits certain factual matters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the OCAW, and the Respondent,2 I make the following FINDINGS OF FACT 1. JURISDICTION A Texas corporation, Respondent operates a plant in Houston, Texas where it manufactures chemical prod- ucts. During the past 12 months, and since Respondent commenced its operation on June 21, TPC has sold and shipped from its Houston, Texas plant goods, materials, and chemical products valued in excess of $50,000 direct- ly to points located outside the State of Texas. Respond- ent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Local 4-227 is a labor organization within the meaning of Section 2(5) of the Act. i All dates are for 1984 unless otherwise indicated 2 Respondent's unopposed motion of December 3, 1984, to correct the record is granted Moreover, p 318, LL I I should reflect that I said I would not recommend throwing away the ballots. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For about 30 years the employees involved in this case were represented by the OCAW. Robert H. Broughton, employed at the plant since September 11, 1950, was a charter member of Local 4-227. The Union won an elec- tion (apparently Board conducted) there in the early 1950s (1:229-230).3 John H. Shelton is president of Respondent TPC.4 It is Shelton's understanding that Goodyear built the plant in the 1940s, and that Tenneco and FMC Corporation, as a joint venture, subsequently purchased the plant (1:165). The plant for many years was owned by Petro-Tex Chemical Corporation (Petro-Tex), a subsidiary of Ten- neco, Inc. The plant involved is located in Houston, Texas. Following a lengthy process of evaluation and ne- gotiation, TPC purchased the plant from Tenneco and began operations there at 3 p.m. on June 21, 1984 (1:98). At the plant, TPC produces butadiene, the primary in- gredient in the manufacture of synthetic rubber, and MTBE, a gasoline additive used to boost the rating of octane (2:314). As described by Shelton, TPC completely restructured the plant's operations. Departments were eliminated, some officers were not retained, and most of the mainte- nance craft work was subcontracted (1:98-99). TPC of- fered jobs to 120 of Petro-Tex's 300 hourly employees. Most accepted, but some declined, and a few quit after receiving the severance pay negotiated between Tenneco and TPC. To reach its complement of 120 hourly em- ployees, Respondent eventually had to add 15 to 20 em- ployees by transfers from TOC and general hiring. As of July 26, the date of the poll herein, TPC employed 103 hourly employees. Of these 103, some 15 to 20 had not worked for Petro-Tex (1:133-134). There is no dispute, and Respondent admits, that TPC is a successor employer to Petro-Tex. However, TPC did not assume the prior collective -bargaining agreement which had been in effect between Petro-Tex and the Union (1:97, 168).5 By letter dated June 28, the Union requested TPC to meet and bargain (G.C. Exh. 4).6 TPC responded by its letter of July 10 signed by William E. Gebhardt, employ- ee relations manager (G.C. Exh. 5). Gebhardt advised that TPC would meet with the Union to discuss recogni- tion of the OCAW for an appropriate bargaining unit. Shelton testified that on July 11 TPC posted a notice (not in evidence) to employees advising them of the 8 Citations to the two-volume transcript are by volume and page Broughton presently is director of marketing services for Respondent. 4 Shelton also is president of Texas Olefins Company (TOC) which is the parent of TPC ( 1 93) In addition to his chemical engineering degree, and his post graduate business courses, Shelton has a law degree (1 95, 161) 5 The last contract was set to expire March 1 , 1984 (G.C Exh 2) It was extended by supplemental agreements until the ownership of the plant changed (1 -30, G C. Exh 3). 6 The letter actually was mailed on June 29 and received on July 2 (1.56, 169, 250). It is signed by Lloyd A. Carter, president of Local 4-227, and Gary Weatherby , International representative 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD OCAW's recognition demand and that TPC had re- sponded (1:171-172). Following another exchange of letters the parties met in the office of Respondent's attorneys on July 19. Minutes of the July 19 meeting are in evidence (R. Exh. 3). Only a few matters were discussed . The primary accomplishment at the meeting was an agreement on the description of the appropriate unit . Respondent recog- nized the Union as the representative of the employees in the unit. At the end of the meeting Respondent's coun- sel, Samuel E. Hooper, stated that it would take about 2 weeks for him to prepare a contract proposal , and that he would contact the Union regarding future meeting dates. The next day, July 20, Gebhardt sent the following letter to Joe W. Campbell, secretary-treasurer of Local 4-227 (G.C. Exh. 9): Mr. Campbell: This letter will confirm our discussions of Thurs- day, July 19, 1984. As we discussed, Texas Petro- chemicals Corporation is obligated to recognize your union as the representative of certain of our employees because Texas Petrochemicals Corpora- tion would be deemed a successor employer of Petro-Tex Chemical Corporation. Due to the suc- cessor employer status of Texas Petrochemicals Corporation, we have not required your union to independently establish that the majority of our em- ployees in the following described unit continue to desire that you represent them . Accordingly, Texas Petrochemicals Corporation will recognize your union as the collective bargaining representative of the following unit of employees: INCLUDED: All Operations Department technicians, Technical Department laboratory technicians, Maintenance Department technicians (machinist) and Maintenance Department techni- cians (instrument). EXCLUDED: All other employees, including shift supervisory employees , executive, adminis- trative and professional employees, clerical em- ployees, technical employees and safety employ- ees. We will provide you with the names of our em- ployees employed in the above -described unit as soon as possible. Very truly yours, William E. Gebhardt Manager Employee Relations Also on July 20 Respondent posted ? the following notice to its employees from Shelton (G.C. Exh. 8): Our Employee Relations staff met with represent- atives of O.C.A.W. on Thursday, July 19, 1984, to discuss its claim to represent certain of our employ- 7 Although the notice is dated July 19, Gebhardt testified that it was not posted until July 20 (2:257) ees. We have formally responded to their claim of representation by letter advising them that as a suc- cessor employer, we are required to recognize the O.C.A.W. for the following unit of our employees: all Operations Department Technicians, Technical Department Lab Technicians, Maintenance Depart- ment Technicians (Machinist) and Maintenance De- partment Technicians (Instrument). The O.C.A.W. requested that we begin to deduct its union dues from your paychecks beginning im- mediately . We refused to deduct dues at this time. We advised O.C.A.W. that we intended to imple- ment a 12 hour shift schedule starting on Monday, July 23, 1984. The O.C.A.W. objected to our imple- menting the 12 hour shift schedule until they had more time to review it. We have postponed institut- ing the 12 hour shift schedule until August 6, 1984. Attached is a copy of the 12 hour shift proposal we intend to start on August 6th. By additional letters on July 20, TPC mailed certain requested information to the Union. At some point between the July 19 meeting and July 30 the Union, over the signatures of President Lloyd A. Carter and Secretary-Treasurer Joe Campbell, mailed to employees the following notice (G.C. Exh. 13):8 This is to inform you that on Thursday, July 19, 1984, your local union officers and representative Weatherby met with Texas Petro-Chemicals Corpo- ration officials and their attorney. As a result of this meeting the company agreed to recognize OCAW, Local 4-227 as the official bargaining representative for the hourly employees currently employed by Texas Petrochemicals. These employees include: All Operations Department, Technicians, Technical Department, Laboratory Technicians, Maintenance Department Technicians (Machinist) and Mainte- nance Department Technicians (Instrument) Also, the company proposed a new 12 hour shift for shift workers which, if agreed to by a vote of the membership, would go into effect on August 6, 1984. A special meeting is being called at the Union hall on Tuesday, July 30, 1984 at 4:30 p.m. and July 31, 1984 at 8.00 a.m. for the purpose of discussing and voting on the proposed /2 hour shift. We urge you to attend this important meeting. Weatherby testified that the Union did not meet with employees in preparation for the July 19 meeting with TPC, and that no employees showed up for the July 30- 31 meeting (1:71-72). At the hearing before me, the General Counsel called two witnesses and rested . The first, called under FRE 6 Neither Carter nor Campbell testified International Representative Weatherby testified that he and Carter jointly prepared the notice, and that it was mailed because TPC declined, in the absence of a contract, to permit the Union to post the notice on bulletin boards (1:43, 66, 75) TEXAS PETROCHEMICALS CORP. 611(c), was Employee Relations Manager Gebhardt and the second was International Representative Weatherby. The OCAW rested without calling any witnesses (1:87). Respondent called six witnesses, three being from man- agement, 9 two being unit employees,1 ° and the third being Gregory S. Carll, the certified public accountant (CPA) who conducted the employee poll of July 26-27, 1984. B. Events Leading to the Poll 1. Employee comments June 8 to July 18, 1984 Between June 8 and 21 Shelton made trips through the plant to evaluate employees and to make job offers to the 120 TPC planned to operated the plant with. During this initial period two employees, Shelton testified, per- sonally told him they felt the OCAW was not represent- ing them and that they did not want the OCAW to be their representative. This was in addition to similar re- ports made to him through supervision (1:102, 107-108). On cross-examination Shelton testified that the first of these comments made directly to him was by C. E. Goods (1:141, 160). Goods told Shelton that he thought the Union was "a thing of the past in the plant." (1:137.) When asked about the second employee's comment, Shelton testified that the (unnamed) employee, who worked in the lab, 11 had expressed dissatisfaction that the OCAW had not been able to tell them anything about what was going to happen and had been unable to respond to their questions (1:140). Between June 27 and July 2 Shelton held group meet- ings with 100 or more employees on the different shifts to inform employees about Respondent's plans and to tell them of his own background (1:150, 180-181). A prime goal of TPC was to persuade the 120 employees to stay with TPC. However, during the initial 2-week period the former Petro-Tex employees had the option of leaving and receiving severance pay of $12,000 to $15,000 from Petro-Tex (1:100-101). There were rumors, Shelton testi- fied, that many employees would take the severance pay and leave (1:134). It appears that only a few opted to leave after tentatively accepting TPC's job offer. During the group sessions, Shelton testified, some em- ployees expressed dissatisfaction with the Union's alleged failure to communicate with employees (1:108). Others commented that they preferred a 12-hour shift schedule but that the more senior employees who ran the Union were opposed to it (1:152). Shelton told them he had no comment about the Union ( 1:182). During this period and into July the supervisors in- formed Shelton that the employees did not want the OCAW to represent them (1:109). As Gebhardt testified, however, some 90 percent of the Petro-Tex employees hired by TPC had been on dues checkoff on behalf of the OCAW while with Petro-Tex (2:297-298). (Gebhardt 9 President Shelton , Employee Relations Manager Gebhardt, and Di- rector of Marketing Services Robert H Broughton. 10 Pumper Robert F. Wallace and Tommy L. Dancy, a technician in the quality control laboratory. 11 1 157-159 (Although page number 158 is skipped, it appears that the testimony is intact from pages 157 to 159 ) 1069 actually testified about 10 percent had not been on checkoff. Presumably, 90 percent had been.) 2. Employee comments July 18 to July 26, 1984 On July 18 Shelton and Gebhardt met with TPC's su- pervisors and informed them that TPC would meet the following day with the OCAW because of a legal obliga- tion to do so as a successor employer (1:109; 2:281). The supervisors remarked that the employees did not want to be represented by the employees . Shelton told the group that they should document any comments made to them on this topic by their employees and submit their memos to Gebhardt (1:111). The latter established a file in which to maintain such memos (2:278). The memos began coming in immediately . Gebhardt identified a series of memos (R. Exhs. 10-24) from super- vision purporting to record the comments of about 20 employees expressing the position that they did not want the OCAW representing them. The General Counsel ob- jected to an early reference by Shelton to the memos on several grounds, including hearsay, but I overruled the objection when Respondent announced that it was offer- ing the testimony only to show Shelton's state of mind (i.e., his good-faith belief) and not for the truth of the contents (1:103, 106). Respondent concedes that the memos would be hearsay if offered to prove the truth of their contents. Indeed, when the memos were offered through Gebhardt, Respondent's counsel conceded that they would be hearsay if offered to prove the truth of their contents, and counsel reiterated TPC's position that the memos were offered only to show state of mind and course of action (2:263). The General Counsel's objection that the documents were prepared for the purposes of litigation was overruled and the exhibits received (2:288- 291).12 The reports fall into two main groups , simple hearsay and, second, double hearsay. The simple hearsay reports are memos from a named supervisor or manager who re- ports the comments made directly to him by a named employee. The double hearsay reports are memos from a named superintendent or manager passing on the report of a named lower supervisor about the comment a named employee made, for himself or on behalf of other employees, to the lower supervisor. These two main groups may be subdivided into classi- fications based on whether the employee comments ex- press clear or apparent opposition to union representa- tion, whether they are ambiguous, or simply general criticisms of the Union or expressions of discontent. 3. The simple hearsay reports Ten employees may be classified as clearly or appar- ently stating they did not want union representation as reported directly by the supervisor writing the memo. These are employees G. W. Bryan, V. M. Inman, W. H. Maxwell, R. L. Powell, T. J. Smith (R. Exh . 15), Rose- I2 An additional objection concerning authentication was satisfied by Gebhardt's further testimony verifying the signatures on the memos and identifying the employees named in the memos as being members of the bargaining unit (2 289-290) 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mary Heath (R. Exh. 16), H. D. Fields (R. Exh. 17), Tommy L. Dancy 1 a (R. Exh. 19), A. C. Heald (R. Exh. 21), and D. R. LaFitte (R. Exh. 22). Although Dancy's statement to Jimmy Rhodes, Geb- hardt's personnel assistant , is that he would not sign a dues deduction authorization for the Union , he also re- portedly told Rhodes that no one in the lab was interest- ed in a union . I therefore include Dancy. Shelton testi- fied that there were 12 lab employees (1:100, 162). Dancy, a lab employee, also testified. He testified that he told Rhodes, around July 21 or 22, that the employees he spoke with did not desire to be represented by the OCAW any longer. He even asked Rhodes whether there was a way that the employees could vote on the matter. Rhodes, who did not testify, replied that he did not think a vote could be held (1:221, 225). Employee D. R. LaFitte's comments of July 19 in- clude his reported opinion that there were only five or six employees in the plant who wanted the OCAW. In the same vein, Gebhardt wrote a memo recording a July 20 conversation with George Bryan, named above, in which Bryan expressed the opinion that over 80 percent of the employees did not want union representation (R. Exh. 12; 2:266). For the category of expressions of discontent with the Union, or simply ambiguous comments , I include the re- ported remarks of three, and possibly four, employees. The July 20 remark of R. Ramirez that he had just about lost his prounion feeling (R. Exh. 13) is nothing more than an expression of discontent which does not qualify as a statement of no desire to be represented by the rec- ognized union. Statements of two other employees are ambiguous, and I would not count them as expressions of no desire to be represented by the OCAW. First, on July 18 C. A. Munson, the quality control manager, informed employ- ee H. Wayne Mouton of the OCAW-TPC meeting scheduled for the following day. Mouton, as Munson re- ports in his memo, replied (R. Exh. 14): "I don't see what the OCAW could do for us; we have a right to do anything we want to do." On July 19 J. H. Chism told Safety Specialist Cotton Miller14 that he, Chism , thought the union no longer ex- isted at the plant (R. Exh. 20; 2:270, 285). On July 20 Bezdek told Personnel Assistant Jimmy Rhodes that the Union had done nothing for him, that he would not sign a dues deduction form , and that he did not want any dues deducted from his pay (R. Exh. 18). On the same date Bezdek told employee Cotton Miller, as recorded on a memo addressed to no one, that the Union could "kiss my ass." (R. Exh. 20.) An employee who, angry at the recognized union, withdraws his finan- cial support from the Union is not necessarily to be counted as being against representation by the union. In conjunction with appropriate circumstances, Bezdek's ex- pressions might qualify as a vote of no confidence. 13 Tommy L Dancy is one of two unit employees who testified at the hearing The other is Robert F. Wallace as is noted below. 14 Employee Miller is not part of the bargaining unit (2 290). 4. Double hearsay reports Coming now to the second main group, the double hearsay reports, I would count eight employees as being clearly or apparently opposed to union representation. These are: J. N. Sims (R. Exh. 15), L. B. Davis, W. M. Eggers, A. G. Hoover, R. C. Smith, and R. F. Wallace (R. Exh. 23),15 plus Garlen Gillen and Cliff Layton (R. Exh. 24). Gillen's July 18 comment, as reported on July 19 by Supervisor J. V. Dickson to Superintendent E. Lewis, was that as far as Gillen was concerned the Union could take the same shaft it had given him. In making this comment, Gillen reportedly extended his hand with "his middle finger in an upright position ." That expression seems to qualify Gillen as being opposed to representa- tion by the OCAW, although it could be argued that it means simply that Gillen would refuse to sign a dues checkoff. To sum up, I count a total of 18 named employees as reportedly (by hearsay or double hearsay) against repre- sentation by the OCAW. These reports were received by Gebhardt and Shelton during the period of July 18 through July 20. In addition to the comments of named employees, and as previously noted, employees D. R. LaFitte and George Bryan are quoted as expressing their opinion that a majority of the unit did not want to be represented by the OCAW. 5. TPC decides to take a poll Shelton testified that following TPC's meeting with the OCAW on July 19 and the July 20 posting of Shel- ton's memo to all employees informing them about that- meeting, employees began contacting their supervisors wanting to know why TPC had met with the Union (1:111). Moreover, Shelton testified, employees came to the personnel department demanding that no union dues be deducted from their paychecks. "We had almost an uprising in the plant." (1:111.) Gebhardt characterized it as a "crescendo of comments" being "almost a revolt," a "ground swell" of employee opposition , and a period of "turmoil." (2:259, 292.) I find the "uprising" and "ground swell" characteriza- tions by Shelton and Gebhardt to be exaggerated: No doubt there was some turmoil . But it included more than outright opposition to representation by the Union. Indeed, Marketing Services Director Robert H. Broughton testified that during June and July, 8 to 10 unit employees told him they wanted representation by the OCAW but felt they were not receiving it (1:232, 236). Broughton in turn informed Shelton and Gebhardt that employees were very disturbed because they had no representation from the Union (1:238). That report, of course, was nothing more than a report of employee dis- is As previously noted, Robert F Wallace is one of two unit employ- ees who testified at the hearing Wallace is named in a July 19, 1984 report by Process Superintendent W. F Howard to Shelton as having told Shift Supervisor John Warren that he, Wallace, did not want union representation (R. Exh 23) Wallace, a member of the Workmen's Com- mittee at Petro-Tex, denied that he had ever spoken with TPC's manage- ment about the union issue (2.218). The testimony of Wallace illustrates one of the risks inherent with hearsay reports. TEXAS PETROCHEMICALS CORP. content-a concept which falls short of a desire not to be represented by the OCAW. Furthermore, almost all the memos Respondent sub- mitted as exhibits concerning reported comments of em- ployees reflect July 20 as the last date of employee re- marks (R. Exhs. 10-24). Only 18 employees are named in the memos and expressing clear or apparent opposition to representation by the Union. On the other hand , the reports did include purported statements by two different employees (G. W. Bryan, R. Exh. 12, and D. R. LaFitte, R. Exh. 22) that over 80 percent of the bargaining unit were opposed to represen- tation by the OCAW. Lab employees also told Personnel Assistant Rhodes on July 20 that none of the (12) em- ployees in the lab was interested in being represented by a union (R. Exh. 19). These matters have been noted, as has Dancy's testimony that around July 23 he asked Rhodes whether an election could be held so the em- ployees would have the opportunity to vote on the issue of union representation (1:221, 225).16 Rhodes did not testify, and the record does not reflect whether he reported Dancy's inquiry to Gebhardt or Shelton. Whether by coincidence , or based on Dancy's inquiry, that same week Shelton and Gebhardt had con- versations with TPC's labor attorney concerning the pos- sibility of conducting a poll (1:127-128; 2:294). At this point Shelton decided he needed to call a meeting to resolve the matter. He testified that it had become apparent to him that the employees were becom- ing displeased with TPC because they were interpreting Respondent's meeting with the OCAW (and recognition of the Union) as forcing them to be represented by the Union (1:112). Accordingly, from 9 to 10:30 a.m. on Thursday, July 26, Attorney Hooper met in Shelton 's office with Shel- ton and his four department managers in order to resolve the situation (1:112, 124; 2:294).17 They discussed the course of events until about 10:30. At that point Shelton decided, on attorney Hooper's rec- ommendation, to conduct a poll beginning that afternoon (1:113, 129; 2:299). Shelton testified that he based his de- cision to conduct the poll on the following factors (1:114). First, no unit employees had said they wanted to be represented by the OCAW. I agree with the General Counsel that this amounts to no reason. Second, no unit employee had been present at the July 19 meeting between TPC and the OCAW. This item calls for some background information . Under the con- tract with Petro-Tex, the company recognized a Work- men's Committee consisting of six employees elected as committeeman for the transacting of regular business 16 Marketing Services Director Broughton testified that the only elec- tion the employees had ever had on the matter was the original election in the early 1950s ( 1:230). 19 Gebhardt was there as manager of employee relations. The other managers are not specifically named in this context , but Gebhardt identi- fied the only departments as Operations , Quality Control, and Mainte- nance (2:294) Elsewhere Gebhardt names C. A Munson as being the quality control manager (2.266, 286), Tom Grimsrud as operations man- ager (2.265, 267), and R. W. Summers as utilities manager (2 266) As we saw earlier, the unit description lists three line departments . Operations, Technical , and Maintenance Presumably, quality control is part of Tech- nical, and utilities is part of Maintenance. 1071 (G.C. Exh. 2, art. 2). Gebhardt testified that even con- tract negotiations had been handled by the Workmen's Committee on behalf of the OCAW (2:246-247, 254). Shelton testified that TPC had offered jobs to 5 of the 6 former committeemen and that 3 had accepted and re- mained with TPC (1:179). As the General Counsel ob- serves, brief at 8, the OCAW was privileged to deter- mine the makeup of its bargaining committee , and could well have signified that the OCAW considered this initial meeting to be crucial to its representation of TPC's em- ployees by sending officers of the Union plus a repre- sentative of the International . Moreover, unlike Petro- Tex, TPC was not contractually obligated to give the former committeemen leave for time spent at a bargain- ing session (1:217-218, Wallace). I find that the second ground is insufficient either alone or in conjunction with others. 18 Third, the documented reports and the comments made to Shelton directly by employees. The troublesome aspect of the memos is their hearsay nature. I shall re- serve discussion of this ground until later. Fourth, it had been about 30 years since the employees had experienced the opportunity of voting regarding being represented by a union . That is no ground at all, for the 30 years indicates that there was a stable bargain- ing relationship. Fifth, 15 to 20 employees were new hires who had not been Petro-Tex employees. This is not a ground, for Board law deems new hires to be represented in the same ratio as those they replace. Hutchison-Hayes Inter- national, 264 NLRB 1300, 1307 (1982). In this connec- tion, and as already noted, Gebhardt testified that 90 per- cent of the employees TPC hired from Petro-Tex had been on dues checkoff to the OCAW while employed at Petro-Tex (2:297-298). As Texas is a right-to-work state where employees may reap the benefits of union repre- sentation without the necessity of being union mem- bers,19 the figure of 90 percent reflects that at least in the recent past the OCAW enjoyed a very high standing with the bargaining unit. Sixth, Shelton testified that there had been a strong rumor that a petition was being circulated in the plant requesting a vote (1:115). Gebhardt testified that he heard the rumor earlier that week (2:296). TPC did not receive the petition until moments after his no repercus- sion announcement in the cafeteria to the first voting group on July 26 when the apparent sponsor, employee Albert G. Hoover, handed it to him as Shelton was leav- ing (1:116-117). The petition, bearing 35 signatures,20 has the following preamble (R. Exh. 4): We the hourly paid employees of Texas Petro Chemical understand that the Company received a letter from Local 4-227 of the O.C.A.W. in which it 19 I note that after Respondent decided on July 26 to poll its employ- ees, it did not bother to notify any of the three former committeemen of its decision (2:313, Gebhardt). 19 Hutchison-Hayes, id 20 There is no issue concerning authenticity of the signatures as being those of unit employees. 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD claims to represent a majority of former Petro- Texas employees. Under present conditions we feel union represen- tation is no longer necessary , and would prove to be a detriment in many areas. We therefore request that a vote be taken of all hourly employees to substantiate OCAW's claim of representation. When TPC made its decision at 10:30 a .m. on July 26, it, of course, had not seen the petition and knew of it only by rumor. I find that such a rumor does not qualify as a ground, either alone or in conjunction with the other record evidence, to authorize TPC to poll its em- ployees. The petition will be considered further when discuss- ing the validity of TPC's withdrawal of recognition. At this point it may be useful to note Gebhardt 's testimony that the 35 employees who signed the petition, with pos- sibly the exception of one or two persons, constitute one entire shift (2:296). Gebhardt speculated that Hoover proceeded no further with the petition , and submitted it to Shelton, because TPC's poll made a petition unneces- sary (2:297). 6. The poll of July 26-27, 1984 In order to cover the four shifts, the poll extended over the 2 days of July 26-27. The record evidence de- scribes in detail the conditions under which the employ- ees voted in the poll. There is no need for me to describe all of them, however, because there is no allegation that Respondent violated the Act by the manner in which it conducted the poll. The two complaint allegations pertaining to the poll are that Respondent unlawfully refused to bargain by failing to give the Union prior notice of the time and place of the poll,21 and by conducting the poll at all (complaint par. 10). I shall discuss these allegations later. A few facts should be mentioned about the poll's con- ditions. First, Respondent hired a certified public ac- countant, Gregory S. Carl], to conduct the poll and count the ballots. Each voting session had two observers. Most of the observers were unit employees. The voting was by secret ballot outside the presence of supervisors. Shelton told employees they could vote without fear of repercussion (1:116), and CPA Carll read a four-point statement including that same assurance (R. Exh. 5; 1:190). No advance notice, however, was given to the employees of the poll (1:133, Shelton). By contrast, TPC posted the results of the poll. The employees voted by a ballot which asked for them to mark a yes or no box in answer to the question of whether they wanted the Union to represent them at TPC (R. Exh. 6). The bargaining unit consisted of 103 employees (1:103, 120, 162; R. Exh. 8). The tally of ballots reflects that of 103 eligible voters, there was 1 void ballot, 35 "Yes" votes for the Union, 21 Complaint par 11. In its answer, Respondent admits that it did not give prior notice A unit employee did give a telephone message late on July 26 which Weatherby did not receive until the following day (1 73- 74) and 50 "No" votes against representation (R. Exh. 8).22 That made a total of 86 ballots cast. Shelton testified that there had been eight employees who had not had the op- portunity to vote (1:120-121). Whether Shelton meant the eight were on sick leave , vacation, at work but did not vote, or whatever, is unexplained. Nor is any refer- ence made to the remaining nine employees needed to bring the total to 103. Even if the missing eight voters mentioned by Shelton had voted and cast ballots for the Union, it would not have affected the outcome. If against the Union, they could have affected the results only if the poll, to justify TPC's withdrawing recogni- tion, must show a majority of the 103 as voting against the OCAW. The General Counsel argues, brief at 13-14, that the standard must be a majority of the entire unit of 103. It appears that case authority holds against the Gener- al Counsel's argument, and supports Respondent's posi- tion that an employer, in the appropriate context, may rely on the results of the balloting as in a Board-conduct- ed election. That is, the test is whether a majority of the valid votes counted is against representation . Taft Broad- casting, 201 NLRB 801 (1973) (involving an 11 to 11 tie where 22 employees of a 28-employee unit cast ballots). 7. TPC withdraws recognition Shelton testified TPC looked at the results of the vote "and we felt then that we had an edict and sufficient ob- jective criteria" on which to withdraw recognition from the OCAW (1:121). Shelton interpreted the vote as being strongly opposed to representation by the OCAW (1:135). By telephone and mailgram on July 27, Gebhardt noti- fied the Union that it was withdrawing recognition and would no longer bargain with it based on the secret ballot poll taken of the employees (G.C. Exh. 12; 2:304).23 Following that notification to the OCAW, on July 27 TPC posted a notice to employees from Shelton (2:305). The text of Shelton's memo reads (R. Exh. 25): Yesterday and this morning our technicians were given the opportunity to vote on whether they wanted to be represented by the OCAW here at Texas Petrochemicals Corporation. The voting has been completed and 59 % voted against having the OCAW represent them . Accordingly, we have sent a telegram to the OCAW advising them that we are withdrawing recognition from them. I sincerely appreciate the confidence our techni- cians have shown in Texas Petrochemicals Corpora- tion and I pledge to do my utmost to earn that sup- port. 22 Thus, the "No" votes amount to 48 5 percent of the eligible voters, but 58 8 percent of the valid votes counted 23 Complaint par 12 . TPC's answer admits the factual allegation but denies the refusal-to-bargain conclusion TEXAS PETROCHEMICALS CORP. 8. The unilateral changes Complaint paragraph 13 alleges that on or about August 1 Respondent "unilaterally, and without notice to, or consultation with, the Union, converted all em- ployees in the bargaining unit set forth above from hourly rates of pay to salaried compensation and restruc- tured insurance premiums." In its answer, Respondent admits that factual allegation,24 but denies the conclu- sionary allegation of paragraph 14 that the unilateral change was a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. The lawfulness, of course, de- pends on whether TPC lawfully withdrew recognition from the OCAW. C. Analysis and Conclusions 1. Applicable legal principles To preserve stability in bargaining, an incumbent union enjoys an irrebuttable presumption of majority status for 1 year after its certification, and a rebuttable presumption thereafter . Thomas Industries, Inc. v. NLRB, 687 F.2d 863 (6th Cir. 1982). Absent special circum- stances, a union which is voluntarily recognized by the employer but not certified by the Board also is irrebutta- bly presumed to have majority status-but only for a reasonable period of time from the date of recognition. Tajon, Inc., 269 NLRB 327 (1984).25 But where the recognition is by a successor employer, majority status is deemed by operation of law, and rec- ognition extended by the successor is a formality not the same as voluntary recognition of a nonincumbent union. Landmark International Trucks, Inc. v. NLRB, 699 F.2d 815 (6th Cir. 1983). Thus, the "reasonable time" standard is inapplicable in successorship cases, for a successor's obligation to bargain with an incumbent union is based on a rebuttable presumption of the latter's majority status.26 Agri-International Inc., 271 NLRB 925 (1984). A successor employer may overcome that presumption by demonstrating either (1) that the bargaining representa- tive no longer enjoys majority support on the date of the employer's refusal to bargain, or (2) it has a good-faith and reasonably grounded doubt of the union's continued majority support . Agri-International Inc.; Sofco, Inc., 268 NLRB 159 (1983); Aircraft Magnesium , 265 NLRB 1344, 1346 (1982). Stated differently, the established rule is that an em- ployer may withdraw recognition if it demonstrates, on the date of withdrawal and in a context free of unfair labor practices, that the union (1) in fact had lost its ma- jority status, or (2) that the withdrawal was predicated on a reasonable doubt, based on objective considerations, of the union's majority status.27 Master Slack Corp., 271 24 Shelton confirmed it in his testimony (1 184) 25 In Talon the Board discusses the meaning and application of the "reasonable time" standard 26 Of course, if the incumbent union had been certified and the certifi- cation year has not expired, then the presumption is irrebuttable for the balance of the certification year. Btu-Fountain Manor, 270 NLRB 199 fn 3 (1984) 27 For this second option, the employer is not required to show that a majority of the entire bargaining unit opposes the union Sofco, supra And where the employer conducts a lawful poll of employees and the 1073 NLRB 78 (1984); Abbey Medical/Abbey Rents, 264 NLRB 969 (1982), enfd. mem. 709 F.2d 1517 (9th Cir. 1983). The employer's burden is a "heavy one," Distribution Services West, 262 NLRB 764, 772 (1982), for the evi- dence must be "clear, cogent, and convincing." Hutchin- son-Hayes International, 264 NLRB 1300, 1304 (1982); Forbidden City Restaurant v. NLRB, 736 F.2d 1295 (9th Cir. 1984). This is "high standard of proof" which re- quires more than unfounded speculation of a subjective state of mind. Hutchinson-Hayes, ibid. Moreover, evidence of dissatisfaction with the union, to be of any significance, must come from the employees themselves, not from the employer on their behalf. Mont- gomery Ward & Co., 210 NLRB 717 (1974). This does not mean that at trial the employer is required to call the employees as witnesses and elicit the testimony from them directly. Sofco, supra, fn. 9; Naylor, Type & Mats, 233 NLRB 105, 107-108 (1977). However, an employer can rely only on quoted comments of the employees and not on self-serving general assertions by the employer that in its opinion the employees did not support the union. Sofco, at fn. 10. If an employer, in order to determine whether to with- draw recognition from an incumbents union polls his em- ployees regarding their desire to continued representa- tion, then as a prerequisite to conducting such poll, the employer must have an objective basis for doubting the union's majority status or the poll is unlawful . Hutchison- Hayes, supra at 1304. It has been the Board's rule that the objective basis test used for determining whether a poll was justified is the same test applied in deciding the lawfulness of an employer's withdrawal of recognition from an incumbent union. Hutchison-Hayes, supra at 1304 fn. 9; Thomas Industries, 255 NLRB 646, 647 (1981), enfd. denied in relevant part 687 F.2d 863 (6th Cir. 1982). At least three courts, the Fifth Circuit in NLRB v. A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981); the Sixth Circuit in Thomas Industries; and the Ninth Circuit in Forbidden City Restaurant v. NLRB, surpa, disagree with the Board and have held that the objective evi- dence, while it must be substantial, need not meet the high standard necessary to justify a withdrawal of recog- nition. With due respect to the decisions of the circuit courts, an administrative law judge is bound to apply Board law until the Supreme Court or the Board over- rules or modifies that precedent. Iowa Beef Packers, 144 NLRB 615 (1963). A crucial issue in this case is whether the evidence TPC relied on in deciding whether to conduct the poll of July 26-27 satisfies the objective test required. Finally, although the General Counsel has not alleged that TPC independently violated Section 8(a)(1) of the Act by failing to observe certain safeguards in conduct- union does not win a majority, the result may, in an appropriate context, serve as support for an employer's withdrawal of recognition Taft Broad- casting, 201 NLRB 801 (1973). Taft involved a tie vote of I I to I I where 22 employees of a 28-employee unit cast ballots Thus , as earlier noted, the General Counsel's argument is unavailing that the "majority" in a polling situation is a figure based on the entire unit , rather than on the valid votes counted 1074 DECISIONS OF THE NATION'AL• LABOR RELATIONS BOARD ing the poll of July 26-27, the complaint does allege that Respondent refused to bargain in violation of Section 8(a)(5), and (derivatively) Section 8(a)(1), by failing to give the Union advance notice of the time and place of the poll. 28 The Board apparently has never expressly passed on the notice point,29 but the Fifth Circuit, in A. W. Thompson, supra, and the Ninth Circuit, in Forbid- den City, supra, do require that the union be given ad- vance notice of the time and place of the poll. Although the courts in A. W. Thompson and Forbidden City did not describe their rationale for adding the notice requirement, it seems obvious they did so on the basis that the union is still, at that point, the recognized bar- gaining agent. Moreover, the incumbent union might well desire to review the polling arrangements with the employer, designate, or at least suggest, names of em- ployees to be observers, and no doubt would want to be present when the ballot boxes are opened and the votes tallied. Finally, and of critical importance , the union would want to make certain that as many eligible voters as possible will have the opportunity to vote. Otherwise, an employer, either by design or through oversight, could exclude a department full of union supporters. Where the majority standard is based on the number of valid votes counted, as in a Board-conducted election, rather than tested against the number of the entire bar- gaining unit, an incumbent union will find it imperative to see that there is a big turnout of voters-and particu- larly of its own supporters.3° If the test were in terms of the entire unit, then the crucial votes would be those voting No, and the Yes voters could, if they desired, re- frain from voting. Indeed, in this very case a total of 17 unit employees did not vote. The brief testimony of Shelton on this sub- ject is that 8 (of the 17) did not have the opportunity to vote ( 1:121). Does that mean that the remaining nine had the opportunity to vote but declined? If so, did they de- cline on the mistaken assumption that the votes which really counted were the No votes? As we can see, if the missing 17 eligible voters had cast ballots, and if their ballots had been Yes votes, then the tally would show a vote of 52 to 50 favoring representation by the Union.3 t In short, there is every reason for giving advance notice to the incumbent union. 2. Discussion and conclusions a. The objective criteria insufficient I previously have discussed five of TPC's six grounds for deriding to conduct the poll, and I found that none 28 The Board has not expressly extended its precertification poll stand- ards, enumerated in StruArnes Construction Co, 165 NLRB 1062 (1967), to polls taken in withdrawal of recognition situations. 29 For contrary authority, Respondent cites Taft Broadcasting, 201 NLRB 801 (1973) However, the question of whether advance notice should be given was not raised in that case 30 The many safeguards attendant to Board-conducted elections assure that all employees know well in advance that an election will be con- ducted In TPC the valid votes counted can have the same impact of a Board-conducted election , yet neither the employees nor the OCAW was given advance notice of the election " Recall that one ballot was void of the five is a valid ground whether considered singly " or together. Earlier I reserved the sixth ground , actually Shelton's third enumerated ground , for discussion at this point. The problem with the memos is their hearsay nature. I overruled the General Counsel's hearsay objection when Respondent observed that it offered the memos for the limited purpose of showing Shelton's state of mind (his good faith) in making his decision to poll the employees. That ruling, I find, was erroneous . This is so because the great bulk of Respondent's objective evidence consists of hearsay reports, received over objection , that various employees, as quoted by the reporting supervisors or managers, were opposed to representation by the OCAW. President Shelton's good faith is only one aspect of the issue. Respondent's good faith must be reasonably grounded on objective factors. Hearsay reports of super- visors not made available for cross-examination do not meet the text of "reasonably grounded on objective fac- tors." In this conversation I note that in Sofco, supra, in Thomas Industries, Inc., 255 NLRB 646 (1981), and in Naylor, Type & Mats, 233 NLRB 105 (1977), the supervi- sors holding the conversations with the quoted employ- ees were called as witnesses and, therefore , were subject to cross-examination by the General Counsel. The only supervisor mentioned in any of the memos who testified is Gebhardt, and there is only one memo by him (R. Exh. 12). In that memo, dated July 20, Geb- hardt describes a conversation with unit employee George Bryan. The relevant portion of the memo quotes Bryan as expressing the opinion that over 80 percent of the unit do not want union representation . But Bryan's assessment of the opinion held by others is entitled to far less weight than an expression by the employees of their own feelings, even though quoted by a supervisor. Sofco, supra at fn. 10. Moreover, a factor indicating that Shelton 's testimony is not fully reliable is the discrepancy between him and employee Robert F. Wallace. Shelton testified that around mid-July former committeeman Wallace told him that all the employees wanted the 12-hour shift and if TPC was willing to install it then to do so and not worry about the OCAW (1:109, 179). Yet Wallace, on cross-examination by the General Counsel, denied that he ever discussed any union opposition matter with Shel- ton, Gebhardt, or any other management person ( 1:216). Neither the cross nor the redirect examination specifical- ly asked Wallace about the 12-hour shift remark. Al- though I do not view Wallace's denial to be a direct im- peachment of Shelton, I do consider the denial to detract from Shelton's overall reliability. Aside from the hearsay reports that employee George Bryan thinks over 80 percent of the unit do not want union representation, and that employee D. R. LaFitte believed that only five or six employees in the plant wanted a union, we have only Shelton's generalized testi- mony of remarks of discontent which (1) he personally heard or (2) oral reports to him by unnamed supervisors that the employees did not want the OCAW. Had some of these reporting supervisors been called as witnesses by Respondent, their testimony, if accounting TEXAS PETROCHEMICALS CORP. for. a significant portion of the 18 employees named in the reports, combined with the personal opinion assess- ments by employees George Bryan and D. R. LaFitte (if quoted by testifying supervisors) that over 80 percent of the unit did not want to be represented by the OCAW, then Respondent might well have met its burden of proof. Previously I have found the testimony of Shelton and Gebhardt concerning the oral reports to be an unreliable indicator. They testified in an exaggerated fashion. More- over, their testimony is undercut by that of Marketing Services Director Broughton who explained that he told Shelton and Gebhardt the employees were very dis- turbed because they had no representation from the Union (1:238). As already noted, Broughton's report re- flects nothing more than a frustrated desire of the em- ployees to have representation by the OCAW. In conclusion, I find Respondent's evidence unsupport- ed, too generalized, and far too insubstantial to justify the action of TPC in conducting a poll. The poll, there- fore, was an unlawful refusal to bargain as alleged in complaint paragraph 10 (in conjunction with conclusion- ary par. 14). b. TPC unlawfully failed to notify the OCA W My discussion of TPC's admitted failure to give the OCAW advance notice of the poll appears earlier. In light of the factors and authorities considered there, I find that Respondent, as alleged in complaint paragraph 11, unlawfully refused to bargain with the Union by fail- ing to give the OCAW advance notice of the time and place of the poll. c. Respondent unlawfully withdrew recognition TPC argues that even if it cannot rely on the poll, it nevertheless was entitled to withdraw recognition be- cause of the other factors, including the petition present- ed to Shelton on July 26. Aside from the petition, the other factors, already discussed , fall far short of the sub- stantial and objective evidence Respondent needed to adduce. Respecting the petition bearing 35 signatures, TPC argues that it is even more impressive than the total of 35 signatures because (1) the names are of employees on just one of the four shifts, and (2) Hoover stopped circu- lating the petition because of TPC's poll. However, the second factor, as previously observed, is nothing more than Gebhardt's speculation and therefore has no proba- tive weight. The single shift factor is just as consistent with an inference that Hoover reached the main group of those opposed to the OCAW when he covered that one shift and that had he gone to other shifts he would have met with little success . Indeed, if the rumor was that the petition had been circulating for at least a few days before July 26, one can justifiably wonder whether Hoover had gone to all the shifts and had been able to secure only 35 signatures . We do not know because Hoover did not testify . In these circumstances, I find that the petition manifestly is an insufficient ground to justify Respondent's withdrawal of recognition from the 1075 OCAW whether considered alone or in conjunction with the other evidence already found sufficient. Accordingly, I find that TPC, as alleged in complaint paragraph 12 (and 14), unlawfully refused to bargain with the Union by withdrawing recognition from the OCAW on July 27, 1984. d. Unilateral changes unlawful If TPC's withdrawal of recognition had been lawful, then the unilateral changes made thereafter would have been lawful. Master Slack Corp., 271 NLRB 78 (1984). Because the withdrawal of recognition was illegal, the unilateral changes were illegal . Peat Manufacturing Co., 251 NLRB 1117 fn. 4 (1980), enfd. 667 F.2d 1169 (9th Cir. 1982). CONCLUSIONS OF LAW 1. TPC is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The OCAW is a labor organization within the meaning of Section 2(5) of the Act. 3. On June 21, 1984, TPC became a successor employ- er to the employees in the bargaining unit described below. 4. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: INCLUDED: All Operations Department techni- cians, Technical Department laboratory technicians, Maintenance Department technicians (machinist) and Maintenance Department technicians (instru- ment). EXCLUDED: All other employees, including shift supervisory employees, executive, administra- tive and professional employees, clerical employees, technical employees and safety employees. 5. At all times material herein the OCAW has been the exclusive collective-bargaining representative of all the employees employed in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By conducting a poll among its employees on July 26-27, 1984, concerning whether they desired to be rep- resented by the OCAW, and by failing to give advance notice to the Union of the time and place the poll was to be conducted, TPC refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. 7. By withdrawing recognition from the OCAW on July 27, 1984, TPC refused to bargain with the Union in violation of Section 8(a)(5) and 0 of the Act. 8. By unilaterally, without notice to or consultation with the OCAW, converting all bargaining unit employ- ees from hourly rates of pay to salaried compensation and by restructuring their insurance premiums, all on or about August 11, 1984, TPC refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. 9. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent TPC has committed the unfair labor practices as alleged, I shall order it to cease and to take affirmative action designed to effectu- ate the policies of the Act. Counsel for the General Counsel requests that TPC be ordered to rescind all unilateral changes (Br. at 15). A blanket order to rescind the unilateral changes is inap- propriate. Peat Mfg. Co., 251 NLRB 1117 fn. 4 (1980), enfd. 667 F.2d 1169 (9th Cir. 1982). Additionally, I shall include make whole language in the order . Peat Mfg. Respecting the matter of rescission of unilateral changes, the Board in Peat Mfg., ibid, provided that nothing in the order would be construed as requiring re- scission of benefits granted to unit employees as part of any unilateral changes . As the order shall provide here, as there, that unilateral changes will be rescinded on re- quest of the Union, it is unclear how the OCAW will obtain rescission of unilateral changes deemed beneficial to employees if the OCAW, in order to restore its bar- gaining position, or for whatever reason, desires that even beneficial changes be rescinded. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed32 ORDER The Respondent , Texas Petrochemicals Corporation, Houston, Texas, its officers, agents, successors, and as- signs, shall 1. Cease (a) Refusing to bargain with the Union as the exclusive bargaining representative of all the employees in the unit described below by conducting unlawful polls of our em- ployees concerning their desire for union representation; by unlawfully withdrawing recognition from the OCAW; and by making unilateral changes without giving notice to or bargaining with the Union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with Oil, Chemical and Atomic Workers International Union, Local 4-227, AFL-CIO as the exclusive bargain- ing representative of the employees in the following ap- propriate bargaining unit and, if an understanding is reached, embody such understanding in a signed agree- ment: INCLUDED: All Operations Department techni- cians, Technical Department laboratory technicians, Maintenance Department technicians (machinist) and Maintenance Department technicians (instru- ment). EXCLUDED: All other employees, including shift supervisory employees, executive, administra- tive and professional employees, clerical employees, technical employees and safety employees. (b) On request by the OCAW, reinstate any terms of employment existing when recognition was withdrawn from that labor organization as the bargaining represent- ative of the employees in the above unit, and make whole those employees for any loss of benefits which would have accrued to them but for the changes in the terms of their employment following the withdrawal of recognition; provided, however, that nothing herein shall be construed as requiring rescission of any benefits which previously have been granted to unit employees. (c) Preserve and, on request , make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Houston, Texas plant copies of the at- tached notice marked "Appendix."33 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 32 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 83 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"