Rohlik, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1964

145 N.L.R.B. 1236 (N.L.R.B. 1964)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 795 and Local 340 are labor organizations within the meaning of Section
2(5) of the Act.
3. By lrterrogat:ng em:,icyee Mocder as to his and otter employees' union desires,
activities , and symp atlncs, Respondent committed an unfair labor practice con-
demned by Section 8(a)(1) of the Act.
4. Said unfair labor practice is an isolated instance.
5. Respondent has not engaged in any other un.Lar labor practice as alleged in the
complaint.
6. A cease-and -desist order is not required to remedy the above single unfair labor
practice , and such order is not necessary to effectuate the policies of the Act.
RECOMMENDATION
Upon the basis of the above findings of fact, conclusions of law, and the entire
record, it is recommended that the complaint be dismissed.
Rohlik, Inc . and Local Union 267, Allied Industrial Workers of
America, AFL-CIO. Case No. 7-CA-4109/. January .97, 1964
DECISION AND ORDER
On July 16,1963, Trial Examiner Fannie M. Boyls issued her Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent had not engaged in certain unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. Thereafter,
the General Counsel filed exceptions to the Intermediate Report to-
gether with a statement in support of the exceptions. The Respond-
ent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, statement, and brief, and the entire rec-
ord in the case, and hereby adopts only those findings, conclusions,
and recommendations of the Trial Examiner consistent with this
Decision and Order.
The facts of the case are not in dispute, and are fully set forth in the
Intermediate Report. We restate here only those facts necessary to
support our decision.
Prior to 1958, Sigmund Rohlik had owned 1 and operated a corporate
business engaged in the manufacture and sale of radio and camera
cases, and related items. In that year, Rohlik sold the business to the
Prince Gardner Company, which continued to operate the business
under the name of Rohlik, Incorporated, and retained Rohlik to man-
age the business until his retirement in January 1962.
About the time of Rohlik's retirement, the Union, Local 267, Allied
Industrial Workers of America, AFL-CIO, launched an organiza-
i Rohlik and his wife owned 100 percent of the stock.
145 NLRB No. 120.
ROHLIK , INC. 1237
tional campaign which led to a representation election and culminated
in its certification by the Board on January 10, 1962. Thereafter, the
Employer and the Union negotiated a contract which was executed on
March 29, 1962, to be effective to March 19, 1964, and which contained,
inter alia, a union-security agreement and a checkoff clause.
Because Rohlik, Incorporated, was operating at a loss, the Prince
Gardner Company decided, in the latter months of 1962, to sell the
Company. It negotiated with Rohlik and succeeded in inducing him
to repurchase his old business.
On January 17, 1963, Rohlik, Incorporated, was bought by R,&-, P,
Incorporated, which subsequently changed its name to Rohlik, Inc.,
the Respondent herein. Rohlik owns 51 percent of the stock of Rohlik,
Inc., and is the president. Milton Weiner is vice president and owns
49 percent of the stock. The Respondent did not assume any of the
liabilities of Rohlik, Incorporated, and it did not assume the collective-
bargaining contract between the Union and Rohlik, Incorporated.
Rohlik, Incorporated, terminated its work force of approximately
150 employees during the week ending January 18, 1963. Most of the
employees received termination notices with their final paychecks.
Respondent requested the supervisors of Rohlik, Incorporated, most
of whom it hired, to make a list of the 55 most efficient production em-
ployees. These employees were notified by Respondent to attend an
"important meeting" at the plant on January 23, 1963. When the
employees reported for the meeting, Rohlik introduced Weiner and
then read the following statement :
I have called you together to offer you a job in a new concern that
I will manage. The old concern had to give up its Detroit opera-
tions not because it ran out of business-business was good-but
because it ran out of profits and suffered heavy losses. These
losses put Printz-Gardner Co. [sic] out of business in Detroit and
put all of you out of your jobs. I have bought the machines from
the old owners and am starting up a new business in the hope and
belief that we can do better. I will have a job for you so long as
I can make profit in this business.
But it is possible that I could fail and like Printz-Gardner
[sic] be compelled to close up; and this result will surely happen
if I do not have your help to make production efficient. Experi-
ence has shown that each worker in this trade has to produce
$1,100 plus worth of product per month to justify steady
employment.
When you worked for me before, you were not represented by
a union, but we were able to get along well. I believe you liked
it that way, for you felt you could take up your problems with
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me and be assured of fair treatment. Since I left, a union has
been certified as your bargaining representative. Even though
this is a new business and the contract is not binding on the new
owners, I am advised that your appointment of the Union as
your bargaining agent is binding if you do not vote to quit the
union. I believe we would both be happier if you and I could
solve our problems together personally, but I am not allowed to
take up a single matter with you, unless you first vote that you
no longer want to be represented by the Union. It is your
privilege to do so.
But if you should vote that you still want to be represented by
the union, I for my part will do my best to carry on with them,
and will do my best by each of you.
Please let me know your wishes, now if you like, or in a few
days.
It is my hope, if we have sufficient profits to justify it, and this
has nothing to do with how you vote, to present to each of you a
profit-sharing bonus at the end of the year.
Rohlik repeated parts of the speech, but departed from the text
thereof in only one instance-when he told the employees that, under
his management, they had always received a Christmas bonus, which
they had not received in the preceding year. After Rohlik read the
speech, he handed it to Weiner who repeated the speech to the
employees 2
The employees then he] d an impromptu conference and decided to
take a vote immediately. Rohlik asked the employees to select some-
one to conduct the voting and the employees chose Lloyd Brown. At
this point, Rohlik and Weiner moved about 40 feet away from the area
in which the employees were gathered and remained there until the
employees had finished voting.' Brown gave each employee a blank
piece of paper and an envelope. Each employee then went into the
manager's office,' wrote "union" or "no union" on the paper, placed the
paper in the envelope, sealed the envelope, left the office, and handed
the envelope to Brown. After all the employees had voted, Brown
tallied the ballots with the assistance of another employee. Weiner,
who had returned to the area, observed the opening and counting of
the ballots from a distance of approximately 8 feet, and Billbury, a
supervisor, either doublechecked Brown by making his own tally or
counted the total number of votes to make sure that it matched the
total number of employees who had voted.
2 Rohlik had the speech repeated because he did not speak English well and wanted to
be sure that the employees understood the speech.
S Rohlik and Weiner were still able to observe the voting procedure from their position.
4 The manager 's office was simply used as a "voting booth " There was no one in the
office while the balloting was in progress.
ROHLIK, INC. 1239
The tally, which showed there were 15 votes for, and 39 votes against,
the Union was then handed to Weiner' who announced the results to
the employees. Rohlik then told the employees that "the Union was
out" (or words to that effect), and that they would be called back to
work as needed.
Respondent began operations about a week after the January 23
meeting, or about January 30. It reemployed five to eight employees
to finish up an order which it took over from its predecessor and to
resume the cutting operation, the first step in its production process.
Thereafter, approximately the same number of employees was reem-
ployed each week as the several succeeding production operations were
resumed and, at the end of a month, Respondent had approximately
35 to 40 employees. Rohlik, Inc., is engaged in the salve business, at
the same location, and with the same equipment, as Rohlik, Incorpo-
rated. Its work force, although only one-third the size of its predeces-
sor's, consists almost entirely of employees who had been employed
by Rohlik, Incorporated.'
Within a few days after the above-described meeting, Johnson, the
union president and business agent, who had been informed about the
meeting by one of the employees, called Respondent and asked to
speak to Mr. Rohlik, but was referred to Mr. Weiner. Johnson told
Weiner that he wanted to talk to him about "the layoffs and recalls of
people which I had a contract for." Weiner replied, "Evidently you
haven't been brought up to date. The people have voted the Union
out in here." After Johnson again referred to the Union's contract
with Rohlik, Incorporated, Weiner directed him to contact Mr. Good-
man, Respondent's counsel. Johnson also sent a telegram to Rohlik
on January 28, 1963, which stated :
I am requesting a meeting with you in regards to Article VI
Section Two and Section Nine of our wage agreement. Please
confirm by return wire not later than 4 P.M. Wednesday Janu-
ary 30, 1963.
On January 30, 1963, Johnson met with Attorney Goodman in the
latter's office and contended, as he had to Weiner, that the contract
negotiated with Rohlik, Incorporated, was binding upon Rohlik, Inc.
Goodman explained that the contract was not binding upon Rohlik,
Inc., and further that the Union no longer represented a majority of
the employees. He also stated that, if the Union had a majority, he
s The ballots were handed to Weiner together with the tally, but there is no contention
that Respondent has been guilty of any misconduct relating to the retention of the ballots.
In fact, the ballots were turned over to the Board agent investigating the case, and it
appears that his examination failed to uncover any impropriety.
G Respondent's total employee complement at the time of the hearing numbered about
60 employees. Approximately 55 of these employees had been employed by Rohlik,
Incorporated.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be happy to negotiate a contract with it, to which Johnson re-
plied that he already had a contract.
On January 31, 1963, Johnson wrote Goodman a letter confirming
the subject of their meeting the preceding day and informing him
that unfair labor practice charges would be filed with the Board.'
On these facts, the Trial Examiner concluded that: (1) the speech
was not coercive; (2•) the private poll or "election" held at the Re-
spondent's request, in the circumstances of this case, was not unlaw-
ful; (3) therefore, the results of the poll or "election" furnished the
Respondent with reasonable grounds for a good-faith doubt as to the
Union's majority status; and (4) accordingly, the Respondent, al-
though found to be a successor employer, was justified in refusing to
recognize and bargain with the Union. We do not agree.
It is well established that, absent unusual circumstances, the ma-
jority status of a certified union is conclusively presumed during the
certification year, and that a successor employer, as well as the original
employer, is obligated to recognize and bargain with the certified
union as the collective-bargaining representative of its employees
during that period." After the certification year has elapsed, there is
a rebuttable presumption, derived from the certification, that the cer-
tified union continues to be the majority representative of the em-
ployees in the unit, and an employer, including a successor employer,
is obligated to continue to recognize and bargain with the certified
union.9 However, evidence sufficient to support a good-faith doubt of
the Union's majority status will serve as a defense to a refusal-to-
bargain charge.ia This case turns on the issue of whether the results
of the "vote" or poll taken at the Employer's request, in the circum-
stances of this case, gave rise to a good-faith doubt of the Union's
continuing majority status, and justified the Employers refusal to
recognize and bargain with the Union.ii
7 The text of the letter reads as follows:
This will confirm, our conversation during our meeting, Wednesday, January 30,
1963, at your office, in regard to my telegram of January 28, 1963 to Mr. Sigmund
Rohhk, about Article VI, Section 2 and Section 9 of our agreement with Rohlik, Inc
During our conversation, you informed me that Rohlik, Inc , does not recognize our
organization as the bargaining agent and that our contract is not in effect.
I informed you that Rohlilc, Inc , was in violation of the terms of the Contract
and in violation of their obligation to recognize and bargain with us, as the bargain-
ing agent, 'certified by the National Labor Relations Board
In view of Rohlik, Inc, failure to abide by the Contract and its refusal to recognize
and bargain with this Union, unfair labor practice charges will be filed with the
National Labor Relations Board.
8 Ray Brooks v NLRB, 34S U.S 96; Johnson Ready Mix Co, 142 NLRB 437,
Colony Materials, Inc, 130 NLRB 105; Ferchau Logging Company, Inc., 126 NLRB 1215.
6 The Richard W. Kaase Company, 141 NLRB 245; Downtown Bakery Corp., 139 NLRB
1352; Carter Machine and Tool Co., 133 NLRB 247.
10 Mitchell Standard Corporation, 140 NLRB 496; Diamond National Corporation,
133 NLRB 268.
"The certification year had expired when the Respondent took over the business.
As set forth above, Respondent is engaged in the same business, with the same equip-
ment, and with a reduced work force consisting almost entirely of the same employees, as
ROHLIK, INC. 1241
The Board has long viewed the polling of employees by an employer
concerning their union sympathies or affiliation as n form of interroga-
tion. Accordingly, the test applied in determining the legality or
illegality of such polls under Section 8(a) (1) of the Act is the test
which the Board adopted for interrogation in Blue Flash Express, Inc.,
109 NLRB 591-i.e., "whether under all the circumstances, the inter-
rogation reasonably tends to restrain or interfere with the employees
in the exercise of rights guaranteed by the Act." 12 At the time the 55
employees attended the meeting at which Rohlik made his speech and
the employees voted on the question of continued union representation,
the employees had all been terminated by their old employer, and had
not yet been employed by Rohlik, Inc., the Respondent. Although
Rohlik began his speech to the employees by saying, "I have called you
together to offer you a job in a new concern that I will manage," this
could hardly be construed, under the circumstances here present, as
instituting an employment relationship then land there. Rather, the
opening statement of Rohlik's speech was merely an expression of
intention to hire these employees, apparently at some time in the near
future.13 In our opinion, the employees could not reasonably have
concluded from the above-quoted statement that they had just been
hired.
We believe that asking employees to declare themselves in a poll with
respect to their desires for continued union representation, at a time
prior to their being employed by the employer, inherently restrains
and coerces employees in the exercise of their rights under the Act.
For employees who are asked to indicate their union sympathies in
these circumstances cannot reasonably be expected to vote free of
concern as to whether their chances for prospective employment will
be affected by the outcome of the poll.
Moreover, Respondent had no legitimate purpose in asking for a
poll of the employees. The Union's majority status had been deter-
mined in a Board representation election a little more than a year
its predecessor , Rohllk, Incorporated . Accordingly , we find , in agreement with the Trial
Examiner , that Respondent is a successor -employer. N .L.R B. v. McFarland, et at,
306 F 2d 219 (CA 10), enfg. 131 NLRB 745; N.L.R.B. v. Auto Ventshade, Inc, 276
F. 2d 303 (CA. 5), enfg 123 NLRB 451 ; N.L.RB. v. Armato, 199 F. 2d 800 (CA. 7),
enfg. 97 NLRB 971.
12 Emma Gilbert et at, d /b/a A. L. Gilbert Company, 110 NLRB 2067, 2071-2072 In
developing this test in subsequent cases , the Board has regarded as significant, (1) the
employer ' s purpose in taking the poll ; ( 2) whether the employees were given assurances
that they were free to vote as they pleased and that there would be no reprisals , regard-
less of the outcome of the poll; ( 3) whether the poll occurred in a context of hostility
toward the union or contemporaneous unfair labor practices See, for example , Western
Reserve Telephone Company, 138 NLRB 755 , enfd 323 F . 2d 564 ( CA. 6, 1963 ) ; Thomas
J Aycock, Jr, d/b/a Vita Foods , 135 NLRB 1357 ; Ofner Electronics , Inc., 134 NLRB
1064; Frank Sullivan and Company, 133 NLRB 726; Stewart Hog Ring Company, Inc.,
131 NLRB 310.
13 As described supra, at the end of the meeting Rohlik simply told the employees that
they would be called back as needed . Several of the employees who attended the meeting
were not rehired until March 21, 1963, 8 weeks after the meeting
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before it repurchased the business. Respondent, as far as the record
shows, had not received a single indication of any sort that there had
been any change in employee sentiment. We believe that the poll
reflected Respondent's rejection of its obligation, as a successor em-
ployer, to recognize and bargain with a union selected at a time prior
to its acquisition of the business, by employees who were then employed
by another employer. As such, this conduct was calculated to discour-
age the continued union adherence of the employees.
Accordingly, we find that the poll or vote requested by the Respond-
ent, in the circumstances of the instant case, violated Section 8 (a) (1)
of the Act.14
As the poll was held under the influence of the above-described
pressures, it follows that the results thereof cannot be held to represent
the free choice of the employees. Thus, the Employer's claimed good-
faith doubt of the Union's majority status is without any valid sup-
port. Accordingly, we find that the Respondent violated Section 8 (a)
(5) and (1) of the Act when, on or about January 30, 1963, and con-
tinuing thereafter, it refused the Union's request for recognition and
bargaining.15
But even in the absence of a finding that the Respondent violated
Section 8 (a) (1) of the Act by requesting its prospective employees to
poll themselves on the question of continued union representation,
we would still find that the Respondent's conduct violated Section
8(a) (5) of the Act. In view of our finding herein that Respondent
was a successor employer, it follows that the Respondent became
obligated to recognize the Union as the collective-bargaining rep-
resentative of its employees and to bargain with the Union on ap-
propriate bargaining subjects. Contrary to such obligation, however,
and in anticipation thereof, the Respondent sought to undermine
the Union's support by persuading the employees to reject the Union
and deal with the Employer directly. We believe that once employees
have chosen a representative for the purpose of collective bargaining
and the obligation to recognize and bargain with such representative
has been imposed by law, a successor employer may not, as here, seek
at the threshold to evade what would generally be its statutory obliga-
tion by urging those employees it is about to hire to desert the
"See the cases cited at the end of footnote 12, supra. Members Fanning and Brown
would also find that the speech which Rohlik made to the employees violated Section
8(a) (1) of the Act. In their opinion, the impression which was reasonably created by
the speech, and which Respondent sought to create, was that the employees' prospective
employment was conditioned on their rejection of the Union. Accordingly. Members
Fanning and Brown would find that Respondent had no good-faith doubt of the Union's
majority for this reason, as well as those set forth infra.
15 It is clear from the facts recited above that the Union's request for recognition and
bargaining included, inter area, a request that the Respondent administer certain provi-
sions of the collective-bargaining agreement between the Union and Respondent's prede-
cessor As Respondent had not assumed and was not bound by the contract, and therefore
was not obligated to bargain concerning its administration, Respondent's refusal to bargain
with respect thereto was not unlawful.
ROHLIK, INC. 1243
collective-bargaining representative they have chosen in the exercise
of their rights under the Act, and then claim, after its conduct proved
effective, the existence of a good-faith doubt as to the union's majority
status. A good-faith doubt is not a "doubt" which has been prompted,
encouraged , and solicited by the employer. The Respondent knew that
the employees had chosen the Union as their collective bargaining
representative, that the Union had been certified by the Board, and
that the Union had negotiated a contract with Respondent's prede-
cessor,16 the latter occurring only a little more than a year prior to
its purchase of the business.17 On the other hand, there was not a
shred of evidence, nor did Respondent even allege, that the employees
were in any way dissatisfied with their collective-bargaining rep-
resentative. Indeed, the Respondent appears to concede that, were
it not for the results of the poll adverse to the Union, it would have
bargained with the Union. In these circumstances, we find that the
Respondent lacked a good-faith doubt of the Union's majority status,
and accordingly violated Section 8(a) (5) and (1) of the Act in refus-
ing on or about January 30, 1963, and thereafter to recognize and
bargain with the Union.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices in violation of Section 8(a) (1) and (5) of the Act,
we shall order it to cease and desist from such practices and to take
certain affirmative action which the Board finds necessary to effectuate
the policies of the Act.
CONCLUSIONS of LAW
The Board, on the basis of the foregoing facts and the entire record,
concludes as follows :
1. Rohlik, Inc., is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Local Union 267, Allied Industrial Workers of America, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees of Rohlik, Inc., em-
ployed at its plant in Detroit, Michigan, including inspection, pack-
ing, shipping, receiving, and utility employees, but excluding office
clerical employees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of 'Section 9 (b) of the Act.
4. At all times since January 30, 1963, Local Union 267, Allied In-
dustrial Workers of America, AFL-CIO, has been and continues to
19 All this is apparent from the speech Rohlik delivered at the January 23 meeting
17 Rohlik retired about the same time the Union was certified.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be the exclusive bargaining representative of all employees in the unit
found appropriate herein within the meaning of Section 9(a) of the
Act.
5. By polling its employees to determine their union sympathies and
desires at a time prior to their being employed, and for the purpose
of discouraging union adherence, Respondent Rohlik, Inc., has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
6. By failing and refusing to bargain collectively with Local Union
267, Allied Industrial Workers of America, AFL-CIO, at all times
since January 30, 1963, the Respondent has violated and is violating
Section 8(a) (5) and (1) of the Act.
7. The above-said unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent Rohlik, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Polling its employees to determine their union sympathies and
desires in a manner constituting interference, restraint, and coercion
within the meaning of Section 8(a) (1) of the Act.
(b) Refusing to recognize or bargain collectively with Local Union
267, Allied Industrial Workers of America, AFL--CIO, as the exclu-
sive bargaining representative of its employees in the production and
maintenance unit found appropriate herein.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Local Union 267, Allied
Industrial Workers of America, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local Union 267, Allied
Industrial Workers of America, AFL-CIO, as the exclusive bargain-
ing representative of all its employees in the production and mainte-
ROHLIK, INC. 1245
nance unit found appropriate herein with respect to rates of pay,
hours of employment, and other terms and conditions of employment,
and embody any understanding reached in a signed agreement.
(b) Post at its plant in Detroit, Michigan, copies of the attached
notice marked "Appendix." 18 Copies of said notice, to be furnished
by the Regional Director for the Seventh Region, shall, after being
duly signed by Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted. Re-
spondent shall take reasonable steps to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
18 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT poll our employees to determine their union sym-
pathies and desires in a manner constituting interference, re-
straint, and coercion within the meaning of Section 8(a) (1) of
the Act.
AVE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
Local Union 267, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3)
of the Act, as amended.
WE WILL, upon request, bargain collectively with Local Union
267, Allied Industrial Workers of America, AFL-CIO, as the ex-
clusive bargaining representative of all our production and main-
tenance employees, with respect to rates of pay, hours of employ-
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and other terms and conditions Of employment, and will
embody any understanding reached in a signed agreement.
ROHLIK, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan, Telephone No. 963-9330, if they have any question concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on February 1 and March 22, 1963, a complaint was issued
on March 28, 1963, alleging that Respondent, Rohlik, Inc., a successor of Rohlik,
Incorporated, had violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended. Respondent filed an answer, denying that it had engaged
in any unfair labor practice
Pursuant to notice, a hearing was held before Trial Examiner Fannie M. Boyls at
Detroit, Michigan, on May 6 and 7, 1963. Upon the conclusion of the hearing,
counsel for the General Counsel and for Respondent argued orally and thereafter
each submitted a brief, which I have carefully considered.
Upon the entire record in this proceeding and from my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Rohlik, Inc., is a Michigan corporation, maintaining its office and
place of business in Detroit, Michigan, where it is engaged in the manufacture, sale,
and distribution of radio and camera cases, gadget bags, and related products. Since
commencing its operations, it has shipped products valued in excess of $4,500 a
month outside the State of Michigan and expects to continue to do so. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the Act for the Board to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 267, Allied Industrial Workers of America, AFL-CIO, herein called
the Union, is a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES ALLEGED
A. The issues
Slightly over a year after the Union had been certified as bargaining representative
of the production and maintenance employees of Rohlik, Incorporated, and when
its 2-year contract with that company had been in effect for less than a year, Re-
spondent, as a bona fide successor, acquired the business. Before starting its pro-
duction operations, Respondent summoned to the plant a nucleus of less than half
of the most efficient former employees of Rohlik, Incorporated, whom it expected to
hire in commencing its operations, and, under circumstances related in more detail
hereinafter, requested them to vote on whether they wanted the Union to continue
to represent them. In the balloting which immediately followed, a majority voted
against representation by the Union. Respondent thereafter denied the Union's
request for recognition and bargaining, asserting that the employees had rejected the
Union as their representative.
ROHLIK, INC. 1247
The questions to be decided are whether Respondent , by requesting the poll of its
prospective employees under the circumstances of this case and thereafter refusing
to bargain with the Union because of the results of that polling , violated Section
8(a) (1) and ( 5) of the Act. The subsidiary facts, with respect to which there is no
substantial dispute, are set forth below.
B. The subsidiary facts
The business here involved was owned and operated by Sigmund Rohlik from
1940 until about 1958 when he sold it to Prince Gardner Company, which thereafter
operated the business under the name of Rohlik, Incorporated . Sigmund Rohlik
remained with the new owners as manager until January 1962 when, due to his age,
he decided to retire from the business.
Prior to Rohlik's retirement , however, the Union had started organizing the em-
ployees and had conferred with Rohlik about recognition . Thereafter , following
an election conducted by the Regional Office of the Board , the Union was certified
on January 10, 1962, as the bargaining representative of the production and main-
tenance employees . As the result of negotiations with the Company 's Vice Presi-
dent Singleton , a contract was signed on March 29 , 1962, which was to be in effect
until March 19, 1964. The contract provided , among other things, for a union shop
and a checkoff of dues and initiation fees.
After Rohlik's retirement , the business of Rohlik , Incorporated , began to decline
and during the latter part of the year 1962 , it lost its biggest customer, Argus Camera,
which had theretofore supplied about 60 percent of the business of the concern both
before and after its ownership by Rohlik. Just before Christmas, Vice President
Singleton informed the Union 's business agent, James H. Johnson , of the loss of this
large account and advised him that Rohlik , Incorporated , was contemplating going
out of business . He requested Johnson to keep this information confidential and
agreed that at an appropriate time the two of them would go before the employees
and explain the situation , so that the Union would not be blamed for causing the
Company to go out of business . Singleton , however, failed to notify Johnson of the
sale of the business.
On or about January 17, 1963, the employees were notified of their termination
by Rohlik, Incorporated, which on the same day transferred its business to a corpora-
tion called R & P, Incorporated . The latter soon thereafter changed its name to
Rohlik, Inc., the Respondent herein. Sigmund Rohhk owns 51 percent of the stock
and is president of Respondent , and Milton Weiner, who has had no previous
experience in this type of business , owns 49 percent of the stock and is vice president.
The bill of sale executed by Rohlik , Incorporated , covered most of the inventories,
the raw materials , work in process , and finished goods. The transfer of personal
property included all machinery , equipment , furniture , and dies. Sigmund Rohlik
owned the building in which the business was operated and in 1958 had leased the
building to Rohlik, Incorporated . This lease had 8 years to run at the time of the
1963 sale and, as a part of the sales agreement , Rohlik agreed to relieve Rohlik,
Incorporated , of its obligations under the lease in return for a transfer of the
equipment to Respondent . Although acquiring the assets of Rohlik, Incorporated,
Respondent did not assume the Union contract or any liabilities of Rohlik,
Incorporated.
In prior years, both before and after the acquisition of the business by Rohlik,
Incorporated , the sale of products had declined drastically after Christmas and
production employees were normally laid off for a period of about 2 months, usually
in January and February. Prior to the sale of the business to Respondent , however,
Rohlik, Incorporated , had converted most of its inventories to cash and, in order
to build up an inventory for customers it expected to acquire as well as to finish
a small order for Argus Camera, Respondent commenced production operations on
a limited scale about the first of February 1963.
Preparatory to commencing operations , Respondent requested previous super-
visors of Rohlik, Incorporated, whom it hired, to make a list of about 55 of the most
efficient production employees of Rohlik, Incorporated , so that it could offer them
employment and prevent the dissipation of a valuable and experienced labor pool.
These employees were notified by postal card or by telephone to report to the plant
on January 23 for an "important meeting."
When the approximately 55 employees reported to the plant at the appointed
time on January 23, Sigmund Rohlik introduced Vice President Milton Weiner
as his partner in the business , then read to them the following statement:
I have called you together to offer you a job in a new concern that I will
manage. The old concern had to give up its Detroit operations not because
it ran out of business-business was good-but because it ran out of profits
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and suffered heavy losses. These losses put Printz -Gardner Co . out of business
in Detroit and put all of you out of your jobs. I have bought the machines from
the old owners and am starting up a new business in the hope and belief that we
can do better . I will have a job for you so long as I can make profit in this
business.
But it is possible that I could fail and like Printz-Gardner be compelled to
close up; and this result will surely happen if I do not have your help to make
production efficient . Experience has shown that each worker in this trade has to
produce $ 1,100 plus worth of product per month to justify steady employment.
When you worked for me before, you were not represented by a union, but
we were able to get along well. I believe you liked it that way , for you felt
you could take up your problems with me and be assured of fair treatment.
Since I left, a union has been certified as your bargaining representative Even
though this is a new business and the contract is not binding on the new owners,
I am advised that your appointment of the union as your bargaining agent is
binding if you do not vote to quit the union . I believe we would both be
happier if you and I could solve our problems together personally , but I am
not allowed to take up a single matter with you, unless you first vote that you
no longer want to be represented by the union . It is your privilege to do so.
But if you should vote that you still want to be represented by the union, I for
my part will do my best to carry on with them , and will do my best by each of
you.
Please let me know your wishes , now if you like , or in a few days.
It is my hope, if we have sufficient profits to justify it, and this has nothing
to do with how you vote, to present to each of you a profit-sharing bonus at
the end of the year.
As he read the statement , Rohlik would repeat certain parts, for emphasis, and
occasionally would expand a little, as when reminding the employees that when he
had previously operated the plant, he had always been able to give them a Christmas
bonus, something which they had not received during the preceding year. I am
convinced , however, on the basis of all the testimony , that he did not make any
significant departure from the text of the speech set forth above while delivering it.
When he finished reading the statement, he handed it to Weiner and asked the latter
also to read it to the employees . Weiner did so.
After the statement had thus been read, Rohlik asked that the employees hold
an election "now or later" and let him know whether they wanted the Union to
represent them. Someone suggested that a vote be taken then and there , and no one
opposed this suggestion . Rohlik then told the employees to select a "chairman"
to supervise the conduct of the balloting. They chose Lloyd Brown, a cutter. A
brother of Vice President Weiner, who was apparently employed in the office, brought
out some envelopes with a blank piece of paper in each and gave them to Brown.
The employees then , one at a time , went into the manager 's office , voted for or
against the Union , placed their unsigned ballots in the envelopes , sealed the
envelopes , and handed them to Brown who marked a number on each envelope to
keep an account of the number voting . Brown , with the assistance of another
employee, then counted the ballots . Weiner , although observing the tallying from
about 8 feet away, did not participate except that on one occasion he deciphered the
handwriting on a ballot when Brown could not decide whether it was an affirmative
or negative vote. The completed tally and the ballots were given to Weiner, who
announced that 39 employees had voted against and 15 for representation by the
Union.
. The meeting ended with Rohlik announcing that he would call the employees as
they were needed . These employees , or most of them, were thereafter gradually
recalled.' Six or seven new employees were also hired.
In the meantime , the Union's business agent, Johnson, although never officially
notified of the sale of the business by Rohlik, Incorporated, and its purchase by
Respondent , Rohlik, Inc., had learned from employees about the termination letters
they received from Rohlik , Incorporated , and about some of the employees receiving
notices to attend the January 23 meeting . On January 28, Johnson sent a telegram
to Sigmund Rohlik , requesting a meeting to discuss certain portions of the union
contract . He later called the plant and asked to speak with Rohlik but was
i At least one of these employees , Maria Bresnahan. who was a member of the Union's
bargaining committee , had not been recalled by the date of the hearing , but another em-
ployee , Robbie Massey, chairman of the Union's bargaining committee , who had not been
invited to the meeting , was recalled The complaint does not allege any unlawful dis-
crimination in connection with the recalls.
ROHLIK, INC. 1249
referred to Weiner instead. He told Weiner he wanted to discuss the layoff and
recall of employees covered by the union contract. Weiner replied, "Evidently you
haven't been'brought up to date . . The people have voted the Union out in
here." When Johnson again asked to speak with Rohlik, be was directed to see
Respondent's counsel, Goodman.
Johnson met with Goodman on January 30 and again asserted that he wanted to
discuss the layoff and recall of employees in accordance with the terms of the union
contract, which he considered was still in effect. Goodman explained that Rohlik,
Inc., was a new company, not the same as Rohlik, Incorporated, and that the con-
tract was not binding on Rohlik, Inc. Johnson replied, "I don't care who owned
the company. I go by the name, and to me it is the same name, and the contract is
binding." Goodman also explained that the employees had voted the Union out
and that the Union was no longer their representative, but Johnson took the position
that "it takes proceedings to decertify." Goodman stated that if he were satisfied
that the Union represented a majority of Respondent's employees, he would be glad
to negotiate a contract with it. Johnson replied that he already had a contract.
On the following day, January 31, Johnson wrote Goodman a letter, confirming
the significant portions of their January 30 interview and stating that in view of
Respondent's "failure to abide by the Contract and its refusal to recognize and
bargain with this Union," unfair labor practice charges would be filed.
C. Analysis and conclusions
Despite some differences in the composition and operation of Respondent and
Rohlik, Incorporated, which Respondent has pointed out in its brief-such as the
employment by Respondent as general plant manager of a man who had formerly
served as manager for Sigmund Rohlik when he owned the business as an individual
but who had not worked for Rohlik, Incorporated, the employment by Respondent
of less than half of the former employees of Rohlik, Incorporated, a few changes in
the supervisory status of its personnel, and the addition of instrument cases to the
types of cases manufactured by Respondent-there can be no real question but that
Respondent is a successor employer. It operates in the same building, uses the same
machinery and equipment, manufactures the same general kind of product, uses
the same kind of materials and skills, and almost all its production and maintenance
force was formerly employed by Rohlik, Incorporated.2 Respondent, however, w