Morgan Services

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 290 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
Morgan Services, Inc. and AFL–CIO Laundry and
Dry Cleaning International Union, Local 168–
39. Cases 3–CA–22305, 3–CA–22503–1, and 3–
CA–22503–2
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On December 15, 2000, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.1
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 decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
We agree with the judge’s findings that the Respon-
dent violated Section 8(a)(5) and (1) of the Act in Janu-
ary 2000 when it dealt directly with its rug department
employees concerning a proposed change in the depart-
ment’s work schedule, and again that same month when
it unilaterally changed the work schedule without afford-
ing the Union adequate notice and an opportunity to bar-
gain.4 There are no exceptions to the judge’s finding that
the Respondent did not unlawfully assist in circulating a
petition signed by a majority of unit employees in April
2000, expressing their wish no longer to be represented
by the Union, nor to the judge’s further finding that be-
cause of the petition, the Respondent had a reasonable
good-faith doubt of the Union’s continuing majority
status, and therefore did not act unlawfully when it re-
fused to bargain for a new collective-bargaining agree-
ment with the Union on and after May 2, 2000.

1 After briefing, the Respondent also filed a “Motion to Take Offi-
cial Notice of the Board’s Records and Uncontested Matter,” in which
it asked us to take administrative notice of the contents of a Region 3
investigative file concerning a withdrawn unfair labor practice charge,
and of a letter dated July 23, 2001, assertedly sent by the Respondent to
the Union, which announces that the Respondent is withdrawing recog-
nition from the Union retroactive to May 2, 2000. The General Coun-
sel has filed an opposition to this motion. Because our decision makes
it unnecessary for us to consider the documents that the Respondent
thus seeks to add to the record, we find it unnecessary to pass on the
Respondent’s motion.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
3 We have modified the recommended Order to include the Board’s
narrow cease-and-desist provision, which the judge inadvertently omit-
ted. We have also made corresponding changes to the notice.
4 In adopting these violations of Sec. 8(a)(5) and (1), we note that the
judge based his finding of an unlawful unilateral change on the Re-
spondent’s statutory bargaining duty, as well as on what the judge
variously termed the Respondent’s “contractual/past practice,” “con-
tractual and/or past practice,” and “contractual” obligation. In affirm-
ing the judge’s finding of a unilateral change violation, we do not rely
on the judge’s language insofar as it purports to impose contractual
duties on the Respondent. That language conflicts with the judge’s
unexcepted-to finding that the most recent collective-bargaining
agreement between the Respondent and the Union had expired by the
time of the events at issue in this case.
The judge ordered the Respondent to cease and desist
from dealing directly with its unit employees concerning
work schedules, and from unilaterally changing work
schedules “without affording the Union the opportunity
to bargain over the change.” The judge further ordered
the Respondent to take the affirmative actions, at the
Union’s request, of rescinding its unilateral change in the
rug department’s work schedule and of bargaining over
that change. In footnote 15 of his decision, however, the
judge acknowledged that because the “Respondent is
evidently free to continue to refuse to bargain,” the
“practical application [of the proposed remedy] in the
circumstances of this case is questionable.”
Contending that it has withdrawn recognition from the
Union, the Respondent excepts, inter alia, to being com-
pelled to bargain with the Union. Opposing this excep-
tion in its answering brief, the General Counsel states
that although the Respondent withdrew from negotiations
on May 2, 2000, it has never withdrawn recognition. In
its reply brief, the Respondent asserts that it has now
expressly withdrawn recognition. In its opposition to the
Respondent’s posthearing motion, above footnote 1, the
General Counsel contends that the issue of whether
events have occurred since the hearing that would make
compliance with an order to bargain unwarranted should
be resolved through a compliance proceeding. We agree
with the General Counsel, and accordingly find that the
parties’ dispute concerning an issue of fact material to
the remedy in this case is best left for resolution at com-
pliance. Meanwhile, we will modify the recommended
Order in a way that leaves this disputed issue open by
providing that the Respondent must cease and desist
from bypassing and refusing to bargain with any labor
organization that is or may become its employees’ repre-
sentative, and must take certain affirmative actions at the
Union’s request if the Union still represents the Respon-
dent’s bargaining unit employees.

336 NLRB No. 21
MORGAN SERVICES 291
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Morgan Services, Inc., Buffalo, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Bypassing any labor organization that is or may be-
come the exclusive representative of its employees and
dealing directly with represented employees concerning
their days and/or hours of work.
(b) Changing the days and/or hours of work of its em-
ployees without first affording any labor organization
that is or may become the employees’ exclusive repre-
sentative a meaningful opportunity to bargain over the
proposed change.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of this Order, on request of the Un-
ion if the Union is still the exclusive bargaining represen-
tative of the unit employees, rescind its unilateral change
in the hours of work and/or schedule of work of unit em-
ployees in its rug department.
(b) Within 14 days of this Order, on request of the Un-
ion if the Union is still the exclusive bargaining represen-
tative of the unit employees, bargain over the change in
the hours of work and/or schedule of work of unit em-
ployees in its rug department.
(c) Within 14 days after service by the Region, post at
its facility in Buffalo, New York, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
to all current employees and former employees employed
by the Respondent at any time since January 13, 2000.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the 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.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT bypass any labor organization that is
or may become the exclusive bargaining representative
of our unit employees and deal directly with our unit
employees concerning their days and/or hours of work.
WE WILL NOT change the days and/or hours of work
of our unit employees without first affording any labor
organization that is or may become the exclusive bar-
gaining representative of our unit employees a meaning-
ful opportunity to bargain over the proposed change.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, if the AFL–CIO Laundry and Dry Cleaning
International Union, Local 168–39 is still the exclusive
bargaining representative of our unit employees, rescind
at the Union’s request the unilateral change in the hours
of work and/or schedule of work of our unit employees
in the rug department.
WE WILL, if the AFL–CIO Laundry and Dry Cleaning
International Union, Local 168–39 is still the exclusive
bargaining representative of our unit employees, bargain
at the Union’s request over the change in the hours of
work and/or schedule of work of our unit employees in
the rug department.

MORGAN SERVICES, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 292
Ronald Scott, Esq., for the General Counsel.
Thomas Canafax Jr., Esq., of Chicago, Illinois, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case was tried in Buffalo, New York, on August 3 and 4, 2000.
AFL–CIO Laundry and Dry Cleaning International Union Lo-
cal 168–39 (Union) filed the original charge in Case 3–CA–
22305 on January 13, 2000,1 and an amended charge on March
21. The filed the original charge in Case 3–CA–22503–1 on
May 3 and filed an amended charge on July 17. The Union filed
the charge in Case 3–CA–22503–2 on May 3. On July 19, the
Regional Director for Region 3 issued an order consolidating
cases, amended consolidated complaint and notice of hearing
(complaint). The complaint alleges that Morgan Services, Inc.
(Respondent or Morgan) engaged in certain conduct in viola-
tion of the National Labor Relations Act (Act). Respondent
filed timely answer denying it violated the Act. It did admit
certain complaint allegations including the jurisdictional allega-
tions.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, engages in the operation of a
commercial laundry service at its facility in Buffalo, New York.
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues for Determination
Respondent engages in the processing and rental of linens
and uniforms for business, industry, restaurants and health care
facilities in the Buffalo, Jamestown, Olean, and Rochester,
New York areas. The Union has represented a unit of Respon-
dent’s employees since about 1970.2 As of May 1, there were
72 employees in the unit. The last collective-bargaining agree-
ment between the Union and Respondent was effective by its
terms from December 19, 1994, to October 1, 1997. After the
expiration of the last collective-bargaining agreement in 1997,
the parties engaged in negotiations for a successor agreement
for 3 years. The last negotiating session was held in April. Fol-

1 All dates are in 2000 unless otherwise indicated.
2 The following employees of Respondent, the unit, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Sec. 9(b) of the Act:
All full-time and part-time production and maintenance employees,
including lead workers, but excluding engineers, office and clerical
employees, salespersons, route drivers (service representatives),
guards, professional employees and supervisors as defined in the Na-
tional Labor Relations Act.
lowing the expiration of the 1997 agreement, Respondent con-
tinued to adhere to the provisions of the expired agreement
except with regard to grievance and arbitration, and dues
checkoff. According to Respondent’s area general manager,
Samuel T. Grieco Jr., the two primary issues that had separated
the parties during negotiations was Respondent’s desire to have
the employees convert from the Union’s pension plan to Mor-
gan’s pension plan, and the Union’s desire to have a union shop
rather than continue the maintenance membership clause in the
expired contract.
The parties were engaged in negotiations for a successor
agreement in the spring of 2000. On May 1, Morgan employee
and unit member Susan Dunn filed a decertification petition
with the Board. Shortly thereafter, Respondent, citing a good-
faith reasonable doubt of the Union’s majority status, broke off
negotiations until that matter was resolved. Region 3 dismissed
the decertification petition on July 7 because of the allegations
contained in the charges filed in this proceeding.
The complaint alleges that Respondent violated the Act by:

1. On or about April 19, by Production Supervisor
Debbie Plaza, at Respondent’s facility, soliciting employ-
ees to circulate a petition to decertify the Union, and solic-
iting other employees to sign the decertification petition.
2. On or about January 14, by Production Supervisors
Hector Chucardo and Clint Ellis, at Respondent’s facility,
bypassing the Union and dealing directly with its employ-
ees in the unit, in regard to their hours of work.
3. (a) On or about January 17, changing the hours of
work of its employees in the unit.
(b) The subject set forth immediately above relates to
wages, hours, and other terms and conditions of employ-
ment of the unit and is a mandatory subject for the pur-
poses of collective bargaining.
(c) Respondent engaged in this conduct without prior
notice to the Union and without affording the Union an
opportunity to bargain with Respondent with respect to
this conduct and the effects of this conduct.
4. On or about May 1, canceling a negotiating meeting
with the Union and since that date has refused to meet
with the Union for the purposes of negotiating a collec-
tive-bargaining agreement.

By its conduct alleged above, Respondent is alleged to have
violated Section 8(a)(1) and (5) of the Act.
B. The Complaint Allegations Regarding Unilateral Changes
and Direct Dealing
1. The facts regarding direct dealing
and unilateral changes
Respondent used two employees, William Toomey and Iman
James, to clean rugs. They did so in the nighttime hours Sunday
through Thursday. On Sundays, they were the only employees
in the plant, with no supervision and no maintenance support.
In December 1999 or January, Respondent’s supervisor, Clint
Ellis, suggested to Area General Manager Grieco that it would
be more practical to have Toomey and Iman work Monday
through Friday. On those days, there would be supervision and
MORGAN SERVICES 293
maintenance support. Grieco told Ellis to talk with the two
affected employees to see if the change was acceptable to them.
On January 14, Grieco faxed a letter to Edward Skibinski,
union president. The letter states:

This is to advise you that on Monday, January 24,
2000, we will be changing the day of the week that the rug
department will work. They will change from Sunday
through Thursday, 10:00 pm—6:30 am to Monday
through Friday, 10:00 pm—6:30 am. We have discussed
this with Bill Toomey and Iman James and they are agree-
able to this change. If you have any questions or need any
further information, please contact me at any time.3

Skibinski testified that he had heard nothing from the Re-
spondent about this matter before receiving Respondent’s Janu-
ary 14 fax. He had heard rumors from employees beginning in
December 1999 about a change in the rug department. Acting
on these rumors Skibinski tried unsuccessfully to reach Grieco
in early January. He testified that he then spoke with Produc-
tion Supervisor Hector Chucardo, who told Skibinski that
Grieco had had a meeting with the two rug department employ-
ees and they had said the change was okay. Chucardo denied
that this conversation ever occurred.4
By letter dated, January 18, Skibinski replied to Grieco, stat-
ing:

I am in receipt of your letter dated January 14, 2000 in
regards to changing the starting time for the rug depart-
ment. The Union would like to negotiate this issue with
you. Please contact me to set up a negotiation date for
same.

Grieco testified that on January 19, responding to Skibinski’s
letter, he called and left a message on Skibinski’s voice mail
asking Skibinski to call him. The change in Toomey’s and
Iman’s schedule had gone into effect on January 17. According
to Grieco, this was the result of a miscommunication between
him and his supervisors. He had instructed the supervisors that
the Union had to have 5 days’ notice of the proposed change in
schedule.5 According to Grieco, the change occurred early be-

3 At the opening of the hearing, the parties stipulated as follows: Be-
ginning with the payroll week ending January 22, the schedules of
bargaining unit employees William Toomey and Iman James were
changed from a Sunday through Thursday schedule to a Monday
through Friday schedule. The start times of these two employees were
changed from 10 to 9 p.m.
4 Whether the conversation occurred or not is immaterial to a deci-
sion in this matter. I do, however, credit Skibinski’s testimony over
Chucado’s denial. Skibinski filed a charge in this case on January 13,
prior to receiving notice from Respondent that a change was taking
place and that the two affected employees had been approached about
the change. It is logical to assume that the information about these
matters came to Skibinski in this conversation with Chucago.
5 The expired contract which Respondent was adhering to had a pro-
vision for changing starting and quitting times for employees. Art. III,
sec. 8.4 states that if the employer desires to change starting and quit-
ting times, it must give 5 days’ notice to the Union. If the Union ob-
jects, it may request to negotiate over the proposed change within 72
hours of the notice of the proposed change. The parties then must nego-
tiate prior to the expiration of the 5-day notice period. Grieco testified
cause January 16 was the date of the Super Bowl and the af-
fected employees wanted to make the change early to be able to
see the game. Grieco testified he learned of the early start for
the change after getting a charge Skibinski filed with the Board.
Skibinski filed the charge on January 13, a day before he re-
ceived formal notice that the change was going to occur.
Skibinski testified that he spoke to Grieco about the matter
of the schedule change at the next bargaining session held
January 27. He had filed a charge with the Board over the
change and asked Grieco why he was making the change with-
out first negotiating the issue. According to Skibinski, Grieco
told him the same thing as Chucardo, that he had asked the
affected employees and they had no problem with the change.
Grieco denied the entire substance of Skibinski’s testimony in
this regard. He denied that the Union ever objected to the
change in schedule to him, except for the filing of the charge.
He denied that anyone connected with the Union ever spoke to
him about the matter. I do not credit Grieco in this regard. The
Union filed a charge, requested bargaining and no bargaining
took place. I find it highly unlikely that Skibinski would let the
matter drop under these circumstance. Thus I credit Skibinski’s
testimony in this regard.
2. Conclusions regarding direct dealing
Grieco admitted that Supervisor Ellis asked Toomey and
Iman for their input into the proposed schedule change. He
noted that the change took effect earlier than planned at the
request of the affected employees. General Counsel asserts that
by bypassing the Union and speaking first with the employees,
Respondent has violated Section 8(a)(1) of the Act. In support
of this position, he cites the case of Harris–Teeter Supermar-
kets, 310 NLRB 216, 217 (1993). That case is almost directly in
point. In Harris–Teeter Supermarkets, the employer and union
were in long running negotiations for a first collective-
bargaining agreement. Though no total agreement had been
reached, the parties had signed a letter of understanding allow-
ing the employer to change a person’s hours or shift for up to
30 days without negotiating with the union. In the year in-
volved in that case, Christmas fell on a Sunday, a regular work-
day for the affected employees. As a result the employer de-
cided these employees would work on Saturday, their normal
day off. After the change was made, the employer decided it
was more efficient for the employees to follow the changed
schedule on an on-going basis. It met with the affected employ-
ees and asked their opinion on the issue. They objected, but the
employer implemented the change anyway. The change in
schedule was to be a matter for negotiations and was temporary
until negotiations could take place.
With regard to the solicitation of input by employees, the
Board held:

By soliciting the sentiment of employees on a subject
to be discussed at the bargaining table, Respondent was
usurping the Union’s function and attempting to arm itself

that under certain circumstances, schedules had historically been
changed without notice. These circumstances involved weeks with
holidays and weeks when the workload is above normal. The Union has
never objected to these temporary changes in the work schedule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294
for upcoming negotiations . . . . As set forth in Obie Pa-
cific, Inc., 196 NLRB 458 (1972), the issue is whether the
Respondent “may attempt to erode a union’s bargaining
position by engaging in a direct effort to determine em-
ployee sentiment” rather than discuss such matters solely
with the union. The Respondent “may not seek to deter-
mine for himself the degree of support, or lack thereof,”
which exists for a position that it seeks to advance in nego-
tiations with the employee bargaining representative. [Ci-
tations omitted.] By seeking to ascertain employee senti-
ment on the changed work schedule in advance of present-
ing the proposed change to the Union, the Respondent en-
gaged in direct dealing in violation of Section 8(a)(5) of
the Act.

I can find no material difference between the situation in
Harris–Teeter Supermarkets and the one in the instant case. As
will be discussed below, Respondent had a statutory and con-
tractual obligation to negotiate over the schedule change.
Rather than notify the Union of the proposal and let it deter-
mine the sentiment of the affected employees, Respondent, like
the employer in Harris–Teeter Supermarkets, went first to the
employees. For the reasons articulated in Harris–Teeter Su-
permarkets, I find and conclude Respondent has engaged in
direct dealing in violation of Section 8(a)(5) of the Act.
3. Conclusions with respect to the unilateral changes
Respondent had a statutory and a contractual/past practice
obligation to bargain over the schedule change before imple-
menting it. An employer who effects unilateral changes in
terms and conditions that are mandatory subjects of bargaining
commits a per se violation of Section 8(a)(5) of the Act. NLRB
v. Katz, 369 U.S. 736, 738 (1962). The Board has consistently
found that schedules and hours are mandatory bargaining sub-
jects. Our Lady of Lourdes Health Center, 306 NLRB 337, 339
(1992), citing Water’s Edge, 293 NLRB 465 (1989). It is be-
yond serious debate that the starting times and the workdays of
the rug department employees are mandatory subjects of bar-
gaining. While Respondent may assert that the change was de
minimus, and does not rise to the level of a violation, the Board
has found unilateral changes in employees’ starting times to be
material and substantial changes which violate Section 8(a)(5).
Blue Circle Cement Co., 319 NLRB 954 (1995).
Moreover, Respondent had a contractual and/or past practice
obligation to give the Union 5 days’ notice of the proposed
change and, on request within 72 hours, bargain over the pro-
posed change. The proposal was implemented, however within
3 days of the notice to the Union; in effect, making it a fait
accompli. Respondent argues that the Union has waived its
right to negotiate over the matter by failing to return Grieco’s
voice mail message or otherwise following up on its January 18
written request to so bargain. I disagree. There is no dispute
that Respondent gave notice of the proposal in writing on Janu-
ary 14 and the Union, in writing, within 72 hours, requested
bargaining over the proposal. As the duty to bargain on request
is both statutory and, in this case, contractual, Respondent had
an obligation to actually ensure that its response was received
by the Union. It did not do so. There is no way to be sure that
Grieco’s voice mail message was ever received by the Union.
Respondent could have replied by fax, the method by which its
notice was sent and proof would have existed that it did re-
spond. Absent such proof, I find that Respondent has failed in
its statutory duty to bargain over the schedule change and its
unilateral implementation violates Section 8(a)(5) of the Act.
The Union clearly did not waive its right to bargain. It made the
request in writing and filed a charge. Respondent, not the Un-
ion, had the duty to follow up and bargain. It did not do so.
C. The Issue of Reasonable Doubt of Majority Status and Re-
fusal to Negotiate.
1. Facts and credibility resolutions
The last bargaining session was held in April. There was a
session scheduled for May 1. Prior to that meeting, Skibinski
got a voice mail message from Respondent’s negotiating repre-
sentative. The message said that because Grieco had gotten a
petition from employees stating that they no longer wished to
be represented by the Union, Grieco did not feel it was right to
continue negotiations. The bargaining representative then gave
notice that negotiations were terminated.
Skibinski attempted two or three times to reach this represen-
tative, but was unsuccessful. Skibinski shortly thereafter re-
ceived a letter dated May 2 from Grieco. It states:

As you are aware, a petition has been filed with the
NLRB by some of our employees seeking an election to
determine the Union’s status as bargaining representative.
In addition, we have received strong evidence that a ma-
jority of the employees in the bargaining unit do not wish
to be represented by the Union. Because of this evidence,
and because the Company is led to have a good faith rea-
sonable doubt of the Union’s majority, it is best to defer
any further negotiations until the Union has established its
majority in a supervised NLRB election.

Grieco testified that on May 1, unit employee Susan Dunn
came to him and showed him a petition signed by employees.6
It stated they did not want the Union. She told him she was
taking the petition to the NLRB. She gave him a copy and
asked him to stop negotiations. She further stated that based on
her knowledge gained from previous decertification efforts she
had engaged in, she believed the Respondent did not have to
continue negotiations because of the petition. Dunn had worked
for Morgan for 20 years and had filed four previous petitions
that resulted in elections won by the Union. As of May 1,
Grieco was familiar with all of the employees whose names
appeared on Dunn’s petition. They were all employees, except
Jose Rivera, who was terminated on May 1 for failing to come
to work. 7
Grieco went to his payroll clerk and determined that on May
1, there were 72 bargaining unit employees. There were 42
names on Dunn’s petition. Grieco then called his labor counsel

6 Grieco testified that Morgan did not restrict solicitation of any kind
in the workplace so long as it is not disruptive. It allows employees to
solicit money for raffles and to sell Avon and other products.
7 Susan Dunn, William Toomey, and Rosechianti Applewhite be-
tween them testified they obtained almost every name on the list and/or
witnessed the employees sign the list. All of the signatures were ob-
tained between April 20 and May 1.
MORGAN SERVICES 295
and asked if he could cease negotiations and was told he could.
He instructed counsel to inform the Union that negotiations
were terminated. He testified that he based the “good faith rea-
sonable doubt of the Union’s majority” as stated in his May 2
letter on the Dunn petition and on statements made to him and
his supervisors by employees expressing their displeasure with
the Union and the proposed contract.
As noted above, on May 1, a decertification petition was
filed with Region 3 by Susan Dunn. The petition alleges that
there are about70 employees in the unit. The petition was sup-
ported by a petition signed by 42 of Respondent’s employees
stating that they do not wish to be represented by the Union. On
July 7, the Region dismissed the decertification petition.
Following the dismissal, Skibinski sent a letter dated July 25,
to Grieco, stating:

Please be advised that the Union would like to sched-
ule our next negotiating session with Morgan Services.
Your cooperation is appreciated in responding to us within
the next twenty four to forty-eight hours. If you are taking
the position that you do not wish to come to the bargaining
table, additional charges will be filed.

Grieco sent on July 28, a reply to Skibinski’s July 25 request.
Grieco wrote:

After giving a lot of thought to your letter requesting
the resumption of bargaining, I believe it would be injuri-
ous to the Company—and probably to the Union—to do
so until the question as to the Union’s majority status has
been cleared up. The petition disavowing the Union was
signed by a large majority and its timing just as the parties
were about to finalize a contract suggests that to ignore the
petition would create loss of a significant part of its work
force. I urge the Union to reconsider its opposition to hold-
ing an election at this time.8

The Region’s dismissal of the petition is based on the com-
plaint allegation that Production Supervisor Debbie Plaza solic-
ited employees to sign the petition disavowing the Union. This
petition was started by Susan Dunn who has worked for Mor-
gan for 20 years and does not want to be represented by the
Union. As noted earlier, she has filed several decertification
petitions over the years of her employment. She prepared the
latest petition and solicited employees to sign it. This petition
will be referred to as Dunn’s petition.
The allegation of unlawful solicitation came from former
Morgan employee Rosechianti (Rose) Applewhite. Applewhite
worked for Respondent in a unit position for a year or two,
leaving in May to take a job working with retarded people.
Applewhite’s uncle is a longtime employee of Morgan and was
a union steward at the time of the events discussed below. Ap-
plewhite was sure that Plaza was aware of the relationship be-
tween Applewhite and her uncle, and also knew he was a union
steward. Plaza verified in her testimony that she was so aware.

8 Grieco testified that based on comments made to his supervisors
and passed on to him, Morgan would lose a significant number of em-
ployees who would quit if negotiations resumed.
Applewhite’s immediate supervisor was Plaza. Applewhite
testified that at some point toward the end of April, while work-
ing, Plaza approached her and asked her to pass around Dunn’s
petition. According to Applewhite, Plaza asked, “Would one of
you ladies like to take a break to take this around?”9 Apple-
white testified that there was another female employee working
with her at the time. She believed the other employee was Hope
Ersing. According to Applewhite, Ersing said, “I’ll finish do-
ing this [her work]. Rose, you go ahead and pass it around.”
Ersing testified and denied Applewhite’s assertions. Ersing
testified that she went to Dunn’s workstation and signed the
petition without any input from Applewhite or Plaza. Plaza
denied all of Applewhite's assertions in this regard. She noted
that she had been told prior to the circulation of the latest peti-
tion to get rid of the Union that she could not discuss the peti-
tion, could not promise anything other than to tell employees
they would not be hurt by decertification.
Morgan employee and unit member Sarah Washington saw
Applewhite soliciting an employee for her signature on Dunn’s
petition. She heard Applewhite ask the employee to sign the
petition to get rid of the Union. According to Washington, the
employee asked if Applewhite was crazy and why she was
circulating the petition. Applewhite said, “Well, maybe Debbie
asked me.”10 Applewhite did not ask Washington to sign, not-
ing to Washington, “Well, Sarah, I know you are not going to
sign.” Washington’s husband is also a Morgan employee and a
union steward.
Applewhite testified that at the time Plaza allegedly asked
her to circulate Dunn’s petition, there were 17 signatures on the
petition. Applewhite testified that she did as Plaza requested
and obtained 11 more signatures on the petition. According to
Applewhite, she did not tell any of the employees she solicited
to sign the petition that Plaza had requested her to do so. She
testified that she approached employees on the day in question
and asked if they wanted to vote the Union out, and if they did,
gave them the petition to sign. Applewhite testified that when
she had finished soliciting signatures, she took the petition to
Dunn.
Dunn testified that Applewhite came to her and asked for the
petition. Present when this request was made was employee
Donna Chapman. According to Dunn, Applewhite wanted to
sign the petition because she did not want to pay union dues.
Dunn testified that she asked Applewhite to take the petition to
Applewhite’s department and see how many signatures she
could get. According to Dunn, Applewhite said, “No problem.”
She also testified that Applewhite and Hope Ersing signed the
petition at Dunn’s workstation. According to Dunn, Applewhite
took the petition and came back a few minutes later with sev-
eral new signatures on it. Dunn commented to Applewhite,
“Rose, I can’t believe you took the petition around.” Apple-
white asked, “Why?” Dunn replied, “Because your uncle is
9 On redirect testimony, counsel for General Counsel pointed out
that in her deposition given the Board, Applewhite said that Plaza had
also said the petition “was to take out the Union.”
10 As I understand the transcript, Washington identified this em-
ployee as Corenda Prior, the thirtieth person to sign the Dunn petition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296
Tommy Applewhite.” Applewhite responded, “I ain’t afraid of
my uncle. I’ll go downstairs and ask him to sign the petition.”11
About a week before Applewhite left Morgan’s employ, her
uncle asked her why she circulated the petition, noting that it
would hurt him.12 She told him it was because Plaza told her to
do it.
About 2 days before the alleged request to solicit signatures by
Plaza, Applewhite and Plaza had had a conversation following a
company meeting where the employees were told that they would
get a quarter raise resulting from negotiations with the Union.
According to Applewhite, in this conversation, Plaza said that
“[W]ithout the Union, we can give you at least two dollars more
than a quarter.” According to Applewhite another female em-
ployee was present for this conversation. She did not know the
employees name, but believed she was a relative of either Sue
Dunn or Debbie Plaza and worked at the same table as Dunn.13
This employee was evidently Donna Chapman.
Dunn testified that about 2 days before Applewhite signed the
petition, they had a conversation about the Union. It was after the
employee meeting. According to Dunn she told Applewhite that
she would be coming around with a petition for a vote to get rid
of the Union. She told Applewhite that would be the way to
avoid paying union dues. She also told Applewhite that the em-
ployees would probably get a $1-an-hour-wage increase because
that was what happened when the service representatives voted to
decertify. Dunn based her belief in this regard on what the service
representatives had told her.
Employee Donna Chapman testified that she had a conversa-
tion with Applewhite after the employee meeting. Supervisor
Plaza was also present. Chapman testified that Applewhite ex-
pressed her fear that people would lose their jobs without a union.
Chapman expressed her belief that that fear was ridiculous. Plaza
commented that “you will not be hurt.” Chapman denied that
Plaza said anything about a raise and what would happen with
regard to benefits or wages if the Union were voted out. Plaza
testified that Applewhite raised concerns about job security if the
Union was decertified and Plaza remarked, “All I can tell you, is
that you won’t be hurt.” She denied saying anything about a raise

11 Employee Chapman corroborated Dunn’ testimony in these re-
gards.
12 The uncle, Thomas Applewhite, was one of two employees who
would have been hurt by the proposed new contract that would have
required converting to another pension plan. He was near retirement
age.
13 At the same employee meeting, employees were told that the Re-
spondent and Union were close to reaching a new contract. If the pro-
posed contract were signed they would have to pay union dues. Accord-
ing to Applewhite, this did not appeal to her friends at work. According
to Grieco, about 20 unit employees had not paid union dues under the
maintenance membership clause. Some of these employees expressed
their displeasure about paying dues to Grieco, even threatening to quit
Morgan if the contract was signed with the union shop provision in it.
Susan Dunn testified that a number of employees, including. Apple-
white had complained to her that they did not want to pay union dues.
Employee William Toomey also testified that a number of employees,
including himself, did not want to pay union dues. Both Dunn and
Toomey testified that they and other named employees expressed these
sentiments to Grieco and other supervisors.
or how much money employees would get if the Union were
decertified.
Clearly if Applewhite is believed, Respondent violated the Act
by involving itself in the decertification effort. However, I do not
believe Applewhite’s testimony with regard to Plaza’s role in the
decertification effort nor do I credit her testimony that Plaza told
her the Respondent would give a $2-raise if the Union were de-
certified. Instead, I credit the consistent testimony of Plaza,
Dunn, Chapman, and Ersing. I find that for whatever reason,
Applewhite, without any encouragement from Respondent, de-
cided to sign Dunn’s petition. I further credit Dunn’s testimony
that it was she who asked Applewhite to circulate the petition and
it was this request that caused Applewhite to do so. A plausible
reason for Applewhite’s implication of Plaza in her circulating of
Dunn’s petition is that having taken the action, she wanted to
divert the wrath of her union steward uncle and other relatives
who work at Morgan. In any event, I do not believe and do not
credit her testimony to any extent that it is different from the
testimony of Respondent’s witnesses.
2. Conclusions on the issue of good–faith doubt
of majority status
I find that Respondent, by Grieco, had a bona fide reasonable
good-faith doubt of the Union’s majority status, based on objec-
tive considerations, on and after May 1. I have found Dunn’s
petition to be untainted. There was no unlawful inducement made
to employees to sign the petition. The signatures have been veri-
fied by payroll records and by the oral testimony of Dunn, Ap-
plewhite, Chapman, Ersing, and Toomey. The petition contains
the names of almost 60 percent of the unit employees employed
on May 1. The testimony of Dunn and Toomey certainly support
Grieco’s testimony that he also received input from a number of
employees who did not want to pay union dues and who might
resign if they were required to do so. I credit Grieco’s testimony
in this regard.
Having found that Respondent has a good-faith reasonable
doubt of the Union’s majority status among unit employees, I
find that it was not a violation of the Act to terminate negotia-
tions with the Union. As recently as May 22, the Board has reaf-
firmed its reasonable doubt rule. In Bridgestone/Firestone, Inc.,
331 NLRB 205, 209 (2000), the Board held:

Based on its good-faith doubt, we find, as in Burger
Pits, Inc., supra [273 NLRB 1001 (1984] that the Respon-
dent was privileged to inform the Union on April 29 that it
would not bargain for a successor agreement. As the Board
stated in Burger Pits, id. at 1001:

It is also established that within a reasonable time prior to
the expiration date of a collective-bargaining agreement,
an employer who establishes a good-faith doubt of a un-
ion’s majority status may announce that it does not intend
to negotiate a new agreement.

See also Auciello Iron Works, supra, 317 NLRB at
368.14
14 As stated in Auciello Iron Works, 317 NLRB 364, 368 (1995),
“the existence of a good-faith doubt is a question of fact. The employer
has the burden of proving that it had a reasonable, good-faith belief that
MORGAN SERVICES 297
CONCLUSIONS OF LAW
1. Morgan Services, Inc., is an employer within the meaning
of Section 2(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. At all material times, the Union has been the exclusive
bargaining representative of Respondents employees in the
following described unit:

All full-time and part-time production and mainte-
nance employees, including lead workers, but excluding
engineers, office and clerical employees, salespersons,
route drivers (service representatives), guards, professional
employees and supervisors as defined in the National La-
bor Relations Act.

4. The Respondent violated Section 8(a)(1) and (5) of the
Act by:
a. On or about January 14, 2000, bypassing the Union
and dealing directly with its employees in the unit, in re-
gard to their hours of work.
b. On or about January 17, 2000, unilaterally changing
the hours of work and/or days of work of its employees in

the union no longer represented a majority of the bargaining unit em-
ployees.” Further, that good-faith doubt must be based on objective
considerations. Laidlaw Waste Systems, 307 NLRB 1211 (1992). We
find that the Respondent has met this burden, and no party contends
otherwise.
the unit, without affording the Union the opportunity to
bargain over the change.
5. The Respondent did not commit the other unfair labor
practices alleged in the complaint.
6. The unfair labor practices found to have been committed
are unfair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent, having unlawfully changed the hours of work
and/or the work schedules of its unit employees without giving
the Union the opportunity to bargain over the changes, should
be ordered to, on request of the Union, rescind the unilaterally
implemented changes and restore the status quo ante. It should
also be ordered, on request of the Union to bargain over the
changes.15
[Recommended Order omitted from publication.]
15 Although this is the Board’s traditional remedy for a violation of
the type I have found committed, its practical application in the circum-
stances of this case is questionable. Presumably, the decertification
petition will be refiled and until an election determines the Union’s
continuing status as bargaining representative, Respondent is evidently
free to continue to refuse to bargain. Perhaps the matter can be resolved
at the compliance stage, or by the Board on appeal.