Allentown Mack Sales

National Labor Relations Board - Board Decisions

Apr 12, 1995

316 N.L.R.B. 1199 (N.L.R.B. 1995)

1199
316 NLRB No. 182
ALLENTOWN MACK SALES
1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions 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. In adopting the judge’s credibility determinations, we do
not rely on the adverse inference he drew from the General Coun-
sel’s failure to recall Ron Mohr as a rebuttal witness.
2 We therefore find it unnecessary to pass on the General Coun-
sel’s exception to the judge’s finding that Mack, rather than the Re-
spondent, advertised truck modification services.
3 The judge, however, indicated that the employees hired were a
representative complement of the former bargaining unit, because
nearly all of the Respondent’s service and parts employees were
former bargaining unit members. In so doing, the judge inadvertently
commingled two separate concepts; there is no such thing as a ‘‘rep-
resentative complement of the former bargaining unit.’’ ‘‘Substantial
and representative complement’’ refers to the successor employer’s
level of employment and operations, not to the number of employees
formerly employed by the predecessor. The Board finds that a bar-
gaining obligation attaches when the successor has hired a substan-
tial and representative complement of employees and a majority of
those employees had been employed by the predecessor. See discus-
sion in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 46–52
(1987). That was the case here in January 1991.
4 We therefore find it unnecessary to pass on the General Coun-
sel’s and the Union’s exceptions to the judge’s findings that the Re-
spondent could properly rely on statements by Jon McKilvie and
Scott Murphy to support a reasonable doubt as to the Union’s con-
tinued majority status.
In discounting statements made in employment interviews by Ron-
ald Mohr and Mike Ridgick because those applicants had been told
in their interviews that the new company would be nonunion, the
judge cited Phoenix Pipe & Tube Co., 302 NLRB 122 fn. 2 (1991),
enfd. 955 F.2d 852 (3d Cir. 1991). Although the cited reference was
to then Chairman Stephens’ personal footnote, and not to the deci-
sion of the Board, the judge’s finding was consistent with Board
precedent. See Middleboro Fire Apparatus, 234 NLRB 888, 894
(1978), enfd. 590 F.2d 4 (1st Cir. 1978).
5 Mack operated the Allentown facility until December 20, 1990.
The Respondent began operating the facility on December 21.
6 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
Allentown Mack Sales & Service, Inc. and Local
Lodge #724, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO.
Case 4–CA–19516
April 12, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On January 24, 1992, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party filed
cross-exceptions, supporting briefs, and answering
briefs, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified herein and to adopt the rec-
ommended Order.
The judge found that the Respondent is the succes-
sor to Mack Trucks, Inc. (Mack) and that it had not
demonstrated that it harbored a reasonable doubt,
based on objective considerations, as to the incumbent
Union’s continued majority status after the transition.
He therefore found that the Respondent violated Sec-
tion 8(a)(5) and (1) by conducting a poll of the unit
employees to determine their desires for continued
union representation, and by declining to extend rec-
ognition to the Union on the basis of the results of the
poll, which the Union lost. The judge did not, how-
ever, find that the Respondent unlawfully refused to
bargain with the Union prior to the poll.
The Respondent has excepted to the judge’s finding
that it lacked a reasonable doubt that the Union contin-
ued to enjoy majority support, and to all of the viola-
tions he found. The General Counsel and the Union
have excepted to the judge’s failure to find that the
Respondent’s refusal to bargain prior to the poll vio-
lated Section 8(a)(5) and (1), and to his failure to find
that the poll constituted an independent violation of
Section 8(a)(1).
We adopt the judge’s findings that the Respondent
is Mack’s successor2 and that it had hired a substantial
and representative complement of employees at the
time it is alleged to have violated the Act.3 We also
adopt his finding that the Respondent has not dem-
onstrated that it held a reasonable doubt, based on ob-
jective considerations, that the Union continued to
enjoy the support of a majority of the bargaining unit
employees.4 In this regard, we agree with the judge
that the Union did not waive its right to represent the
employees by entering into an agreement with Mack
which provided in part that ‘‘[t]he current Agreement
between the parties will be rendered null and void as
of the close of business on December 20, 1990.5 Any
and all grievances filed or to be filed are to be consid-
ered settled as of this date.’’ We find no merit to the
Respondent’s argument that, because the only evidence
of Mack’s recognition of the Union is the contractual
recognition clause, the Union waived its right to rec-
ognition by signing the above agreement. The waiver
of a statutory right must be clear and unmistakable and
will not be inferred merely from a general contractual
provision.6 The general statement that the contract will
become null and void as of the time the Respondent
took over operations from Mack contains no clear and
unmistakable indication that the parties intended to put
an end to the Union’s representative status. Accord-
ingly, the judge properly found that the Respondent
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In any event, the Respondent bears the burden of establishing
that it reasonably doubted the Union’s majority status. See, e.g.,
Laidlaw Waste Systems, 307 NLRB 1211 (1992). The Respondent
has not met its burden of showing that Mohr made his statement
after the interviews. Dwyer could not remember the actual date in
December on which he talked to Mohr; he testified that it was ‘‘ap-
proximately the 15th or so.’’ Mohr testified that the conversation
took place in December, before the Respondent took over the facil-
ity; he did not say whether it was before or after the interviews. The
Respondent therefore has not demonstrated that Mohr was referring
to the Respondent’s employee complement when he said that the
Union would lose a vote of the employees. In this regard, this case
is distinguishable from J & J Drainage Products, 269 NLRB 1163
(1984), in which the Board relied on a steward’s statement, made
after the successor employer took over the facility, that the employ-
ees did not want a union.
8 The Respondent relies on several decisions which, it alleges, re-
quire the opposite result. We disagree. As is evident from the Re-
spondent’s brief, those cases are factually distinguishable from this
one in numerous respects. In particular, Universal Life Insurance
Co., 169 NLRB 1118 (1968); Machinists Lodges 1746 & 743 v.
NLRB, 416 F.2d 809 (D.C. Cir. 1969); and NLRB v. Randle-Eastern
Ambulance Service, 584 F.2d 720 (5th Cir. 1978), all involved state-
ments by union bargaining representatives or attorneys concerning
loss of support. Those individuals evidently were in a better position
to know the sentiments of employees overall than was Mohr, who
as a steward represented only the service employees. They were also
more obviously speaking for their respective unions than was Mohr,
and therefore the employers were more justified in relying on their
remarks as admissions on the part of the unions than the Respondent
was in relying on Mohr’s statement. In Naylor, Type & Mats, 233
NLRB 105 (1977), the administrative law judge accepted an employ-
ee’s statement that he was personally unhappy with the union and
that ‘‘people in the front and back’’ did not recognize the union as
evidence that the union lacked majority support; however, the judge
evidently considered that statement only as indicating that the speak-
er opposed the union, not that others did. The judge also held that
the employer could rely on remarks by two employees that they had
actually taken head counts and enumerated the employees who sup-
ported and who opposed the union. The Respondent relies on no
such testimony. Finally, to the extent the court decisions are incon-
sistent with Board law, we respectfully decline to follow them.
9 Texas Petrochemicals Corp., 296 NLRB 1057, 1058–1063
(1989). We agree with the judge that the showing made by the Re-
spondent (6 or 7 employees opposed to the Union out of a bargain-
ing unit of 32) would be insufficient to meet even the more lenient
standard for polling endorsed by several courts of appeals. See
Member (then Chairman) Stephens’ concurring opinion in Texas Pe-
could not legitimately rely on the Union’s agreement
with Mack as a basis for forming a reasonable doubt
that the Union still represented a majority of the unit
employees.
The Respondent contends that the judge erred in
finding that the Respondent could not legitimately rely
on a statement by Ronald Mohr, the Union’s service
department steward, as a basis for doubting the
Union’s majority status. According to the credited tes-
timony of the Respondent’s president, Robert Dwyer,
Mohr told Dwyer before the transition that ‘‘with a
new company that if we took a vote that the union
would lose, and that it was his feeling that the guys
didn’t want a union.’’ The Respondent argues that that
statement, made by a ‘‘Union official,’’ was probative
of a loss of majority on the part of the Union.
The judge, however, found (among other things) that
Mohr made that statement in December 1990, before
the Respondent’s supervisors began to interview
Mack’s employees for possible employment in the new
company. The Respondent hired only 23 of Mack’s 32
service employees and only 7 of its 11 parts employ-
ees, as well as a janitor and a computer operator who
had been in the Mack bargaining unit. The judge found
that when Mohr made his remark to Dwyer, he was re-
ferring to Mack’s existing employee complement, not
to the individuals who were later hired by the Re-
spondent, and reasoned that ‘‘Certainly the composi-
tion of the complement of employees hired would bear
on whether this group did or did not support the
Union.’’ He further found that Mohr was not in a posi-
tion to speak for the parts employees. The Respondent,
in exceptions, contests the judge’s finding that Mohr
was referring to Mack’s employee complement, not the
Respondent’s, and argues that Mohr’s comments
should be given more weight than equivalent remarks
of a rank-and-file employee because he was a union
steward.
We find no merit to those contentions. Although the
record does not clearly establish exactly when Mohr
made his statement to Dwyer, Dwyer was asked to de-
scribe all statements made by employees before the
December interviews that indicated a loss of employee
support for the Union. Mohr’s was one of the state-
ments recounted by Dwyer, with no indication that the
timeframe had changed. Accordingly, we find that the
record supports the judge’s finding that Mohr made his
remark before the interviews had been conducted, and
thus that the judge was warranted in inferring that
Mohr must have been referring to Mack’s employee
complement, not the Respondent’s.7 We also agree
with the judge that, as steward for the service depart-
ment, Mohr had no more basis than any other em-
ployee for reporting the union sentiments of employees
in the parts department. For the above reasons, as well
as the others discussed by the judge, we adopt the
judge’s finding that the Respondent could not rely on
Mohr’s statement as a basis for doubting the Union’s
majority status.8
We agree with the General Counsel and the Union
that the judge erred in finding that the Respondent did
not unlawfully refuse to bargain by informing the
Union in its January 25 letter that it would not recog-
nize and bargain with the Union until it received the
results of its February 8 poll of the unit employees.
(The judge reasoned that the Respondent ‘‘merely
postpone[d] that decision until the results of the em-
ployee poll [were] known.’’) As the judge properly
found, however, the Respondent lacked a reasonable
doubt of the Union’s continued majority status and
therefore was not entitled to take the poll at all.9 Thus,
1201ALLENTOWN MACK SALES
trochemicals, supra at 1065–1066. Member Stephens would affirm
the judge’s finding on this point for the reasons discussed in that
concurrence.
The judge found that the Respondent violated Sec. 8(a)(5) and (1)
by taking the poll. As the complaint does not allege an 8(a)(5) viola-
tion in this regard, we find only that the poll violated Sec. 8(a)(1).
Because we find that the Respondent was not entitled to conduct the
poll, we find it unnecessary to decide whether the judge correctly
found that the Respondent provided the Union sufficient advance no-
tice of the poll under Texas Petrochemicals, supra.
10 See, e.g., Lee Lumber & Building Material Corp., 306 NLRB
408, 410, 419–420 (1992) (employer violated Sec. 8(a)(5) by delay-
ing bargaining for several weeks on the basis of a pending decerti-
fication petition, contrary to Dresser Industries, 264 NLRB 1088
(1982)).
11 Texas Petrochemicals, supra at 1064. As the Respondent was
not entitled to rely on the results of the tainted poll in refusing to
recognize and bargain with the Union after February 8, neither could
it rely on those results to validate its earlier unlawful refusal to bar-
gain. Thus, there is no merit to the Respondent’s argument that the
poll was lawfully taken in preparation for its defense to the pending
unfair labor practice charge, because the results of the poll could not
have been used in that defense. Cf. NLRB v. Johnnie’s Poultry Co.,
344 F.2d 617 (8th Cir. 1965).
12 To remedy the Respondent’s unlawful refusal to recognize and
bargain with the Union, the judge imposed an affirmative bargaining
order. In exceptions, the Respondent argues only that it did not vio-
late the Act, not that a bargaining order is an inappropriate remedy
for an unlawful refusal to recognize and bargain with an incumbent
union. In any event, an affirmative bargaining order is the standard
Board remedy for such a violation. See Williams Enterprises, 312
NLRB 937, 940 (1993). We find, for the reasons discussed in that
decision, that the judge imposed the appropriate remedy here.
1 All dates are in 1990 unless otherwise noted.
2 The recognized appropriate unit of employees is as follows:
All shop employees, shop clerk and partsmen who perform work
of the classifications outlines in Article XII of the Collective-
Bargaining Agreement. Excluded shall be all office clericals,
watchmen, drivers, salesmen, foremen and other supervisors as
defined in the Labor Management Relations Act of 1947.
it had no ‘‘decision’’ to make, let alone postpone. Its
duty was to bargain, not to wait for the outcome of an
unlawful poll before it made up its mind to comply
with its statutory obligations. An employer may not
delay bargaining while it awaits the outcome of an
event it may not insist on taking place to begin with.10
Consequently, the Respondent violated Section 8(a)(5)
and (1) by refusing to bargain pending the outcome of
the poll.
We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by refusing to recog-
nize and bargain with the Union on the basis of the
results of the poll. We agree with the judge that, be-
cause the poll itself was an unfair labor practice, the
Respondent could not lawfully rely on the results of
the poll in declining to recognize the Union.11
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Allentown Mack Sales and
Service, Inc., Allentown, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.12
Richard Heller, Esq., for General Counsel.
George S. Flint, Esq., of New York, New York, for the Re-
spondent.
Dennis P. Walsh, Esq., of Philadelphia, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Local
Lodge #724, International Association of Machinists and
Aerospace Workers, AFL–CIO (the Union) filed a charge on
January 22, 1991, against Allentown Mack Sales & Service,
Inc. (Respondent). The Union filed an amended charge on
February 14, 1991. Based upon these charges, the Regional
Director for Region 4 issued complaint and notice of hearing
on March 27, 1991, alleging, inter alia, that Respondent has
engaged in conduct in violation of Section 8(a)(1) and (5) of
the National Labor Relations Act. Respondent filed timely
answer admitting certain of the complaint allegations, includ-
ing jurisdiction and labor organization status of the Union,
but denying that it has committed any unfair labor practice.
Hearing was held in these matters on October 15 and 16,
1991, in Philadelphia, Pennsylvania. Briefs were received
from all parties on or about December 16, 1991. Based upon
the entire record, including my observation of the demeanor
of the witnesses, and after consideration of the briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engages in the retail sale and
repair of new and used trucks and parts at its facility located
in Allentown, Pennsylvania. It is admitted and I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and the Issues for Determination
The Respondent sells and repairs new and used trucks and
sells truck parts at a single facility in Allentown, Pennsyl-
vania. The facility was owned and operated by Mack Trucks,
Inc. (Mack) as a factory branch until December 20, 1990.1
The Union represented a unit of Mack Truck’s service and
parts employees at this facility, and its final collective-bar-
gaining agreement with Mack Trucks was effective by its
terms from September 15, 1989, through September 15,
1992.2
By memorandum of understanding dated December 5, the
Respondent and Dwyer Holdings, Inc. purchased certain as-
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The complaint alleged January 25, 1991, as the date Respondent
refused to recognize the Union. General Counsel amended the com-
plaint at the hearing to allege the earlier date.
4 Respondent asserts that General Counsel failed to establish the
manner in which the Union became recognized as the representative
of the involved unit of Mack employees. Whether the Union was
certified by the Board or voluntarily recognized by Mack, it still is
entitled to the presumption of continued majority status and to be
recognized by a successor.
sets of Mack at or relating to the Allentown facility. The Re-
spondent commenced operating on December 21.
By letter dated January 2, 1991, and received by Respond-
ent on January 7, the Union requested recognition and bar-
gaining over a collective-bargaining agreement with respect
to unit employees. On January 25, 1991, the Respondent, by
letter, declined to extend recognition until further investiga-
tion, citing a good-faith doubt as to the Union’s majority sta-
tus among unit employees. Pursuant to notice given in this
letter, the Respondent held a poll of its employees on Feb-
ruary 8, 1991, wherein the majority of employees voting in-
dicated they did not want to be represented by the Union.
By letter dated February 12, 1991, the Union rejected the re-
sults of the poll. There has been no further communication
between the parties, except through the filing of charges with
the Board.
Given these background facts, the complaint alleges the
following facts which give rise to the allegations of violation
of Section 8(a)(1) and (5) of the Act:
1. On or about February 8, 1991, the Respondent, acting
through Robert J. Dwyer, at the Allentown facility, interro-
gated its employees regarding their union membership and
sympathies.
2. On or about January 2, 1991, the Union, by letter from
Michael J. Walsh, business representative, to Robert J.
Dwyer, requested the Respondent to recognize it, and to bar-
gain collectively with it, as the exclusive representative of
the unit with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
3. Since on or about January 7, 1991, the Respondent has
failed and refused to recognize and bargain with the Union
as the exclusive representative of the unit.3
General Counsel asserts that Respondent is a successor to
Mack with respect to its obligation to recognize and bargain
with the Union as representative of the employees in the
unit. He also asserts that the Respondent unlawfully interro-
gated its employees in the unit and that the Respondent can-
not lawfully rely on the results of a poll to refuse to recog-
nize the Union. Respondent asserts that it is not a successor,
that it had a good-faith doubt with respect to the Union’s
majority status among its unit employees, and that in fact,
the Union did not enjoy majority status.
B. Was the Respondent a Successor Employer and was
the Union Entitled to a Presumption of Majority Status
Among the Affected Employees of Respondent?
As noted above, Mack Trucks, Inc. operated the involved
facility as a factory branch until it sold the facility to Re-
spondent and designated Respondent as an independent deal-
ership on December 20, 1990. Since 1973, Mack had recog-
nized the Union as the exclusive representative of a unit of
its employees, primarily service department mechanics and
parts department employees. Successive collective-bargaining
agreements had been entered into between Mack and the
Union covering these employees, the last such agreement
being executed in 1989 and set by its terms to expire in
1992.4
In 1990, the Mack branch was managed by Robert Dwyer,
and had as its business manager, Richard Welch; its service
manager, David Worth; and a parts manager whose name I
do not find in the record. Service department foremen were
Roy Christ and David Grimm. Dwyer learned in mid-May
that the branch facility was going to be sold and in June
learned what the asking price would be. In August, he and
a group of investors, including Worth and Welch, made an
offer to Mack to purchase the facility and operate it as an
independent distributorship. Dwyer was subsequently notified
that his group was the successful bidder and the parties en-
tered into negotiations to effect the purchase. This resulted
in a memorandum of understanding dated December 5, as
well as a separate real estate agreement and lease. Mack re-
tains no ownership interest in Respondent and did not pro-
vide any financing for the purchase.
In July, Mack sent a letter to the Union which reads:
I regret to inform you that on September 14, 1990,
Mack Trucks, Inc. will consummate the sale of its
branch facility located on Route 309 in Allentown,
Pennsylvania. This will result in permanent loss of em-
ployment beginning on September 13, 1990 for all the
individuals in the bargaining unit represented by your
local at that location. This notice is provided herewith
is intended to satisfy the Federal WARN Act (Public
Law 100-379).
Mack and the Union held two bargaining sessions over the
effects of the sale of the facility on the bargaining unit. The
first of these sessions took place on November 15. Rep-
resenting Mack at this meeting were Tom Thomasik, Mack’s
labor representative, and the branch facility manager, Dwyer.
For the Union were Union Representatives Michael Walsh
and James Walsh and employees Ron Mohr, Dennis Ware,
and Larry Frantz. According to Michael Walsh, the meeting
opened with a discussion of the date of the closing of the
branch and who would be hired after closing. Thomasik said
the facility would undergo a transfer of ownership and would
reopen as an independent dealership, with Dwyer as owner.
James Walsh asked if the Union would represent employees
under the new ownership and would Dwyer bargain with the
Union. Dwyer did not respond, and Thomasik said that he
was meeting only to discuss effects bargaining. Dwyer did
not remember being identified as the purchaser at this meet-
ing or any question being directed to him with respect to fu-
ture recognition of the Union. I credit Dwyer’s testimony in
this regard as the transaction between his group and Mack
was not completed until December 5, a date subsequent to
this meeting.
A second meeting between the same parties occurred on
December 6. At this meeting, the Union presented a proposal
for the close down, continuation of health and welfare bene-
fits, and severance pay. It asked Thomasik for a copy of the
1203ALLENTOWN MACK SALES
sales agreement for the transfer of the facility. At this second
session, it was known that Dwyer was going to be a prin-
cipal in the purchaser and the Union asked him to recognize
the Union. Thomasik cut the conversation off by saying the
meeting was for effects bargaining only and it was not the
proper forum to raise this issue. According to Dwyer, one of
the Walshs’ responded, ‘‘We can do it the easy way, or we
can do it the hard way.’’ Dwyer did not comment.
As a result of the meeting, the Union and Mack reached
an agreement with respect to the change in ownership which
provides:
1. The current Agreement between the parties will be
rendered null and void as of the close of business on
December 20, 1990. Any and all grievances filed or to
be filed are to be considered settled as of this date.
2. The Company will pay for all unused vacation
calculated in accordance with Article IX of the current
Agreement.
3. The Company will pay for all accrued vacation in
accordance with Article IX of the current Agreement.
4. Hospital, Surgical, Medical, Major Medical, Vi-
sion and Dental Coverage in effect for eligible branch
bargaining employees and their eligible dependents will
be continued through the month of January, 1991.
5. The Company will extend a separation benefit in
the amount of (64) sixty-four hours at straight time
wages.
After December 20, without any hiatus, the business was
operated by Respondent. On January 2, 1991, the Union sent
a letter to Dwyer, care of Respondent, in which it requests
recognition for the unit employees and asks to begin bargain-
ing for a collective-bargaining agreement. The letter was re-
ceived by Respondent on January 7.
C. Was the Respondent a Successor Employer on
January 7?
In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),
the Supreme Court reaffirmed and clarified its holding and
analysis in NLRB v. Burns Security Services, 406 U.S. 272
(1972), which defined the obligation of successor employers
to bargain with unions that represent the employers of their
predecessors. The successor employer, Fall River, operated a
dyeing and finishing plant. Its predecessor, Sterlingwale, had
used two types of dyeing, ‘‘commission’’ and ‘‘converting,’’
but Fall River engaged exclusively in commission dyeing,
which had accounted for 30 to 40 percent of Sterlingwale’s
business. Fall River purchased Sterlingwale’s plant, real
property, and equipment on the open market. Of its initial
workforce, 36 of 55 employees had been employed by
Sterlingwale, and 8 of 12 supervisors had been supervisors
of Sterlingwale. Sterlingwale went out of business in late
summer of 1982, and Fall River began operating in Septem-
ber 1982, but did not reach capacity until April 1983.
The Court stated that in determining whether a new com-
pany is a successor, the approach
which is primarily factual in nature and is based upon
the totality of the circumstances of a given situation, re-
quires that the Board focus on whether the new com-
pany has ‘‘acquired substantial assets of its predecessor
and continued, without interruption or substantial
change, the predecessor’s business operations.’’ Golden
State Bottling Co. v. NLRB, 414 U.S., at 184. Hence,
the focus is on whether there is ‘‘substantial continuity
between the enterprises. Under this approach, the Board
examines a number of factors: whether the business of
both employers is essentially the same; whether the em-
ployees of the new company are doing the same jobs
in the same working conditions under the same super-
visors; and whether the new entity has the same pro-
duction process, produces the same products, and basi-
cally has the same body of customers.’’ [Fall River,
supra at 43.]
The Court further stated that:
In conducting the analysis, the Board keeps in mind
the question whether ‘‘those employees who have been
retained will understandably view their job situations as
essentially unaltered.’’ See Golden State Bottling Co.,
414 U.S., at 184; NLRB v. Jeffries Lithograph Co., 752
F.2d 459, 464 (CA9 1985). This emphasis on the em-
ployees’ perspective furthers the Act’s policy of indus-
trial peace. If the employees find themselves in essen-
tially the same jobs after the employer transition and if
their legitimate expectations in continued representation
by their union are thwarted, their dissatisfaction may
lead to labor unrest. See Golden State Bottling Co., 414
U.S. at 184. [Fall River, supra at 43–44.]
Applying this test, the Court found that Fall River was a
successor to Sterlingwale. The Court stated:
Petitioner acquired most of Sterlingwale’s real property,
its machinery and equipment, and much of its inventory
and materials. It introduced no new product line. Of
particular significance is the fact that, from the perspec-
tive of the employees, their jobs did not change. Al-
though petitioner abandoned converting dyeing in ex-
clusive favor of commission dyeing, this change did not
alter the essential nature of the employees’ jobs, be-
cause both types of dyeing involved the same produc-
tion process. The job classifications of petitioner were
the same as those of Sterlingwale; petitioner’s employ-
ees worked on the same machines under the direction
of supervisors most of whom were former supervisors
of Sterlingwale. The record, in fact, is clear that peti-
tioner acquired Sterlingwale’s assets with the express
purpose of taking advantage of its predecessor’s work
force. [Id. at 44.]
In making its determination, the Court did not find the 7-
month hiatus between the two companies’ operations to pre-
clude successorship because other factors indicated a sub-
stantial continuity. The Court also did not rely on Fall Riv-
er’s purchase of Sterlingwale’s assets on the open market or
various differences between the two enterprises, such as Fall
River’s reduced size, changes in marketing and sales, and
failure to assume Sterlingwale’s liabilities or trade name. The
Court also upheld the Board’s rule which fixes the succes-
sor’s bargaining obligation at the time that it has hired a
‘‘substantial and representative complement’’ of employees.
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In Eastone of Ohio, Inc., 277 NLRB 1652, 1653 (1986),
the Board listed the following criteria for determining
successorship status: (1) business operations; (2) plant; (3)
work force; (4) jobs and working conditions; (5) supervisors;
(6) machinery, equipment, and methods of production; and
(7) product or service.
Applying the foregoing criteria to the facts of record
leaves no doubt that the Respondent is a successor to the in-
volved Mack branch. Pursuant to its agreement with Mack,
Respondent purchased all existing furniture, fixtures, shop
supplies, machines, and tools used at the involved facility. It
purchased a little more than a third of the existing parts in-
ventory. It also purchased a flat bed truck from Mack. Re-
spondent bought three delivery trucks from another source to
develop its parts business, something Mack did not attempt.
Of the some 150 new trucks and 200 used trucks Mack had
for sale at the facility, Respondent purchased about 5 of
each. Respondent purchased all real property involved. Under
the distributorship portion of the agreement, Mack assigned
Respondent an exclusive dealership territory that was the
same as the territory formally served by the factory branch.
Mack primarily engaged in fleet sales of new and used
trucks, with attendant parts, maintenance, and service sales at
the Allentown branch. Respondent continues to sell new and
used trucks at the facility, although it does not engage in
fleet sales of trucks. The fleet sales business was shifted to
other Mack branches. Because of this shift the gross reve-
nues of Respondent are substantially less than that of the
branch, about $9 million annually for Respondent compared
to $90–100 million annually for the branch. Respondent
hopes to sell about 90 trucks annually compared with sales
of about 2400 trucks for the branch. Most significantly for
the purposes of this analysis however, Respondent continues
to provide service, maintenance, and parts for new and used
trucks to many of the customers formerly served by Mack.
The difference in scale of the truck sales business between
Mack and Respondent is not mirrored in the business done
by the involved bargaining unit employees in service and
parts sales. Respondent began business with about two thirds
of the employees in the bargaining unit, all of whom perform
the same work, using the same equipment as they did with
Mack. At the time it ceased operations on December 20,
1990, Mack employed 32 service mechanics, 11 parts em-
ployees, a shop clerk, and a janitor. By January 1, 1991, Re-
spondent employed 23 mechanics, 7 parts employees, a com-
puter operator (formerly the shop clerk), and a janitor. All
of these employees had been bargaining unit employees of
Mack at the date it ceased operations.
Management personnel working at the branch for Mack
became the management for Respondent, with the exception
of the parts manager and a newly created position of director
of modifications center. Most of the service employees work
under the same management team of Service Manager David
Worth, Foreman Christ, and Night Shift Supervisor Grimm.
Respondent also hired two new truck salesmen from the
former Mack work force and hired one new person in this
position as well as a new parts salesman. Four clerical em-
ployees of Mack were hired by Respondent to fill similar po-
sitions in the new operation.
Respondent completed unfinished repair and service work
booked with Mack and not completed by December 20. With
respect to service and maintenance customers, Respondent
continues to serve many of the same fleet and individual cus-
tomers formally served by the Mack branch, losing one fleet
to Mack and adding a new fleet not previously served by
Mack.
With respect to differences between Respondent’s oper-
ation and that of Mack in the service and maintenance area,
Dwyer pointed out that its modifications center offers and
provides value added extras to new truck customers that the
branch did not provide to any significant degree. This new
work accounts for about 30 percent of the Respondent’s cur-
rent volume of business. The Respondent is also trying to de-
velop new business in the repair and maintenance of fire
fighting equipment. It now devotes 11 of its 18 repair bays
to these ventures whereas Mack devoted 2 or 3 bays to simi-
lar work. Although Mack, using the services of its bargaining
unit employees, performed some modification work, it
farmed out or subcontracted most of this type work to an-
other company. However, the involved employees had per-
formed at one time or the other, virtually all the modifica-
tions now provided by Respondent. Mack also advertised that
its branch offered such modification services. When Re-
spondent began business, it assigned one leadman and five
or six employees to this work. These were former Mack bar-
gaining unit employees. As the work has grown, employees
have been hired to perform this work and/or existing employ-
ees have been shifted to this work, which accounted for as
many as 12 employees during a busy period in March 1991.
It has purchased some specialty welding equipment and other
equipment for its modifications center. Respondent purchased
computers and computerized its operation. As noted above,
all other equipment and machinery used was formerly Mack
machinery and equipment and all other work performed by
the parts and service employees is exactly as it had been
with Mack.
In conclusion, from the perspective of Respondent’s serv-
ice and parts employees, very little changed when their em-
ployment shifted from Mack to Respondent. They work in
the same building, using the same equipment, performing the
same work for many of the same customers, working the
same hours and shifts under virtually the same supervision
as was the case in their employment with Mack. The change
in the scale of the operation was not dramatic insofar as they
are concerned, and the change in the direction of the busi-
ness to stress modification work is no more of a change than
was the change in the dyeing process used in Fall River,
supra. The involved employees are certainly a representative
complement of the former bargaining unit as virtually all the
Respondent’s service and parts employees as of January
1991 were former bargaining unit members. Respondent’s
operation in January was relatively full scale and no dramatic
increase in business or change in direction of business was
foreseen or has occurred that would make the complement of
employees hired as of that date less than representative.
Accordingly, I find that Respondent was a successor em-
ployer to the Allentown Mack branch with respect to the bar-
gaining unit employees represented by the Union and that it
was legally obligated to recognize and bargain with the
Union, unless it can show that it had a good-faith reasonable
doubt of the Union’s majority status sufficient to rebut the
presumption of majority status enjoyed by the Union at the
time the request for recognition was made.
1205ALLENTOWN MACK SALES
D. Did Respondent Have a Good-Faith Reasonable
Doubt as to the Union’s Majority Status Among its
Involved Employees?
As noted above, the Union made its request for recogni-
tion by letter to Respondent dated January 2, 1991, and re-
ceived by Respondent on January 7. There was no other
communication between the parties, until Respondent replied
by letter dated January 25, 1991. This letter, received by the
Union on January 31, reads as follows:
At least until further investigation, the Company
must decline to enter into bargaining because:
1. It is not a successor to Mack Trucks, Inc. (Mack)
The Company purchased certain assets belonging to
Mack for cash, and acquired part, but not all, of the
business carried on by Mack. The purchase documents
specifically disclaim successorship. The Company is
completely independent, and none of its stock is owned
by Mack.
With respect to your representation of Mack employ-
ees, we understand that it ceased upon settlement of the
effect of Mack’s ceasing and terminating its business at
the Allentown Branch of Mack. The Union agreed that
the collective-bargaining agreement became null and
void upon completion of a settlement including sever-
ance pay.
2. There is a good faith doubt as to support of the
Union among the employees hired by the Company.
Objective evidence has convinced the Company’s man-
agement that a majority of its hourly employees do not
desire to be represented by the Union.
In order to avoid possible protracted and unproduc-
tive dispute over this issue, the Company has arranged
for an independent poll by secret ballot of its hourly
employees to be conducted under guidelines prescribed
by the National labor Relations Board. The poll will be
taken on February 8, 1991.
We shall await the results of the poll before commu-
nicating further. I am sure that you will agree that this
method of proceeding respects the wishes of the em-
ployees, a central policy of the National Labor Rela-
tions Act.
The poll was taken and the results sent to the Union by
Father Joseph Czaus, a Catholic priest who conducted the
poll. His letter reads:
The results of the poll of employees of Allentown
Mack Sales and Service, Inc, conducted on February 8,
1991, are as follows:
13 employees voted I do want to be represented for
purposes of collective bargaining by Automobile &
Body Builders Local No. 724, International Association
of Machinists and Aerospace Workers.
19 employees voted I do not want to be represented
for purposes of collective bargaining by Automobile &
Body Builders Local No. 724, International Association
of Machinists and Aerospace Workers.
As an independent third party, I witnessed the poll,
collected the ballots, and have verified the results.
On February 12, 1991, the Union responded to the poll by
a letter to Respondent which stated:
In response to the letter received from Father Joseph
Czaus concerning the poll of Allentown Mack employ-
ees, Local 724 does not recognize this poll or the re-
sults of said poll.
Local 724 will continue whatever legal action is nec-
essary to see that Allentown Mack complies with the
labor laws.
Other than the communications above noted, there has
been no communication between the Union and Respondent.
The poll, which will be discussed in more detail below,
does give strong support to Respondent’s position that the
Union did not enjoy majority status and that it was not obli-
gated to recognize and bargain with the Union. However, be-
fore it can rely on the results of the poll, it must show that
it had a good-faith reasonable doubt, based upon objective
considerations, of the continuing majority status of the Union
before conducting the poll. This reasonable doubt must be
based on sufficient objective considerations to justify with-
drawal of recognition from and incumbent union and must
have been formed in an atmosphere free of any unfair labor
practices. Texas Petrochemicals Corp., 296 NLRB 1057
(1989).
Respondent cannot rely upon the Union’s agreement which
terminated the collective-bargaining agreement with Mack as
of December 20, 1990. This agreement did not affect the
Union’s rebuttable presumption of majority status and did
not amount to a waiver of the Union’s rights in this regard.
Bay Area Mack, 293 NLRB 125, 128 at fns. 11 & 12 (1989).
Moreover, Respondent was on notice that the Union expected
to be recognized by the statements of James Walsh made at
the effects bargaining session of December 6. Likewise, the
lack of a successorship clause in the Mack-Union collective-
bargaining agreement cannot affect the Union’s rights which
arise under the Act and not as a result of contract. The lack
of such a clause does not constitute a knowing waiver of
these rights.
With respect to labor relations, the document which ef-
fected the purchase of the Allentown Mack branch by Re-
spondent provides in its paragraph 14:
No provision of this Memorandum or any other
agreement by and between Mack and Buyer shall re-
quire Buyer to recognize, assume, or be bound by any
existing labor agreement of Mack. Buyer shall have no
obligation, and Mack will indemnify Buyer, with re-
spect to any and all claims and liabilities arising under
said labor agreements or from Mack’s employment re-
lationship with the Mack employees of the Branch. The
provisions of this paragraph fourteen shall survive the
closing.
This agreement, which does not include the Union as a
party, cannot be found binding on the Union, and does not
bear on the issue of whether Respondent has an objective
reasonable doubt as to the Union’s majority status.
The primary evidence relied upon by Respondent to meet
its burden under the reasonable doubt standard consists of
statements made by bargaining unit employees to manage-
ment which Respondent interprets as showing employee dis-
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 On cross-examination, Dwyer was uncertain whether this con-
versation took place in 1989 or in 1986, the year the previous collec-
tive-bargaining agreement was negotiated. I believe the best evidence
would place the date of this conversation in 1986, as Ridgick was
assistant parts manager in 1989 and not a member of the bargaining
unit.
satisfaction with the Union. These statements were made ei-
ther directly to Dwyer over a period of time or were made
to his service manager, Worth and his parts manager, Ham-
ershock, while they were interviewing Mack employees for
positions with Respondent. The antiunion comments made to
the supervisors were reported to Dwyer. Both Worth and
Hamershock testified that the comments about the Union
were made to them without prompting on their part. I do not
find that they asked the union sympathies of the job appli-
cants, but I do believe the testimony of both employees Mike
Ridgick and Ronald Mohr that they were told during their
interviews that the new company would be nonunion. Thus,
I feel that the statements made to Worth and Hamershock are
somewhat tainted as it is likely that a job applicant will say
whatever he believes the prospective employer wants to hear.
See Phoenix Pipe & Tube Co., 302 NLRB 122 fn. 2 (1991).
Similarly, during the period just prior to December 20, if an
employee asked whether the new business would be union or
not, Dwyer would answer that it would not. He could not re-
member being specifically asked this by any employee,
though he was frequently asked by business associates and
customers.
The statements and comments upon which Dwyer based
his good-faith doubt of majority status are as follows:
In 1989, before the renewal of the last collective-bargain-
ing agreement, bargaining unit member Mike Ridgick asked
him what Mack could offer that the Union could not, noting
there had been a number of decertifications at Mack facilities
and wanting to know what he could do in this regard.5
Dwyer responded he could not give him information about
this and he should contact his counterparts at other Mack fa-
cilities.
Ridgick was interviewed for a position with the Respond-
ent. Although he was a supervisor with Mack at the time he
was interviewed, the position he was applying for would be
a bargaining unit position. He was interviewed by Respond-
ent’s new parts manager, Hamershock. According to Ham-
ershock, he mentioned nothing about the Union, but Ridgick
offered that as long as the new company would treat them
right, there was no need for a Union. Ridgick admitted mak-
ing this comment but said it was in response to being told
by Hamershock that the new company would be nonunion.
I find Ridgick’s testimony as to the reason for making the
comment more plausible and credit it over the testimony of
Hamershock.
I consider the 1986 conversation between Dwyer and
Ridgick to be too remote to properly judge Ridgick’s union
sympathies in early 1991. The statement he made to Ham-
ershock also tends to detract from his earlier expression of
dissatisfaction. The later statement is at best equivocal and
amounts to nothing more than a noncommital acceptance of
the conditions of the job being offered. As Ridgick was a
member of management at the time he made the statement,
I would find it hard to believe that he would express any
prounion sentiment during the job interview. The comment
he did make is certainly not the expression of pleasure that
one would expect if Ridgick wanted the Union decertified as
indicated in his earlier conversation with Dwyer. I cannot
find that this 1990 comment made during the job interview
would support an objective reasonable doubt of majority sta-
tus.
In either 1986 or 1989, Dwyer had a conversation with a
long time bargaining unit employee, Bill Wendling, who re-
tired at some date before Respondent purchased the Allen-
town Mack branch. Wendling told him he wished he could
be in management because it had a better retirement package.
This statement could only be interpreted as expressing
Wendling’s desire for a benefit which management did not
afford bargaining unit members. By no stretch of the imagi-
nation could it be said to be clear expression of a desire to
end his representation by the Union. I can not find this state-
ment even remotely supports Respondent’s asserted good-
faith doubt.
Again, in either 1986 or 1989, Dwyer had a conversation
with bargaining unit member Pete McArthur wherein
McArthur asked him for information about decertification.
Dwyer referred him to his counterparts at other branches of
Mack. Not only do I find this conversation remote to the
timeframe in question, McArthur was not hired by Respond-
ent and his sentiments made no difference in determining
whether the Union was supported by a majority of Respond-
ent’s employees.
In July 1990, when the WARN letter was prepared, Dwyer
held an employee meeting and read the letter to the employ-
ees. After this meeting, a parts department bargaining unit
employee and union steward, Dennis Wehr, told him that if
Dwyer was elected principal of a new company, that ‘‘we
didn’t have to have a union, because we didn’t need one.’’
Wehr was hired by Respondent in December, but quit on
January 23, 1991. I believe that Wehr’s statement would
properly cause an employer to doubt this employee’s support
for the Union. However, as Wehr quit his employment with
Respondent before it replied to the Union’s request for rec-
ognition, I do not believe it could properly count this person
in its determination of whether a majority of its employees
supported the Union.
In December, a mechanic who works in the fire depart-
ment, Rusty Hoffman, told Dwyer that if the new company
was going to be union that he was not interested in working
because he did not want to work in a union shop. In his
interview with Worth for a job with Respondent, Hoffman
said he would vote out the Union and would try to find an-
other job if he had to work with the Union. I believe that
at least Hoffman’s comment to Dwyer could be used to sup-
port Respondent’s good-faith doubt.
During his job interview with Worth, employee Joe
McKilvie asked him if there was going to be a Union in the
new company. Worth replied that at that time he did not
know, to which McKilvie responded that he was against the
Union and ‘‘we would work better without one.’’ I believe
this comment is strong enough indication of antiunion senti-
ment to be used by Respondent, even though given in the
context of an interview.
In his job interview, employee Milt Solt offered that he
did not feel comfortable with the Union and thought it was
a waste of $35 a month. This statement is not a clear expres-
sion of a desire not to be represented and is the type state-
1207ALLENTOWN MACK SALES
6 These employees are Rusty Hoffman, Joe McKilvie, Tim Frank,
Scott Murphy, Kermit Block, and David Baker.
7 I likewise doubt that it would satisfy the somewhat lesser stand-
ard untilized as a prerequisite for a lawful employee poll by three
Federal Circuit courts that have rejected the Board’s standard.
Mingtree Restaurant v. NLRB, 736 F.2d 1295 (9th Cir. 1984); Thom-
as Industries v. NLRB, 687 F.2d 863 (6th Cir. 1982); NLRB v. A. W.
Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981). These courts have
held that an employer may poll its employees to determine their
union sentiment if the employer has substantial, objective evidence
of loss of union support, even if that evidence is insufficient in itself
to justify withdrawal of recognition. As this standard is not the
standard used by the Board, and as I am bound to follow Board law,
the evidence will not be further discussed in relation to the courts’
standard.
8 Michael Walsh testified that at a meeting of 29 or 30 of the
Mack bargaining unit members on December 16, 1990, some 25
signed authorization cards selecting the Union as their bargaining
representative. Of course, on that date, the Respondent was not in
business. More importantly, the Union never informed Respondent
that it was in possession of these cards and never offered to show
them to Respondent or an independent third party to verify majority
status. In a similar vein, Walsh testified that most of the unit em-
ployees of Respondent continued to pay union dues, albeit drastically
reduced dues, after Respondent began business. Respondent was not
in a position to know whether dues were being paid or not, and was
not informed by the Union that dues were in fact being paid. As
these facts, which may have had a bearing on the matter of Re-
spondent’s good-faith doubt were they known by it, were never com-
municated to Respondent, I do not believe they have any relevance
on this issue.
ment which I believe is weakened because of the context in
which it was given.
Interviewee Dennis Marsh said he was not being rep-
resented for the $35 he was paying. Although this statement
does express dissatisfaction with the Union, it certainly does
not amount to a statement that Marsh does not want to be
represented by the Union. It seems more an expression of a
desire for better representation than one for no representation
at all.
Randy Zoltack, who was hired in February, before the
poll, told Hamershock the Union was a waste of $35. As
Zoltack was hired after the January 25 reply to the Union,
his feelings could not have been part of Respondent’s good-
faith doubt as of that date.
During his job interview, employee Tim Frank mentioned
to Worth that ‘‘he didn’t feel that he wanted to work with
the Union now,’’ or ‘‘that he would rather not have the
Union there.’’ Although Worth’s memory of this employee’s
statements was less than strong, I will credit the testimony
and thus agree with Respondent’s position that Frank’s state-
ment contributed to its asserted good-faith doubt.
During their job interviews with Worth, employees Scot
Murphy and Kermit Bloch mentioned they did not want the
Union. Dwyer testified that on a number of unspecified occa-
sions after Murphy was hired, Murphy expressed his dis-
satisfaction with the Union and the dues he was paying.
Bloch, who worked on the night shift, told Worth that the
entire night shift did not want the Union. There were five
or six employees on the night shift at the time. I cannot ac-
cept Bloch’s representations with respect to the other night
shift employees for a variety of reasons. Bloch did not testify
and thus could not explain how he formed his opinion about
the views of his fellow employees. There is no showing that
they made independent representations about their union
sympathies to Respondent and they did not testify in this
proceeding. See Texas Petrochemicals Corp., supra, 296
NLRB 1057 (1989). I believe, however, the Respondent can
rely on the statements of these two employees as indicating
their desire not to be represented by the Union.
Hamershock testified that when interviewing employee
David Baker, Baker asked, ‘‘What are you going to do about
the Union?’’ Hamershock replied, ‘‘That is totally up to the
people, I don’t know.’’ Baker then said, ‘‘That is good be-
cause as far as I am concerned, I have no use for it.’’ I be-
lieve Respondent should be allowed to use this statement as
evidence of its asserted good-faith doubt.
To this point, I find that six employees gave Respondent
statements which could be used as objective considerations
supporting a good-faith reasonable doubt as to continued ma-
jority status by the Union.6 Even if one counts the statement
of employee Milt Solt in this category, which is question-
able, only 7 of 32, or roughly 20 percent of the involved em-
ployees had expressed sufficient dissatisfaction to support
Respondent’s position. I cannot find that this level of ex-
pressed dissatisfaction constitutes an objective reasonable
doubt of union majority support among the unit employees
sufficient for a lawful withdrawal of recognition and thus,
the conducting of a lawful employee poll. Texas Petrochemi-
cals, supra; Hajoca Corp., 291 NLRB 104 (1988).7
Thus I find crucial to the Respondent’s position the last
conversation upon which it relies. In December, prior to the
interview process, Dwyer and employee and union steward
for the service employees, Ron Mohr, engaged in a conversa-
tion in which the Union was discussed. Dwyer remembers it
taking place in the shop and beginning by Dwyer asking how
things were going. He said that Mohr told him that with a
new company, if a vote was taken, the Union would lose and
that it was his feeling that the employees did not want a
union. Dwyer replied that it was up to the employees and he
would go either way.8
Mohr testified that in December, prior to the change in
ownership, he was called into Dwyer’s office and they had
a brief conversation about the Union. Dwyer asked him how
things were going in the shop, and Mohr replied they were
all right. Dwyer then asked him how he felt about the Union.
Mohr said he could work with or without the Union; he was
there to do his job. Dwyer said that he too could work either
way, with or without the Union. It would be up to the men.
He asked how the other men felt about the Union and Mohr
said he could not speak for the other employees.
Mohr was interviewed for a position with Respondent by
Worth who told him what Respondent had to offer by way
of wages and benefits, and that it would be a nonunion shop.
Respondent strongly relies on the statement made by Mohr
to Dwyer. It urges and I accept that that the version of the
statement given by Dwyer should be credited. As Dwyer tes-
tified after Mohr and his version of the conversation was ma-
terially different, I believe General Counsel had an obligation
to call Mohr to comment on Dwyer’s testimony in this re-
gard. This is especially so as Mohr mentioned in his testi-
mony having other conversations with Dwyer at about the
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same time as the one he described. Additionally, Dwyer ap-
peared entirely credible on this point.
Should Respondent be allowed to rely on Mohr’s opinion?
As opposed to Bloch who offered the opinion that the night
shift employees did not support the Union, Mohr, as union
steward, was arguably in a position to know the sentiments
of the service employees in the bargaining unit in this regard.
However, there is no evidence with respect to how he gained
this knowledge, or whether he was speaking about a large
majority of the service employees being dissatisfied with the
Union or a small majority. Moreover, he was referring to the
existing service employee members of the Mack bargaining
unit composed of 32 employees, whereas the Respondent
hired only 23 of these men. Certainly the composition of the
complement of employees hired would bear on whether this
group did or did not support the Union. He also was not in
a position to speak for the 11 parts employees of Mack or
the 7 parts employees hired by Respondent. Mohr himself
did not indicate personal dissatisfaction with the Union.
Given the almost off-the-cuff nature of the statement and
the Board’s historical treatment of unverified assertions by
an employee about other employees’ sentiments, I do not
find that Mohr’s statements provides sufficient basis, even
when considered with the other employee statements relied
upon, to meet the Board’s objective reasonable doubt stand-
ard for withdrawal of recognition or for polling employees.
Texas Petrochemicals, supra; Westbrook Bowl, 293 NLRB
1000 (1989); KEZI-TV, 286 NLRB 1396 (1987). Accord-
ingly, I find that the Respondent unlawfully polled its em-
ployees about their continued support for the Union, because
it did not have the prerequisite reasonable doubt, based on
objective considerations, about the Union’s continued major-
ity status. Consistent with this finding, I find that the Re-
spondent cannot rely on the results of the poll as an objective
consideration, because the poll itself was an unfair labor
practice, establishing an unlawful context for withdrawal of
recognition. Texas Petrochemicals, supra. Thus, I find that
Respondent’s refusal to extend recognition and bargain with
the Union within a reasonable time on and after receipt of
the Union’s request on January 7, 1991, violated Section
8(a)(5) and (1) of the Act. I also find that by conducting the
poll, Respondent violated Section 8(a)(5) and (1) of the Act.
E. Did the Poll Taken by Respondent Independently
Constitute a Violation of the Act?
The complaint alleges that Respondent, on February 8,
1991, acting through Robert Dwyer, unlawfully interrogated
its employees regarding their union membership and sym-
pathies. The allegation, though perhaps vaguely drawn, must
refer to the employee poll taken on February 8, because
Dwyer did not personally interrogate anyone about anything
on that date according to the evidence of record. Therefore,
I will discuss the evidence relating to the poll to determine
if its taking by Respondent violated the Act independently of
the violation found in the preceding section of this decision.
After receipt of the January 2 letter requesting recognition
and following his response of January 25, in accordance with
his reply, Dwyer posted a notice in the Allentown facility
that a poll regarding union preference would be taken. This
notice reads as follows:
The International Association of Machinists and
Aerospace Workers Local #724 has demanded to be the
exclusive bargaining agent for all the shop maintenance
employees, shop clerks, and partsmen.
The Company, Allentown Mack Sales and Service,
Inc. has arranged for an independent poll to be con-
ducted by secret ballot under the guidelines prescribed
by the National Labor Relations Board.
The purpose of the poll is to determine the wishes
of our employees, with respect to representation for col-
lective bargaining.
On February 8, the date of the poll, Dwyer held two meet-
ings with employees. In each he read a statement which said:
A poll of our employees will be conducted on the
supervision of Father Czaus this afternoon. The purpose
of this poll is to ascertain whether the International As-
sociation of Machinists and Aerospace Workers, Local
Union No. 724, actually represents the majority of the
company’s employees covered by the National Labor
Relations Act.
We want to assure you that no reprisals will be taken
against any employee regardless of how he votes, or the
outcome of the poll.
The poll will be taken by secret ballot, and only Fa-
ther Czaus will see the ballots. He will simply report
the results to us, and those results will be posted and
communicated to the Union.
That is all I have to say about the poll. If you have
any questions about the polling procedure, please ask
Father Czaus after I have left the room.
Father Czaus conducted the poll in which all employees
who would be in the bargaining unit voted. He then took the
ballots, left the premises, and later advised the Company and
the Union of the results.
Where an employer has demonstrated a reasonable doubt
about a union’s continued majority status, the Board has gen-
erally accepted the adequacy of the procedural safeguards for
employer-conducted polls of employees set forth in Struksnes
Construction Co., 165 NLRB 1062 (1967), i.e., (1) the pur-
pose of the poll is to determine whether the union enjoys
majority support; (2) the purpose is communicated to the em-
ployees; (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.
If one assumes for the purposes of this discussion that Re-
spondent did have sufficient objective grounds for a good-
faith doubt of the continuing majority status of the Union,
then I believe that the poll was conducted within the guide-
lines of Struksnes. Had it had such a good-faith doubt, then
it would not have committed any unfair labor practices to the
date of the poll and there is virtually no evidence that the
poll was conducted in a coercive atmosphere. General Coun-
sel would have me find that regardless of Respondent’s
good-faith doubt, the poll was conducted in an atmosphere
tainted by Respondent’s refusal to recognize the Union on
January 7 and by its refusal to bargain with the Union prior
to the poll. I disagree. I believe Respondent’s January 25,
1991 response to the Union’s January 2 request was reason-
ably timely and does not by itself amount to a refusal to rec-
1209ALLENTOWN MACK SALES
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
10 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
National 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.’’
ognize and bargain with the Union. By its very terms, it
merely postpones that decision until the results of the em-
ployee poll are known.
As noted in the fact findings above, the employees were
informed of the purpose of the poll, the purpose was permis-
sible, assurances against reprisals were given, and the poll
was by secret ballot conducted by an independent third party.
In Texas Petrochemicals, supra, 296 NLRB 1057 (1989),
the Board added a new requirement for such polls. In that
case, the Board held that the union must be given advance
notice of the time and place of the poll. The Union received
notice that the poll would be taken on February 8, 1991,
when, on January 31, it received Respondent’s letter of Janu-
ary 25. Although the specific time and place of the poll was
not stated, and perhaps on January 25, not known to Re-
spondent, the Union was on notice of the intention to take
the poll and its date. I believe that the Union had at least
the minimal responsibility to inquire as to the time and place,
and if it had objections to them, to voice such objections. In
the absence of such objections, I cannot find that the purpose
of requiring advance notice has been violated. Similarly, on
brief, the Union raises a number of objections to the poll,
questioning the integrity of Father Czaus and the appropriate-
ness of the location of the poll. Absent any inquiry by it
about how the poll was to be taken and voicing timely objec-
tion, I do not find its late formed objections to be well taken.
This is especially true because there is nothing in the evi-
dence given by the employees who participated in the poll
to indicate that there was anything questionable or coercive
about the poll.
Therefore I find that the poll meets the Board’s guidelines
and the manner in which it was taken does not violate the
Act. However, as I have heretofore found that the taking of
the poll was unlawful and unavailing to the Respondent, this
point is relatively moot.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All shop employees, shop clerks and partsmen em-
ployed by Respondent at its Allentown, Pennsylvania facility,
excluding office clerical employees, drivers, salesmen, and
watchmen and supervisors as defined in the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By refusing on or after January 7, 1991, to recognize
and bargain with the Union as the exclusive collective-bar-
gaining representative of the employees in the appropriate
unit, and by taking an employee poll to verify the continuing
majority status of the Union, all without sufficient objective
considerations on which the Respondent could base a reason-
able doubt about the Union’s continued majority status, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
5. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not engage in other unfair labor
practices as alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action necessary to effectuate the
policies of the Act.
It is recommended that Respondent be ordered to extend
recognition to, and upon request, bargain with the Union as
the exclusive collective-bargaining representative for its em-
ployees in the above-described unit, over the terms and con-
ditions of employment of these employees and, if agreement
is reached, embody such agreement in a written contract.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Allentown Mack Sales & Service, Inc.,
Allentown, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local Lodge
#724, International Association of Machinists and Aerospace
Workers, AFL–CIO as the exclusive collective-bargaining
representative of the employees in the appropriate unit, and
taking an employee poll to verify the continuing majority
status of the Union, without sufficient objective consider-
ations on which it could base a reasonable doubt about the
Union’s continued majority status.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Extend recognition to and, on request, bargain with the
Union as the exclusive representative of the employees in the
following appropriate unit over terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
All shop employees, shop clerk and partsmen employed
by Respondent at its Allentown, PA facility, excluding
office clerical employees, drivers, salesmen, and watch-
men and supervisors as defined in the Act.
(b) Post at its Allentown, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’10 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with Local
Lodge #724, International Association of Machinists and
Aerospace Workers, AFL–CIO as the exclusive collective-
bargaining representative of our employees in the unit de-
scribed below, and WE WILL NOT take an employee poll to
verify the continuing majority status of the Union, without
sufficient objective considerations on which we could base a
reasonable doubt about the Union’s continued majority sta-
tus.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL extend recognition to and, on request, bargain in
good faith with the Union as the exclusive representative of
our employees in the following appropriate unit over terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All shop employees, shop clerks and partsmen em-
ployed by us at our Allentown, Pennsylvania facility,
excluding office clerical employees, drivers, salesmen,
and watchmen and supervisors as defined in the Act.
ALLENTOWN MACK SALES & SERVICE, INC.