Henry Bierce Co

National Labor Relations Board - Board Decisions

May 20, 1992

307 N.L.R.B. 622 (N.L.R.B. 1992)

622
307 NLRB No. 104
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has moved to strike attachments to the General
Counsel’s answering brief. The General Counsel has opposed the
motion, arguing tht they are responsive to contentions raised for the
first time in the Respondent’s brief to the Board. In reaching our de-
cision, we have not relied on the attachments.
3 In agreeing that the Respondent violated Sec. 8(a)(5) and (1) by
withdrawing recognition from the Union on the basis of an unlawful
poll of unit employees regarding their desire for continued represen-
tation by the Union, we find it unnecessary to rely on the judge’s
discussion of Texas Petrochemicals Corp., 296 NLRB 1057 (1989),
enf. denied 923 F.2d 398 (5th Cir. 1991). Instead, we note that the
Respondent has argued that the instant case arises in the Sixth Cir-
cuit and that the poll was lawful under Thomas Industries v. NLRB,
687 F.2d 863, 868 (6th Cir. 1982), which held that an employer may
poll employees regarding union sentiments based on ‘‘substantial,
objective evidence of a loss of union support, even if that evidence
is insufficient in itself to justify withdrawal.’’ We reject the Re-
spondent’s argument and agree with the judge that even under the
standards outlined by the court in Thomas the poll here was unlaw-
ful. In addition, we note that even if the poll were found to be non-
coercive and procedurally fair under Thomas, the Respondent has not
demonstrated the existence of sufficient objective evidence of loss
of employee support for the Union to justify the poll, as the rea-
soning in Thomas requires. Thus, the poll does not constitute reliable
objective evidence of a loss of majority status on which to base a
withdrawal of recognition. We note that, in finding a showing of a
loss of union support sufficient to justify the poll, the Thomas court
relied on a rapid decline in checkoff authorizations, negative remarks
about the union by one-third of unit employees, and six officials’
resignations from the union. None of these factors, and no other
similar factors indicating a change in employee sentiments, supports
the Respondent’s contentions that it had substantial, objective evi-
dence of a loss of support here. Indeed, the Respondent mustered
only one negative employee comment as evidence that employee at-
titudes toward the Union had changed. We note further that the court
found the Thomas poll procedurally fair and the captive-audience
speech noncoercive in part because the union president there also ad-
dressed employees before they voted. By contrast, the Respondent
appropriated the speech given in Thomas but failed to notify the
Union in advance that it planned to poll the unit employees in time
for a union representative to be present. Thus, we find that the poll-
ing in this case is not supported by sufficient evidence of a loss of
majority support or does not carry the indicia of fairness and reli-
ability on which the court in Thomas relied.
1 When the formal papers were introduced herein, Respondent re-
quested that a charge which was filed May 1989, which charge was
subsequently withdrawn, be included in the formal papers. Counsel
for the General Counsel refused indicating that the withdrawn charge
should not be part of the formal documents since it is not part of
the proceeding. I agreed. Respondent renews its request on brief, in-
dicating that the charge and the acceptance of the withdrawal pro-
vide background evidence to Respondent’s Sec. 10(b) of the Na-
tional Labor Relations Act (the Act) defenses in this action. In my
opinion, Respondent has not shown any reason for including the
aforementioned charge and the acceptance of the aforementioned
withdrawal in the formal papers received herein. Respondent did not
attempt to introduce the documents in question as Respondent’s ex-
hibits.
2 Since about 1974 the Union has been the designated exclusive
collective-bargaining representative of the involved unit. Recognition
has been embodied in successive collective-bargaining agreements,
the most recent of which was effective by its terms for the period
May 1, 1984, to April 30, 1987. G.C. Exh. 3. The unit consists of
the following:
All mixer drivers (agitator and nonagitator), building supply
drivers (single axle and multiple axle), warehousemen, yardmen,
batchman (manual control) and owner operators, but excluding
all office clerical employees, professional employees, guards and
supervisors as defined in the Act.
The Henry Bierce Company and Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local
Union No. 348 a/w International Brotherhood
of Teamsters, AFL–CIO.1 Cases 8–CA–21471
and 8–CA–21995
May 20, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 6, 1991, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief2 and
the General Counsel 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, and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Henry Bierce Com-
pany, Akron, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Paul C. Lund, Esq., for the General Counsel.
John E. Holcomb, Esq. and Keith Pryatel, Esq. (Millisor &
Nobil), of Akron, Ohio, for the Respondent.
Robert B. Laybourne, Esq., of Akron, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. A charge was
filed in Case 8–CA–21471 on December 19, 1988, by Chauf-
feurs, Teamsters, Warehousemen and Helpers, Local Union
348 a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union), and the
Union filed the charge in Case 8–CA–21995 on July 31,
1989.1 A consolidated complaint was issued on September
29, 1989, alleging that The Henry Bierce Co. (Respondent)
violated Section 8(a)(1) and (5) of the Act, collectively, by
(a) informing an employee in March 1989 that it was ridding
itself of the Union2 and by dealing directly with an employee
over benefits, including his retirement, and other terms and
conditions of employment, and (b) since November 1988 Re-
spondent has failed and refused to execute a written contract
embodying an agreement reached with the Union on April
24, 1987, which contract the Union requested the Respondent
623HENRY BIERCE CO.
3 At the hearing herein the General Counsel moved to amend the
complaint to include the following allegation: On or about Novem-
ber 1, 1988, Respondent at its facility unlawfully polled its employ-
ees, and thereafter on the basis of this unlawful polling unlawfully
withdrew recognition of the Union in violation of Sec. 8(a)(1) and
(5) of the Act. Respondent objected to the amendment arguing that
it was barred by Sec. 10(b) of the Act.
4 Respondent’s answer also contains a number of affirmative de-
fenses, including (a) the complaint and charge are barred by the ap-
plicable statute of limitations, (b) at all times material, the Charging
Party did not, in fact, represent a majority of the employees in the
involved unit, (c) the Charging Party is estopped from asserting the
existence or formation of a collective-bargaining agreement, and (d)
the Charging Party has waived its right to assert the existence or for-
mation of a collective-bargaining agreement.
5 DeStefano’s pocket calendar indicates that he had a meeting with
David Bierce on April 15, 1987 (G.C. Exh. 7).
6 G.C. Exh. 8.
7 Charlie Morgan, an employee of Respondent’s, who is also a
member of the Union, testified that DeStefano did not ask him about
what he would like to see in the contract. Morgan, however, testified
that he discussed benefits with steward Harry Bauch who later went
to the union hall to discuss ‘‘it.’’
8 G.C. Exh. 7.
9 DeStefano’s notes of this and the April 15, 1987 meeting were
received as G.C. Exh. 9. On cross-examination, DeStefano testified
that changes from the prior contract involved (a) the elimination of
severance pay, (b) casual labor, and (c) there would not be an incre-
mental increase in the wage rate but rather a lump sum bonus in
each of the 3 years of the contract. Also on cross-examination,
DeStefano testified that he told Bierce that if there was any other
savings in any other building contract, that he would give it to
Bierce also. Subsequently, DeStefano testified that he and Bierce
discussed changing the winter hour guarantee. DeStefano explained
that under the old contract the employer was obligated to pay 40
hours per week under the winter hours. But under the ‘‘new’’ con-
tract the employer was only obligated to give a guarantee of 25
hours a week, which DeStefano indicated resulted in a cost savings
‘‘with all other companies and we gave it to Bierce, too.’’
Morgan testified that he was never asked to ratify the contract.
to execute in September 1987.3 In its answer to the amended
consolidated complaint, The Henry Bierce Co., Respondent,
denies violating the Act as alleged.4
A hearing was held on January 16 and 17, 1990, in Akron,
Ohio. Briefs were filed by the General Counsel and the Re-
spondent.
On the entire record in this proceeding, including my ob-
servation of the witnesses and their demeanor, and after con-
sidering the aforementioned briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation, with an office and place
of business in Akron, Ohio, has been engaged in the sale and
distribution of building supplies and general hardware to re-
tail customers. The complaint alleges, Respondent admits,
and I find that at all times material, it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that the Union is now, and has been at all
times material, a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Robert DeStefano, a business agent and vice president of
the Union, negotiated the 1984–1987 collective-bargaining
agreement with Respondent. Negotiations on that contract oc-
curred in April 1984 and that David Bierce, the general man-
ager of Respondent, signed that contract on June 4, 1985.
David Bierce testified that the 1984 collective-bargaining
agreement was not bargained on a multiemployer basis be-
cause Bierce believed that the employers involved in the
Materialmen’s Association, all of which companies had more
than 20 employees, were too willing to make concessions to
the Union to avoid labor problems.
On February 23, 1987, the Union gave its official notice
to terminate the labor agreement as of April 30, 1987 (G.C.
Exh. 6).
Regarding negotiations for the new contract, DeStefano
testified that they began on April 15, 1987;5 that during the
first meeting David Bierce, after receiving a proposal from
the Union,6 indicated that because of the competitiveness of
the industry they were in Respondent wanted some kind of
relief in the agreement; that Bierce also indicated that he did
not want to be part of any multiemployer group and that he
was negotiating the contract on behalf of The Henry Bierce
Co. only; that the meeting lasted for 45 minutes; and that he
began negotiations not knowing how many employees were
in the involved unit.7
David Bierce testified that he had a notation in his ‘‘Pock-
et Day-Timer’’ (R. Exh. 2), of a meeting with DeStefano at
1:30 p.m. on April 15, 1987; and that his recollection is that
this meeting did not take place and it was scheduled for a
later date.
DeStefano testified that the next and last negotiating ses-
sion was held on April 24, 1987;8 that David Bierce indi-
cated that Respondent did not want to give a big increase be-
cause of the competitive nature of their business and Re-
spondent was looking for some cost savings; that giving a
bonus instead of an hourly increase was discussed; that
Bierce was concerned about the increase in the pension; that
omitting severance in lieu of the Respondent paying what-
ever increase in the pension there would be was discussed
and was agreeable to the Company; that they discussed cas-
ual help which could result in a cost savings for the Com-
pany and Bierce liked this very much; that they discussed the
$400 bonus; that all other matters were to remain the same;9
that he was sure that jury duty pay was discussed although
his notes do not refer to it; that the Teamsters’ health and
welfare plan and the Central States pension plan increases
every year; and that
Dave [Bierce] said that if we could live with that he
could live with that and he said that we had a contract,
but Bob give me the privilege of going back and talk-
ing to my father. You know how he is, he don’t like
the union. The other representative years ago had them
on strike and its been a sour taste in his mouth for
years and he says, ‘‘Bob, I know my Dad will be glad
to hear what you said. I just want to run it by him,’’
he says, and ‘‘just give me that courtesy.’’ And I said,
‘‘Fine.’’
David Bierce testified that his first meeting with
DeStefano regarding the 1987 contract occurred Friday, April
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Bausch, Reese McAninach, and Morgan.
11 Mark Noel, John Walker, and Gerald Bond.
24, 1987, at the union hall. With respect to this meeting,
David Bierce testified that DeStefano gave him a four-point
proposal including an annual incremental wage increase of
$1 per employee per hour for each of the 3 years of the con-
tract, maintaining the health and welfare plan, maintaining
the Central States Pension Plan for the employees covered,
and continue to deduct severance contributions with the
Company continuing to contribute $10; that he opposed the
incremental wage increase; that he did not think that there
was any point of contention regarding the health and welfare,
the Central States plan and the deduction and severance con-
tribution; that he told DeStefano that he would take the
Union’s wage proposal back to his father and discuss it with
him; that DeStefano also mentioned that the employees of a
competitor of Bierce, which employees were apparently rep-
resented by the Union, were looking for an extra week of va-
cation; that he thought the vacations were mentioned at this
first meeting; that he was not sure that DeStefano proposed
that Bierce give 1 additional week of vacation to Bierce’s
employees; that if DeStefano did not propose an additional
vacation week the only outstanding issue was the wages; and
that it was his understanding that anything that was not bar-
gained on or agreed to would remain the same.
When subsequently called by Respondent, David Bierce
testified with respect to the April 24, 1987 meeting that
DeStefano said that (a) he knew that Bierce did not have ev-
erybody signed up in the Union and although he had not
seen Bierce’s payroll records, he knew Bierce was not pay-
ing scale, and (b) as long as he, DeStefano, did not have
somebody from Bierce at his office breathing down his neck,
Bierce could pretty well do what it could get away with; that
during negotiations in April 1987 Bierce had three employ-
ees in the Union10 and three who were not;11 that he did not
reach agreement with DeStefano as to a contract at the April
24 meeting; and that he never told DeStefano ‘‘we’ve got a
contract but I’ll need to take it back to my dad.’’
On rebuttal, DeStefano testified that he never told David
Bierce that he, DeStefano, knew that Bierce had people
working for them who were not in the Union.
Within ‘‘a matter of days’’ of the April 24, 1987 meeting
David Bierce, according to the testimony of DeStefano, tele-
phoned him and ‘‘said that we had an agreement and every-
thing was fine.’’ DeStefano testified that he told Dave Bierce
that he was negotiating around 14 contracts and it would be
a while before he got the contracts typed for Bierce’s signa-
ture.
According to David Bierce’s testimony, the second and
last meeting with DeStefano took place on April 27, 1987,
at the union hall. Regarding this alleged meeting, David
Bierce testified that after this meeting there was disagree-
ment on quite a few points of the contract, namely wages
and vacations; that he told DeStefano that Bierce could not
agree to any additional vacation time; that DeStefano men-
tioned additional vacation time; that he took the position that
vacation time should remain the same; that after discussing
the Union’s wage proposal with his father after the first
meeting, he proposed to DeStefano at the second meeting
that the Company pay a lump sum of $500 per employee
rather than the incremental wage increase; that he proposed
that the lump sum would be payable on May 1 but it would
be contingent on the employee’s full-time employment
through December 31 of the prior year; that in the alter-
native, he proposed to DeStefano that if incremental wage in-
creases were unavoidable, the Company could live with in-
creases of 30 cents the first year, 25 cents the second year
and 25 cents the third year; that while the allowance for jury
duty was rather incidental, he did not recall there was ever
agreement as to jury pay; that while both parties stated their
positions regarding vacations, he did not believe that there
was agreement on this aspect of the contract; that while his
DAY-TIMER calendar indicated that he met with DeStefano
on April 24, 1987, it does not indicate that he met with
DeStefano on April 27, 1987; that he was relying on his
recollection that he met with DeStefano on April 27, 1987;
that the entries on the bottom of the April 27, 1987 page in
the ‘‘TO BE DONE’’ section of his DAY-TIMER refer to
counterproposals to DeStefano’s original proposal; and that
when he told DeStefano that a lump sum would be pref-
erable, DeStefano said that he would take it under advise-
ment and get back to him.
When subsequently called by Respondent, David Bierce
testified regarding the alleged April 27, 1987 meeting the he
did not reach agreement with DeStefano at this meeting; that,
as noted above, he proposed two alternatives, namely, a $500
lump sum payment or incremental wage increases up to 30
cents per man the first year, 25 cents the second year, and
25 cents the third year of the contract; and that DeStefano
said the he would take it under advisement.
On rebuttal, DeStefano testified that he did not propose an
additional 1-week vacation; that David Bierce never pro-
posed incremental wage increases of 30, 25, and 25 cents;
and that if Bierce had made such a proposal, he, DeStefano,
would have accepted it because it would have been greater
that the aforementioned $400 lump sum.
Neither in May 1987 or in May 1988, according to the tes-
timony of David Bierce, did the employees of Bierce receive
a lump sum bonus. No grievances were filed regarding em-
ployees not being provided with this bonus.
Sometime in July 1988, according to the testimony of
David Bierce, DeStefano telephoned indicating that he want-
ed to get together on the contract. Bierce testified that
DeStefano said that he had the document prepared and he
wanted Bierce to look at it, review it, and work toward a sig-
nature on it; and that at no time after April 24, 1987, up until
the meeting he had with DeStefano in August 1988 did he
ever telephone DeStefano and tell him that ‘‘everything’s
fine, my dad just has to look it over or we’ve got a con-
tract.’’
In August 1988, according to the testimony of David
Bierce, DeStefano telephoned him and said that he would
drop off a copy of the current contract. Twenty minutes later
DeStefano gave the contract to Bierce. While David Bierce
had the authority to sign the collective-bargaining agreement,
he explained to DeStefano that his father was not there and
he wanted to discuss the contract with his father. David
Bierce leafed through the contract and saw the $400 lump
sum bonus that was effective May 1, 1987. Assertedly he did
not go beyond the section on wages at this point. Bierce tes-
tified that he asked DeStefano if the bonus had to be applied
625HENRY BIERCE CO.
12 David Bierce negotiated the prior contract with DeStefano,
which contract was retroactive. Bierce conceded that it had been his
and DeStefano’s practice to make everything retroactive.
13 David Bierce testified that his brother, who was in the room at
the time, asked DeStefano why that was a preposterous question. As-
sertedly, DeStefano told him to mind his own business.
14 DeStefano testified that in the industry involved herein it is not
uncommon to have contracts signed well after they have been nego-
tiated. To illustrate, the General Counsel introduced the relevant por-
tions of a contract the Union entered into with John Eagon Com-
pany, which handles the same products as Respondent, and which
was effective beginning May 1, 1987, and not signed until May 6,
1988. (G.C. Exh. 17(a).) The relevant portions of contracts involving
four other similar situations were introduced. (G.C. Exhs. 17(b)
through (e).)
15 G.C. Exh. 10. On Cross-examination, DeStefano testified that he
believed that it was around August. And then he testified that he
thought that it was September or October. Regarding art. 1, sec. 2
of G.C. Exh. 10, DeStefano testified that the Union did not appoint
a union steward and the members did not want a steward. With re-
spect to art. 3 of G.C. Exh. 10 DeStefano testified that the change
to $400 in each of 3 years was agreed to by the Company.
DeStefano also testified that he and Bierce did not agree to change
the starting time and such a change would be a typographical error.
The starting time was changed from 6–8:30 a.m. to 6:30–10 a.m.
DeStefano testified that this gave the Company more flexibility on
starting times. Also, DeStefano testified that he and Bierce did not
discuss changing the holiday section of the contract, the benefits to
be afforded to keymen, vacation schedules, or any changes in the
health and welfare program; that the obligation with Central States
effective May 1, 1990, was not discussed with Bierce; that while
Bierce did not want to be a part of the multiemployer association
the contract language speaks to the multiemployer association; and
that while he and Bierce agreed to eliminate the severance benefit
plan, art. 9 of G.C. Exh. 10 has the heading ‘‘RETIREMENT AND
SEVERANCE BENEFIT PLAN.’’ According to DeStefano, the only
change in the holiday provision was to have one personal day in the
‘‘new’’ contract versus two personal days in the old contract. But
since the employees’ birthday was added to the ‘‘new’’ contract, the
total number of personal holidays remains unchanged. DeStefano tes-
tified that he could not see what change there was in benefits to
keymen; and that the Employers’ Association was no longer in exist-
ence at the time of the ‘‘new’’ contract and, therefore, any reference
thereto is meaningless. On recross-examination DeStefano testified
that the contract he brought to Bierce in 1988, unlike the 1984 con-
tract, obligated the Employer to pay keymen for certain holidays
while they were on layoff; that the 1988 contract he brought to
Bierce added an extra week’s vacation to the schedule for those hav-
ing 20 years of service; and that Bierce believed that there still was
an Employer’s Association.
Morgan testified that after Bauch, the union steward at Bierce, re-
tired, no steward was assigned to Bierce. Morgan was the only one
left in the Union after Bauch retired. Morgan was aware of the $400
lump sum bonuses but he did not file a grievance over not receiving
them.
retroactively.12 According to Bierce, DeStefano could not an-
swer. David Bierce testified that he also asked DeStefano if
he had made any progress in negotiations with Medina Sup-
ply, which is a competitor of Bierce. According to David
Bierce’s testimony, at this point DeStefano ‘‘more or less
stormed out of . . . [the] office.’’13 David Bierce then
looked through the contract. According to his testimony,
when he found some clauses which seemed to be departures
from the previous contract he telephoned Bierce’s attorney
who advised him that he would handle the matter.
When subsequently called by Respondent, David Bierce
testified that he never told DeStefano in August 1988 when
he came to Bierce’s facility that ‘‘the contract looks good,
looks fine. . . . [and] he just wanted to have. . . . [his] dad
review it.’’ Regarding the contract DeStefano brought to
Bierce in August 1988, David Bierce testified that there had
been no prior discussion of starting time, winter hours, holi-
days, key men, extending Bierce’s pension obligation to Cen-
tral States beyond the term of the contract and adding a pro-
vision that would obligate Bierce to an employer’s associa-
tion trust agreement; and that he never had an understanding
that he was supposed to eliminate the severance plan.
On rebuttal, DeStefano testified that he did not recall any
conversation regarding Medina Supply when he dropped off
the contract at Bierce in August 1988; that when he gave the
contract to David Bierce he, DeStefano, pointed to the $400
bonus and the casual rates; that David Bierce then said,
‘‘Well Bob, do you have any objection if I give it to my
dad? He’s not in too good shape. He’s in the hospital;’’ and
that he agreed since at that time he felt that David Bierce
was credible.
According to DeStefano’s testimony, when the contract
was typed in September 1987 and he telephoned David
Bierce and told him that the contract was ready to be signed,
David Bierce said that he would come down the first chance
he got. Between September 1987 and the summer of 1988
DeStefano telephoned David Bierce three or four times about
signing the contract.14 In September 1988, according to his
testimony, DeStefano brought the contract15 to Respondent’s
place of business. He gave it to David Bierce, who asked to
be given the opportunity to go over it with his father who
was in the hospital. According to DeStefano’s testimony,
David Bierce said, ‘‘[t]here will be no problems of getting
it signed.’’
A couple of weeks after he dropped off the contract
DeStefano telephoned David Bierce. Bierce told him that he
was meeting with an attorney and that his attorney would
telephone DeStefano.
At the end of September or in early October 1988 Re-
spondent’s employee Alfred Boulton had a conversation with
Joseph Thompson, a yardman, in Respondent’s yard. David
Bierce was present. Thompson asked Bierce about uniforms
saying, ‘‘If we were union we’d be—we would get uni-
forms.’’ Boulton then said, ‘‘You go ahead and ruin a good
thing between the—the relationship between the drivers and
the company.’’
In late September or in October 1988 DeStefano for-
warded a copy of the contract to Respondent’s attorney. And
in October 1988 DeStefano and the Union’s attorney met
with Respondent’s attorneys. At the meeting, DeStefano
showed Respondent’s attorneys his notes of the meetings and
his copy of the contract. Bierce’s attorney, Steve Nobil, told
DeStefano that there was a poll of employees. DeStefano tes-
tified that he knew what kind of poll it was.
Subsequently DeStefano spoke with Respondent’s attorney
who stated that the Respondent’s position was that there was
no contract. The Union then filed an unfair labor practice
charge.
Morgan, who as indicated above is an employee of Bierce,
testified that Respondent’s employees were asked by Lou
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Morgan was not sure if the vote was taken in March or Novem-
ber 1988.
17 Papoi did not recall the ballot having any writing on it but he
testified that it could have had writing on it.
18 Boulton, Carl Strouble, Mark Wisel, Thompson, and John Walk-
er. Morgan was not present.
19 Strouble’s affidavit to the Board indicates that the employees
were not told the outcome of the vote when Summers counted them.
20 R. Exh. 6 reads: ‘‘BALLOT Do you wish to be represented by
the Teamsters Chauffeurs and Helpers of America, Local No. 348?’’
It also has two boxes with ‘‘YES’’ above one and ‘‘NO’’ above the
other.
Bierce to participate in a secret-ballot vote;16 that he and the
other drivers were told that they should vote either for the
Union or to get out of the Union; that they went into the
paint room in the stockroom and voted and then dropped
their votes in a cigar box; that he never heard anything more
about the Union; and that he never complained that he did
not want the Union or that he was dissatisfied with the
Union.
Boulton, who began working for the Respondent as a
yardman and truckdriver in March 1988, testified that he,
along with five other drivers and yardmen voted at Bierce’s
facility on whether or not they wanted the Union. According
to Boulton, Dave and Tom Bierce were present. Assertedly
Dave Bierce did most of the talking, asking employees
present to vote on whether they were interested in being
union or nonunion. Initially Boulton did not recall the
Bierces saying that they wanted to be nonunion or union.
After looking at his affidavit to the National Labor Relations
Board (the Board), Boulton recalled that ‘‘[t]hey said they
would like to run the business as non-union, but it was up
to us to take the vote. . . . They couldn’t force us to do ei-
ther way.’’ Also, Boulton testified that they said, ‘‘[t]hey
wanted to be able to run the company the way they wanted
to’’ and ‘‘[t]hey wanted to be able to have a wage where
they could be competitive in the market.’’ When the employ-
ees asked what kind of guarantees there were they were told,
according to Boulton, by the company representative that
‘‘they were not . . . [free] to say anything that would . . .
[influence] us to vote one way or the other.’’ Boulton testi-
fied that it was a private vote with the employees writing
down yes or no on a piece of paper and putting it in a box.
Subsequently Boulton testified he did not recall if he
checked a box or wrote on the piece of paper. He believed
that Leonard Summers took the votes off to the side and
counted them. According to Boulton, the employees stood
around until they were told the outcome. Boulton never
talked to the Bierces about the Union or complained about
the Union. On cross-examination, Boulton testified that he
became aware that one of the Respondent’s drivers, Morgan,
was in the Union; that at no time did he authorize a dues
deduction for Local 348 to get into the Union; that the poll
was in November 1988; that when Dave Bierce gave a
speech to the employees before the poll he appeared to be
reading from a document; that Respondent’s Exhibit 5, at-
tached hereto as Appendix A, appeared to be the speech
David Bierce read before the vote; that David Bierce was
reading the entire time; that he thought that David and Lou
Bierce were not present when the employees voted; that
Summers basically supervised the vote; that Summers does
not act as a supervisor over the yardmen or the drivers; that
he was never asked to join the Union; and that the first time
he met DeStefano was in May 1989 when he gave an affi-
davit to the Board representative and DeStefano was present.
On redirect, Boulton testified that before the employees
voted David Bierce read the statement and Tom Bierce said
something to the effect that he wanted to be able to run the
Company without people watching what he was doing all of
the time; and that Tom Bierce was not reading from a piece
of paper when he made his statement.
Robert Papoi was hired as a yardman by Respondent in
1987. He became a truckdriver later that year. Papoi testified
that a vote was taken at the Company’s facilities concerning
whether or not the employees wanted a Union; that David
Bierce called the meeting of employees; that David and Tom
Bierce and Summers were present; that David Bierce read
from a paper; that the ballot was not printed but rather was
just a blank piece of paper;17 that the employees were told
to go into a paint storage room and put a yes or no on the
paper; that he has never talked to any representative of the
Company about the Union; that he has never complained to
anyone in the Company about the Union; that five other driv-
ers and yardmen were present;18 that after he voted the bal-
lots were put in a basket or something Summers had; and
that Summers took the votes out of the basket and counted
them indicating that there were four against and one for the
Union. On cross-examination Papoi testified that when he
was hired he was aware that there was a Union at the Re-
spondent and that Morgan, Bauch, and McAninach were in
the Union. But he, Papoi, did not ask to join the Union and
he never signed a dues authorization checkoff during his em-
ployment at Bierce. Papoi never met DeStefano before the
hearing herein. He was not apprised of the existence of a
collective-bargaining agreement for May 1, 1987, and he was
never asked to ratify or vote on that agreement.
Strouble, who was hired by Respondent in 1988, testified,
regarding the vote, that David and Tom Bierce called the
meeting; that David and Tom Bierce, Summers, and six em-
ployees were present; that the purpose of the meeting was to
vote to see if the employees ‘‘wanted to go union or non-
union’’; that David Bierce read from a piece of paper; that
Tom Bierce did not talk at this meeting; that after David
Bierce read a statement the employees went to another room
one-by-one and voted; that there was nothing typed on the
piece of paper on which the employees were to put a yes or
no; that Summers took the ballots and counted them;19 that
he was told that the ballots were counted by Summers at that
time but he never saw this occur; that he never complained
about the Union or about not being in the Union; and that
he never discussed the Union in the presence of any of the
Bierces. On Cross-examination, Strouble testified that he
never authorized the Company to make deductions for the
Union; that when he was hired by Respondent he became
aware that there was a Union there; that he knew Morgan
was in the Union; that he did not receive lump sum pay-
ments of $400 in either May 1987 or 1988; that Respond-
ent’s Exhibit 6 looks like the involved ballot;20 and that he
never met DeStefano before March 1989 when he met him
regarding the instant proceeding.
Wisel was hired by Respondent in May 1988 as a yard-
man. Subsequently he began to drive a truck for Respondent.
Regarding the vote on the Union, Wisel testified that David
627HENRY BIERCE CO.
21 Bierce testified that subsequently the employees as a group re-
quested uniforms; and that ‘‘when they came to us in unison like
that, we saw the support for such a thing, and recognized it, and pro-
vided them uniforms.’’
22 Bierce, following its usual practice, did not notify the Union
about the new hires, namely Strouble, Boulton, Thompson, and
Papoi. Art. II, sec. 1 of the last collective-bargaining agreement be-
tween Respondent and the Union contains, as here pertinent, the fol-
lowing language: ‘‘THE EMPLOYER SHALL NOTIFY THE
UNION IN WRITING OR BY TELEPHONE AS TO THE EM-
PLOYEE’S DATE OF ORIGINAL EMPLOYMENT.’’ G.C. Exh. 3.
None of these employees were brought within the Central States
Pension program. Rather, they were brought under Bierce’s profit-
sharing plan, R. Exh. 4, and placed in Respondent’s own group
health insurance plan, R. Exh. 3. Previously, drivers Walker, Bond,
and Noel were placed in Bierce’s own group health insurance plan.
Bierce did not notify the Union of this. None of these employees
filed a grievance over being included in the Company’s own plan.
And none authorized dues deductions for Local 348. Employees
hired from May 1988 up to the time of the hearing herein, Tom
Rhoden and Mark Wisel, were also placed in Bierce’s profit-sharing
plan and its own group health insurance plan and neither filed any
grievances over this.
23 The letter, as pertinent, reads as follows:
As I indicated to you on the telephone earlier this week, the
Company has objective evidence that Local No. 348 affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America no longer represent a
majority of the employees of the Company; that there is no cur-
rent collective bargaining agreement in effect; and that the Com-
pany no longer recognizes you as the bargaining representative
for its employees.
DeStefano testified that he never received this letter.
Bierce read from a piece of paper before the vote was taken;
that the employees then went into the backroom of the side
of the paint room and voted separately; that he did not think
the ballot had anything on it; that he thought that the em-
ployees wrote yes or no on it; that he did not think they
counted the vote; that he had never discused or complained
to the Bierces about the Union or about the fact that he was
not in the Union; and that he has never had a discussion with
anyone in supervision about the Union. On cross-examina-
tion, Wisel testified that when he was hired he was aware
that Morgan was in the Union; that he never signed an au-
thorization to deduct dues for the Union from his paycheck;
that Tom and David Bierce left the meeting when the voting
took place; that Summers supervised the voting; that the em-
ployees voted in a separate room; that Respondent’s Exhibit
6 was the ballot he was asked to complete when he voted;
and that he first met DeStefano just a few days before he,
Wisel, testified here.
David Bierce testified that he conducted the poll because
he wanted to determine what the sentiments of his employees
were regarding the Union; that in late August or early Sep-
tember 1988 he, Boulton, and Thompson were working in
the yard and Thompson asked Bierce what the Company was
going to do about getting uniforms; that he told Thompson
that he did not know that the Company was going to do any-
thing for certain about getting uniforms; that Thompson said
that if the employees were in the Union they would have
uniforms; that Boulton replied, ‘‘If you want to screw up a
good thing over something as stupid as uniforms, get the
Union in here’’;21 that no one else complained to him about
the Union; that there was very little discussion about the
Union; that no one else indicated that they were dissatisfied
with the Union; that the vote was conducted because there
was one guy in the Union and Bierce had a bunch of new
hires22 and he felt it was time to discern what the people
wanted; that seven employees voted, including Morgan who
voted earlier on the same day because he was leaving on va-
cation; and that on November 9, 1988, after the election,
Bierce’s attorney, who had advised Bierce on how to conduct
the vote, wrote to DeStefano advising him that Bierce was
not going to recognize the Union anymore (G.C. Exh. 23.).23
When subsequently called by Respondent, David Bierce
testified that the poll occurred near quitting time between 4
and 5 p.m. on a Friday; that the regular payday at Bierce has
always been Wednesday; that Morgan, who was going fish-
ing on Lake Erie, voted earlier that day; that he read a
speech prepared by Bierce’s attorney, R. Exh. 5, to the em-
ployees, including Morgan, before they voted; that he did not
deviate from the prepared speech; that he and his brother left
the area while the voting took place; and that the results of
the poll were one vote to maintain union representation and
six votes against.
On rebuttal, DeStefano testified that normally when com-
panies hire new employees they notify the Union.
Summers, who is a salesman for Bierce, testified that in
November 1988 David Bierce asked him to be in charge of
a poll of the employees; that he does not exercise any kind
of supervisory authority over the yardmen or drivers; that the
employees were given a slip of paper (R. Exh. 6), and they
were asked to fill out the ballot either for or against and fold
the paper and place it in a box; that he removed the ballots
from the box and he handed the ballots to David Bierce; that
everybody was present when David Bierce opened the bal-
lots; that David Bierce left the room when the employees
were voting; and that he believed that David and Tom Bierce
were called back into the room when all of the ballots were
in the box.
Morgan, who was employed at Respondent since 1953,
testified that he has been a member of the Union since 1956;
that in March 1989 David Bierce, in his office, told Morgan
that Respondent was going to get out of the Union and it
wanted to set up a program for Morgan under which he
would receive the same benefits and retirement that other
employees of Respondent received; that Bierce said that
Morgan would be able to work until he was 60 years old;
that Bierce wanted him to drop out of the Union; that Lou
Bierce, David Bierce’s father, told him that Respondent was
going to get out of the Union since Morgan was the only one
in the Union and Respondent was not ‘‘signing up anybody
else in the union.’’
David Bierce testified that he fired Noel in 1987 or 1988
for returning from lunch with alcohol on his breath; and that
no grievance was filed over his termination. On cross-exam-
ination Bierce testified that he did not notify the Union that
Noel had been discharged; and that he never advised Noel
that he could talk to a union representative.
General Counsel’s Exhibit 13, which is a record of the
payments which Respondent made to the Teamsters 348
Health and Welfare Fund, shows that at the time of the hear-
ing herein, Respondent was current with its payments. Also,
at the time of the hearing herein, Respondent had continued
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The items include starting time, holiday benefits, guarantee of
winter hours, the ‘‘key men’’ provision, vacation time after working
only 1250 hours a year, and three changes in the retirement section.
to pay the pension for one of its employees, Morgan. (G.C.
Exh. 14.) And Respondent made payments to the Union’s
Charitable Educational Recreational (C.E.R.) Fund through
1989. (G.C. Exh. 15.)
David Bierce testified that at the time of the hearing herein
Respondent continued to pay the health and welfare, the
C.E.R. and the Central States pension on Morgan and it con-
tinued to deduct dues for Morgan notwithstanding the fact
that it no longer recognized the Union and it no longer had
a collective-bargaining agreement with the Union because it
did not want to do anything to jeopardize the benefits Mor-
gan had coming to him from the Union; and that this was
done against the advice of Bierce’s attorney.
When subsequently called by Respondent, David Bierce
testified that Respondent continued making the deduction and
matching contribution for severance pay. He reiterated his
earlier testimony that a union representative during a strike
at Bierce in the early 1980’s threatened to terminate the ben-
efits of Bierce’s employees if Bierce did not sign the in-
volved contract. Also, David Bierce testified that the Re-
spondent has never been audited regarding the Union’s pen-
sion, health and welfare, checkoff or C.E.R. fund; that Bierce
has never received a request from the Union for an employee
seniority list; and that Bierce has never been subjected to
legal proceedings regarding moneys that may have been due
or owed by Bierce to these plans.
DeStefano testified that he did not recall any grievance or
arbitration that he was involved in at The Henry Bierce Co.;
and that within a few days of the hearing herein he became
aware that the Company was providing its own health benefit
program to drivers and yardmen.
Analysis
As noted above, the September 29, 1989 consolidated
complaint alleges, as here pertinent, that Respondent unlaw-
fully failed and refused to execute a written contract em-
bodying an agreement reached with the Union on April 24,
1987, which contract the Union requested the Respondent to
execute in September 1987 and since November 1988 Re-
spondent has failed and refused to execute. As set forth
above, some of the language in the collective-bargaining
agreement which the Union gave the Respondent to sign was
not agreed to by Bierce. Indeed, some of the provisions in
the contract which General Counsel contends Bierce should
have signed were never even discused in the negotiations.
General Counsel takes the position on brief that all material
aspects of the contract, including wages, were agreed to by
Bierce and that those provisions in the collective-bargaining
agreement which were never agreed to either benefit Re-
spondent, do not change the situation, or have no effect on
it. More specifically, General Counsel indicates that while
the provisions eliminating the exception to paying key men
holiday pay for Christmas or New Year’s Day if they were
on layoff was erroneously included, it is General Counsel’s
position that none of Respondent’s employees, except Mor-
gan, would qualify for this provision under the contract dur-
ing its term. Assertedly, since Bierce does not lay off em-
ployees, the involved clause would have no effect on Re-
spondent’s operations. General Counsel contends that by Re-
spondent’s own admission there was a meeting of the minds
except for the wages to be paid; that while the contract given
to Respondent to sign may have contained a few altered
clauses or provisions which in reality were of little or no sig-
nificance, this can be easily remedied; that at no time since
Respondent was asked by the Union to sign the contract did
it ever object, or inform the Union, or the Regional Office
that it objected to the inclusion of these clauses in the pro-
posed collective-bargaining agreement; that the only action
that Respondent engaged in was to conduct an unlawful poll
and to use this as the basis to withdraw recognition from the
Union; that in 1984 all of Respondent’s employees were in
the Union; that at the time Respondent was presented with
a contract to sign its work force had changed substantially
in that it had only one employee to whom it was paying con-
tractual benefits and wages; that all other employees had
been hired since April 1987 which fact was concealed from
the Union, at rates and benefit levels substantially below the
contract; and that it was because of this fact that Respondent
determined to refuse to sign the contract, conduct an illegal
poll and to unlawfully withdraw recognition from the Union.
Respondent, on brief, contends that General Counsel has
failed to sustain his burden of establishing a full and com-
plete meeting of the minds which is an indispensable predi-
cate to any Board order compelling execution of an agree-
ment; that admittedly a number of material items altered
from the 1984–1987 collective-bargaining agreement were
not discussed let alone agreed upon;24 that not all of the ma-
terial changes served to benefit the Company; that the con-
tract was unilaterally altered by the Union so that Respond-
ent became contractually obligated for a full day’s pay for
Christmas and New Year’s Day when in layoff mode; that
another unilateral alteration accorded an extra week of vaca-
tion to those employees hired after April 30, 1983, having
20 years of service; that the Union unilaterally established
another benefit whereby employees were deemed to have ac-
crued a complete year of service for vacation purposes upon
working merely 1250 hours in a year; that the Union drafted
1987–1990 proposed contract bound the Company to con-
tinue its Central States pension contributions, including any
incremental increases under the National Motor Freight
Agreement, effective May 1, 1990, notwithstanding the re-
mainder of the contract expired by its terms on April 30,
1990; that the Union unilaterally added a provision which
not only authorized Central States to enter into various trust
agreements to administer its fund, but waived the Company’s
right to contest any such agreements that had already been
reached; and that the Union tied the Company to the multi-
employer association it had so clearly objected to on several
occasions.
Not even taking into consideration the conflicting evidence
regarding wages and severance pay, the differences between
the Union’s draft contract and what was discussed and under-
stood during negotiations demonstrates that there could not
have been a meeting of minds between the parties. It matters
not that Respondent did not immediately point out the dif-
ferences. What I am faced with is the assertion that Respond-
ent should be required to execute the Union’s draft contract.
I cannot resolve the differences for the parties. And even if
I could, that is not my function. The above-described dif-
ferences do not constitute minor deviations from any under-
629HENRY BIERCE CO.
25 In my opinion, it is of no significance herein that Morgan did
not vote at the same time as six of the other employees.
standing reached by the parties. A collective-bargaining
agreement arises only after a meeting of the minds on all
material terms of the contract. Clearly there was no meeting
of the minds on the above-described material provisions in
the Union’s draft contract. The Board does not have the
power to compel a company to agree to any substantive con-
tractual provision of a collective-bargaining agreement. H. K.
Porter Co. v. NLRB, 397 U.S. 99 (1970). And it cannot ‘‘sit
in judgement upon substantive terms of collective bargaining
agreements.’’ NLRB v. American National Insurance Co.,
343 U.S. 395, 404 (1952). Consequently, I find that Re-
spondent did not violate the Act when it refused to execute
the purported agreement.
As noted above, the General Counsel, at the hearing,
moved to amend the complaint to include an allegation that
on or about November 1, 1988, Respondent, at its facility
unlawfully polled its employees and thereafter on the basis
of this unlawful polling withdrew recognition of the Union
in violation of Section 8(a)(1) and (5) of the Act. More spe-
cifically, the General Counsel made the motion on the sec-
ond and last day of the hearing just before resting his case.
Respondent objected. The motion was taken under advise-
ment.
The General Counsel, on brief, contends that the motion
should be granted since the unlawful polling and subsequent
withdrawal of recognition were the direct result of and arose
from the same factual circumstances and sequence of events,
namely the Union presenting the Respondent with the collec-
tive-bargaining agreement to sign; that Respondent has raised
the same or similar defenses to both the failure to execute
the contract and the proposed amendments; and that the pro-
posed amendments were fully litigated.
Respondent argues, on brief, that the Board has been par-
ticularly reluctant to allow a hearing amendment where, as
here, the General Counsel and Charging Party were both
aware of the violation well in advance of the hearing and for
whatever reason chose not to pursue a timely amendment,
Dayton Auto Electric, 278 NLRB 551 (1986); that in New
York Post Corp., 283 NLRB 430 (1987), the Board found it
would be unjust within the meaning of Section 102.17 of the
Board’s Rules and Regulations to allow an amendment at the
last minute where the General Counsel was aware of the al-
leged unfair practices well in advance of the hearing; that in
Seward International, Inc., 270 NLRB 1034 (1984), the
Board noted that in considering the just nature of the amend-
ments at trial it looks at whether the General Counsel has
given the opposing party any formal pretrial notice con-
cerning the pendency of potential amendments, which notice
may vitiate the due process concerns raised by unexpected
trail amendments; that in Nickles Bakery of Indiana, 296
NLRB 927 (1989), the Board indicated that (a) it would re-
quire a ‘‘significant factual affiliation’’ between a proposed
amendment to a complaint at hearing of an allegation not
previously articulated by way of a prior charge or complaint,
and (b) it would focus on whether (1) the otherwise untimely
allegations involve the same legal theory as the allegations
in the pending timely charge, (2) the otherwise untimely alle-
gations arise from the same factual circumstances or se-
quence of events as the pending timely charge, and (3) a re-
spondent would raise similar defenses to both allegations;
that here the belated inclusion of Respondent’s poll would
involve a challenge predicated on Section 8(a)(1) of the Act
which assertedly has not been alleged in either of the charges
involved herein; that the polling, the circumstances in which
it was undertaken, and the predicate justification for under-
standing it are wholly unrelated to allegations that Respond-
ent refused to execute a ‘‘agreed-upon’’ bargaining agree-
ment; that the Respondent’s defenses, viz, a lack of a meet-
ing of the minds, are entirely distinct from any defenses it
could possibly assert as to the poll; that the proposed amend-
ment is not sufficiently related to the unlawful conduct al-
leged in the complaint; that the Board has refused to allow
an amendment on the basis that it conformed to the proof
presented as evidence, where, as here, an otherwise timely
objection has been made at the hearing, New York Post
Corp., supra; that Respondent’s counsel was completely sur-
prised, ‘‘indeed ambushed at the hearing when it became ap-
parent the General Counsel was attacking the poll through
. . . [the employees called as] witnesses’’ herein when Re-
spondent’s counsel assertedly believed they were called to
testify about the alleged direct dealing with employees since
the charge in Case 8–CA–21995 (G.C. Exh. 1(h)), alleged
that Respondent had directly dealt ‘‘with its employees’’ and
since these employees were only subpoenaed after the com-
plaint was amended to allege direct dealing; and that it is ax-
iomatic that if the poll of the unit cannot legitimately be
challenged, neither can Respondent’s withdrawal of recogni-
tion.
As set forth above, Respondent cites Seward International,
Inc., supra. There a majority of the Board, namely Chairman
Dotson and Board Member Hunter, speculated, according to
dissenting Board Member Zimmerman, about how Respond-
ent may have been prejudiced by the General Counsel being
allowed to amend the complaint after most of Respondent’s
witnesses had testified. Here, both at the hearing and on brief
Respondent does not assert or show how it would be preju-
diced if the General Counsel is allowed to amend the com-
plaint. As noted above, the General Counsel moved for the
amendment before Respondent put its case in. Respondent
did not request a continuance. It is noted that the poll was
first brought up at the trial by Respondent during cross-ex-
amination of the General Counsel’s first witness, DeStefano.
Respondent’s attorney asked DeStefano if he knew about the
poll and if the Union had filed an unfair labor practice
charge regarding the legality of the poll. When the General
Counsel questioned his second witness, employee Morgan,
about the specifics of the poll, Respondent’s counsel did not
object.25 Indeed, one of Respondent’s counsel asked Morgan
on cross-examination about the poll, trying to get Morgan to
indicate whether it took place before Morgan was asked to
switch out of the Teamsters’ plan. Only when the General
Counsel started to question his third witness, employee
Boulton, on the second and last day of the hearing herein
about the poll did counsel for Respondent object, arguing
that there was no allegation in the complaint or charge filed
about the propriety of the poll, neither on substantive or pro-
cedural grounds, and even if the General Counsel tried to
amend the complaint it would be barred by the statute of
limitations. In response, the General Counsel indicated that
Respondent, in its answer to the consolidated complaint, de-
nied majority status and that the poll is material since it
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 On brief, Respondent contends that there are certain inconsist-
encies between its position statement and the testimony of David
Bierce herein because when the position statement was drafted
David Bierce could not locate his ‘‘DAYTIMER’’ and, therefore,
Respondent’s counsel relied on information provided to them by
DeStefano. Subsequently Bierce assertedly located his daily calendar.
This asserted problem with the position statement and asserted ex-
planation apparently were not brought up by Respondent before or
at the hearing herein. It is noted that when the statement was re-
ceived in evidence counsel for Respondent stated that ‘‘there are
matters outside of this position statement that need to be explained
before the document gets in.’’ No attempt was made to elicit an ex-
planation from David Bierce at the hearing after the document was
received.
27 In Dayton Auto Electric, supra, the General Counsel, at the out-
set of the hearing stated that the conduct which eventually became
the subject of the amendment was not an issue. Herein, the General
Counsel did not take this position at the outset of the hearing herein.
In New York Post Corp., supra, the allegations which were the sub-
ject of the amendment were not specifically known to the Respond-
ent and the Respondent not only objected to the amendment but it
had not previously litigated the factual basis for such a violation. In
Nickles Bakery, supra, the charge alleged that Respondent
discriminatorily disciplined the Charging Party because he was a
union steward, in violation of Sec. 8(a)(3) of the Act and the com-
plaint alleged that Respondent violated Sec. 8(a)(1) of the Act by
maintaining a no-solicitation rule. There the General Counsel relied
almost entirely on the contention that the ‘‘other acts’’ language in
the charge form sufficiently supported the complaint allegation. The
General Counsel did not take that approach here.
shows what was happening and what was occurring at that
time. The objection was overruled.
In General Counsel’s Exhibit 23, a letter Respondent’s at-
torney assertedly forwarded to DeStefano, which letter is
dated November 9, 1988, it is indicated that Bierce had ob-
jective evidence that the Union no longer represented a ma-
jority of the employees of the Company; that there is no cur-
rent collective-bargaining agreement in effect; and that
Bierce no longer recognized the Union as the bargaining rep-
resentative for its employees.
As noted above, the charge was filed in Case 8–CA–21471
(G.C. Exh. 1(a)), on December 19, 1988. On January 19,
1989, Respondent submitted the above-described 11-page po-
sition statement to the Board. See Appendix B hereto.26 Re-
spondent’s legal argument and conclusions are found on
pages 5 through 11 therein. It is noted that on pages 9
through 11 Respondent treats the involved poll arguing that
it had substantial objective evidence of the loss of union ma-
jority support; that Respondent polled in a noncoercive and
procedurally fair atmosphere pursuant to the guidelines set
forth in Struksnes Construction Co., 165 NLRB 1062 (1967);
and that the Board has held that even assuming the parties
have reached an agreement, if unsigned, it will not serve to
defeat employee dissatisfaction of union representation which
follows formation of the contract, but prior to its execution.
Crothall Hospital Services, 270 NLRB 1420 (1984). It is
also noted that in its February 16, 1989 answer to the origi-
nal complaint (G.C. Exh. 1(c)), Respondent made the fol-
lowing affirmative defense: ‘‘[a]t all times material herein,
Charging Party did not, in fact, represent a majority of em-
ployees in an appropriate unit for collective bargaining.’’ Its
answer of October 13, 1989, to the amended consolidated
complaint (G.C. Exh. 1(l)), herein contains the same affirma-
tive defense. Also, it is noted that while Respondent claims
surprise based on the fact that the charge in Case 8–CA–
21995 (G.C. Exh. 1(h)), speaks to direct dealing and bar-
gaining with its ‘‘employees,’’ paragraph 7 of the amended
consolidated complaint, dated September 29, 1989 (G.C.
Exh. 1(j)), specifies ‘‘informed an employee that it was rid-
ding itself of the Union and dealt directly with said employee
over benefits, including his retirement, and other terms and
conditions of employment.’’ (Emphasis added.) Respondent
was not surprised. In cross-examining DeStefano, Respond-
ent’s counsel demonstrated that his only surprise regarding
this aspect of the proceeding was that there was no charge
filed over this matter. Respondent has not shown how it may
have been prejudiced. And I do not believe that there is any
way it would be actually prejudiced by the amendment of the
complaint to include the allegations regarding the poll and
the withdrawal of recognition of the Union. Also, the poll is
very much related to Respondent’s refusal to execute. Re-
spondent itself demonstrates that the poll is significantly re-
lated in its above-described November 9, 1988 letter, its
above-described position statement, and its two above-de-
scribed answers. The other cases cited by Respondent can be
distinguished.27
It is also noted that in its brief, at page 51, Respondent
states, ‘‘[w]here an employer legally refuses to execute a
purported agreement, and lawfully polls its workforce and
withdraws recognition, an allegation of direct dealing cannot
lie.’’ Respondent, through its representatives, indicates that
not only is the poll significantly related to its refusal to exe-
cute but it also is significantly related to the amended com-
plaint allegation of direct dealing.
In conclusion, with respect to this aspect of the pro-
ceeding, the poll and the withdrawal of recognition are sig-
nificantly related to the involved charges, the matter was
fully litigated, Respondent’s objection to the receiving of evi-
dence on this matter, in my opinion, was not timely, Re-
spondent itself has made the poll and the withdrawal of rec-
ognition an issue in this case, there was no showing of sur-
prise which may have hampered Respondent’s presentation
of its defense on this aspect of the case, Respondent has not
demonstrated that it would be prejudiced, and, in my opin-
ion, Respondent would not actually be prejudiced by the
granting of the General Counsel’s motion to amend. Accord-
ingly, the General Counsel’s motion to amend the amended
consolidated complaint is hereby granted.
Did Respondent violate the Act by conducting the poll, in
the way it conducted the poll and by subsequently with-
drawing recognition from the Union?
The General Counsel, on brief, argues that Respondent had
no objective considerations in justification of the poll it con-
ducted among its employees; that not one unit employee ever
indicated to the Respondent before the poll that he did not
wish to have the Union represent him for purposes of collec-
tive bargaining; that the Board applies the ‘‘reasonable
doubt’’ test to determine whether an employer can legiti-
mately poll its employees about their continued support for
an incumbent union and this is the same standard the Board
applies in determining whether an employer may legitimately
withdraw recognition from a Union; that a Respondent vio-
lates Section 8(a)(1) and (5) of the Act when it fails to pro-
vide a union with advance notice of the time and place of
a poll, Texas Petrochemicals Corp., 296 NLRB 1057 (1989);
631HENRY BIERCE CO.
28 Not all eight were employed at Respondent when the involved
poll was taken.
29 Regarding the Sixth Circuit’s decision in Thomas Industries,
Inc., supra, the Board at 1063 in Texas Petrochemicals Corp., supra,
pointed out that it was aware that the court criticized the Board’s
standard on the grounds that ‘‘an employer would only be allowed
to take a poll under circumstances where no poll was necessary; the
only value of the poll would be to double check the employer’s al-
ready sufficient evidence to refuse to bargain.’’ The Board went on
to indicate, as here pertinent, that it respectfully differed with this
view, emphasizing that the ‘‘reasonable doubt’’ standard neither pro-
hibits nor renders meaningless an employer’s polling of employee
sentiments regarding a recognized representative. Chairman Ste-
phens, in his concurring opinion, pointed out that the Sixth Circuit
was mistaken about the substance of the Board’s standard for rea-
sonable good-faith doubt of majority in that the court appeared to
believe that the ‘‘good faith doubt’’ test was no different from the
‘‘actual loss of majority test,’’ because at page 867 of its decision
the court stated that the Board took the position ‘‘that an employer
must set forth objective evidence establishing that over 50 percent
of affected employees have rejected the incumbent union as their rep-
resentative before the employer may take a poll.’’ (Emphasis added
by Chairman Stephens.)
and that if an employer withdraws recognition because of the
results of an unlawful poll, it violates Section 8(a)(1) and (5)
of the Act for the poll itself is an unfair labor practice.
Respondent argues, on brief, the it had a legitimate, identi-
fiable justification for polling its work force since eight of
the employees hired as either drivers or yardmen since 1989
did not authorize dues deductions or make periodic payments
to the Union and none of them were in any union affiliated
benefit trust fund;28 that the ‘‘most probative evidence of
loss of support for the union was the decline in dues check-
offs,’’ Thomas Industries v. NLRB, 687 F.2d 863, 868 (6th
Cir. 1982); that Respondent does not have to show that an
actual numerical majority opposes the Union but rather it
must show that it had objective reasons for doubting the
Union’s majority status, Kelly’s Private Car Service, 289
NLRB 30 (1988); that the Union was inactive in that (a) no
grievances or arbitrations were ever presented despite the
rather open and serious violations of the involved contract
and the prior contract, (b) none of the unit members were
provided minimum input into the ‘‘contract’’ prior to nego-
tiations or were asked to ratify it consistent with the Union’s
own constitution, and (c) some of the employees who had
worked for Respondent for years had never met the Union’s
business agent until the very day of the hearing; that inac-
tivity between the employer and the Union and between the
Union and its members are valid considerations, Flex Plas-
tics, 262 NLRB 651 (1982), enfd. 726 F.2d 272 (6th Cir.
1984); that it had been over 17 months since these parties
left the bargaining table without any sort of an agreement
and a 6-week hiatus is sufficient evidence; that another jus-
tification for Respondent taking the poll was employer
Boulton’s comment in the presence of David Bierce, namely,
‘‘[i]f you want to ruin a good thing go ahead and try and
get a union in here’’; that the union steward departed without
replacement; that the poll was procedurally correct since it
strictly complied with the Board’s requirements set forth in
Struksnes Construction Co., supra; that the speech David
Bierce read immediately prior to the voting was ‘‘borrowed
wholesale’’ from one which has already gained approval
from the circuit court that would review any decision reached
in this case, Thomas Industries v. NLRB, supra; and that the
Texas Petrochemicals Corp., supra, new requirement of some
type of notice to the union before the poll cannot be imposed
upon Respondent in this case since it was not even advanced
by the Board until almost a year after Respondent conducted
its poll in complete compliance with the existing Board
precedent.
As pointed out by the Board in Texas Petrochemicals
Corp., supra at 1061:
In order to preserve industrial and bargaining sta-
bility, an incumbent union enjoys an irrebutable pre-
sumption of majority support for 1 year following cer-
tification. This presumption remains in effect during the
term of a collective-bargaining agreement, and there-
after becomes rebuttable, on a showing of actual loss
of majority support for the union, or a showing of rea-
sonable doubt on the part of the employer, based on
sufficient objective considerations, that the union con-
tinues to enjoy majority support. When an employer has
sufficient objective considerations on which to base a
reasonable doubt about a union’s continued majority
status, but might not wish to test the accuracy of that
doubt directly by withdrawing recognition from the
union, the Board holds that the employer may petition
for a Board-conducted RM election under Section
9(c)(1)(B), or poll its employees about their union sen-
timents. [Footnotes omitted.]
The Board went on to indicate that its ‘‘reasonable doubt’’
standard was not accepted by three United States Circuit
Courts of Appeal, which courts use the less stringent ‘‘loss
of support’’ standard. It is pointed out by the Board that
‘‘there is no compelling need for an employer with doubts
concerning the majority status of its employees’ selected rep-
resentative to test the actual extent of support for the rep-
resentative’’; that the courts have recognized the potentially
destructive and unsettling effects of such polls; and that it
believes that the employer’s interest in testing regarding an
incumbent union does not outweigh the statutory goals of
stability in collective-bargaining relationships.29
Did Respondent have a good-faith doubt of majority?
Seven employees participated in the poll. One, Morgan, was
a union member. Two others, Papoi and Walker, were appar-
ently hired before the expiration of the last collective-bar-
gaining agreement (G.C. Exh. 3), between the Respondent
and the Union on April 30, 1987. As noted above, article II,
section 1 of the agreement reads, as here pertinent, ‘‘THE
EMPLOYER SHALL NOTIFY THE UNION IN WRITING
OR BY TELEPHONE AS TO THE EMPLOYEE’S DATE
OF ORIGINAL EMPLOYMENT AND ALSO THE DATES
OF LAYOFF AND RECALL OF EMPLOYEES.’’ Respond-
ent conceded that it did not notify the Union. Consequently,
it appears that at least up until April 30, 1987, Respondent
had a contractual obligation to notify the Union when it hired
an employee in the involved unit. Did that contractual obli-
gation continue after April 30, 1987? Since the notice re-
quirement does not involve a term and condition of employ-
ment, it would not unless it were part of an agreement effec-
tive after April 30, 1987. As noted above, in my opinion the
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 It is noted that the notification provision in the contract affected
less than a majority of those voting in the involved poll.
31 David Bierce is not credited regarding the assertion that
DeStefano said he knew that Bierce had people working for it who
were not in the Union. DeStefano’s denial is credited. DeStefano did
not specifically deny David Bierce’s testimony that although he,
DeStefano, had not seen Bierce’s payroll records he knew Bierce
was not paying scale and as long as he, DeStefano, did not have
somebody from Bierce at his office breathing down his neck, Bierce
could pretty well do what it could get away with. (Emphasis added.)
Assertedly this statement was made at the April 24, 1987 negotiating
session. It is noted that there is no mention of it in Respondent’s
aforementioned January 19, 1989 position statement to the Board. As
pointed out in Flex Plastics, Inc., supra, even assuming that this type
of statement is made by a business agent, it would not justify Re-
spondent’s conduct for such a statement does not reflect employee
dissatisfaction from the Union. Rather it reflects at most what ap-
pears to be one business agent’s alleged individual personal feelings.
Apparently no employee ever filed a grievance regarding the pay
scale. And there was no proof, other than this assertion, that
DeStefano actually knew what Respondent’s pay scale was, or that
it was other than what was called for in the involved collective-bar-
gaining agreement.
32 NLRB v. A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981).
and Forbidden City Restaurant v. NLRB, 736 F.2d 1295 (9th Cir.
1984).
Respondent and the Union did not enter into an agreement
effective after April 30, 1987.
While the failure to notify the Union about the aforemen-
tioned hires is not in itself an unfair labor practice, in my
opinion it demonstrates that, at least to that extent, Respond-
ent did not maintain a hands off approach. In other words,
to a degree it set up the situation and then attempted to cap-
italize on it.30
As indicated above, Respondent cites Thomas Industries,
supra at 868 for, among other things, the proposition that the
‘‘most probative evidence of loss of support for the Union
was the decline in dues check-offs.’’ There, the court went
on to note at page 868 ‘‘[t]he mere fact that a low percent-
age of employees utilize automatic check-offs does not nec-
essarily indicate a loss of support for the Union since check-
offs are voluntary.’’ Also, the court noted ‘‘[b]ecause it is
subject to varying interpretations, even a rapid or large de-
cline in checkoffs may not be enough in itself to justify the
taking of a poll.’’ In that case, the court pointed out, the
Company had additional objective evidence of employee dis-
satisfaction with the Union in that at least one-third of the
employees in the bargaining unit had made negative com-
ments about the Union, there were employee resignations
from the Union and six union officials, including one vice
president, resigned.
Putting aside for the moment Respondent’s assertions on
brief as to why the poll was conducted, lets examine David
Bierce’s testimony as to why he conducted the poll. He testi-
fied that he wanted to determine what the sentiments of his
employees were regarding the Union. What caused him to
want to make this determination? Bierce testified about the
above-described verbal exchange between Boulton and
Thompson which he, Bierce, witnessed. As noted above,
Boulton told Thompson ‘‘if you want to screw up a good
thing over something as stupid as uniforms, get the Union
in here.’’ Neither Boulton nor Thompson were union mem-
bers. Bierce testified that no one else complained to him
about the Union; that there was very little discussion about
the Union; that no one else indicated that they were dissatis-
fied with the Union; and that it was time to discern what the
people wanted because there was one employee in the Union
and Bierce had a bunch of new hires. This does not amount
to the ‘‘additional objective evidence of employee dis-
satisfaction with the Union’’ which the Sixth Circuit spoke
to in Thomas Industries, supra. Boulton’s above-described
comment was the only negative comment about the Union.
Regarding Respondent’s assertions on brief, Respondent
did not demonstrate that the Union actually had any reason
for presenting grievances or for going to arbitration.31 Re-
spondent did not demonstrate that the Union even knew of
the Noel discharge. Respondent certainly did not notify the
Union about the Noel hire. The one union member to testify
herein, Morgan, with respect to input into the contract nego-
tiated in 1987 testified that he discussed the contract with his
union steward. Apparently, the employees were not asked to
ratify the ‘‘new’’ contract. But there is no indication on this
record that Respondent was even aware of that fact when it
took the poll. Also, there is no indication in this record that
Respondent was aware before the involved poll of the fact
that a number of Respondent’s employees had not met
DeStefano before the trial herein. There is no evidence in
this record that any unit employee had sought the Union’s
assistance without receiving its full support during the period
of alleged inactivity. Nothing submitted by Respondent here-
in supports a conclusion that the Union had abandoned its
representative status.
None of the asserted basis indicating the Union’s asserted
inactivity suffice to raise a reasonable good-faith doubt. In-
deed, in my opinion, when the record is considered as a
whole, they would not even meet the less stringent ‘‘loss of
support’’ standard. In my opinion, Respondent has failed to
establish that it had a good-faith doubt of the Union’s major-
ity status reasonably premised upon objective considerations.
Regarding whether the polling itself was ‘‘non-coercive
and procedurally fair,’’ Thomas Industries, supra at 868, it
is noted that Respondent, on brief, points out that the speech
David Bierce gave was taken wholesale from Thomas Indus-
tries, Inc., supra. That is an accurate representation. In that
case the Board took the position that the ‘‘captive audience’’
speech while not an unfair practice in itself, did prejudice the
poll. The court disagreed finding that the speech primarily
communicated the purpose of the poll to the employees as
required by Struksnes Construction Co., supra. The court fur-
ther noted that in that case the union president also spoke to
the employees before the voting. In view of the aforemen-
tioned Board position regarding the ‘‘captive audience’’
speech in Thomas Industries, supra, I must make a similar
finding. This finding is bolstered by the fact that Tom Bierce
did not deny that when the ‘‘captive audience’’ speech was
given he also spoke, extemporaneously, stating that he want-
ed to be able to run the Company without people watching
what he was doing all of the time. And with respect to the
fairness mentioned by the Sixth Circuit, it is noted that no
one representing the Union also spoke to the employees be-
fore the voting. Indeed, the Union did not even know about
the poll until it was a fait accompli. It is also noted that the
other two Circuits, the Fifth (since 1981) and the Ninth
(since 1984),32 which Circuits also apply the less stringent
633HENRY BIERCE CO.
33 Some of Respondent’s other contentions should be treated. Re-
spondent argues that allegations of improper withdrawal of recogni-
tion cannot be sustained where the parties never intended to enter
into a real collective bargaining relationship, Ace-Doran Hauling &
Rigging Co., 171 NLRB 645 (1968), Bender Ship Repair Co., 188
NLRB 615 (1971), and McDonald’s Drive-In, 204 NLRB 299
(1973); that the refusal to execute charge is time-barred because the
Union had knowledge, constructive or otherwise, that Respondent
was not going to execute a contract when it utterly failed to apply
nearly all of the economic and noneconomic obligations, Chambers-
burg County Market, 293 NLRB 654 (1989); and that ‘‘since the
Union has recognized its members only unit it has been widdled to
but one . . . Morgan, there is no longer an appropriate unit for bar-
gaining.’’ Chemtron Corp., 268 NLRB 335 (1935). In Ace-Doran
Hauling & Rigging, supra, the Board concluded that the complaint
allegations must fall because the agreements in evidence failed to
define a unit with a sufficient degree of clarity to warrant a finding
that the contracts are ones to which a presumption of majority status
can attach, and because the practice under the ‘contracts’ makes it
evident that the parties had no intention of entering into a real col-
lective-bargaining relationship. There, one-half of the contracts in-
volved were not signed by an admitted representative of the respond-
ent but rather they were signed by a representative of an association
which respondent asserted did not have authority to sign for it. The
Board indicated that it could not conclude that the contracts raised
a presumption of regularity or that the ‘union’ was the majority rep-
resentative of respondent’s employees. The Board went on to point
out that the evidence relating to the practice under the agreements
further makes it clear that the parties did not intend them to be ef-
fective collective-bargaining contracts; and that the acquiescence of
the unions in respondent’s failure both to enforce the union-security
provisions of the agreements and to pay health and welfare contribu-
tions for all employees makes it clear that the parties did not believe
that they were in a true collective-bargaining relationship. Here there
is no question about the clarity of the unit description.’’ Regarding
the practices under the contract, it is noted that at one time all of
Respondent’s involved employees were in the unit and apparently
Respondent enforced the applicable provisions of the contract. It has
not been demonstrated herein that the Union acquiesced in Respond-
ent’s subsequent failure to enforce the union-security provision, the
wage provision and to pay health and welfare contributions for all
employees. Bender Ship Repair Co., supra, and McDonald’s Drive-
In, supra, also involved unit problems and it was concluded in both
cases that the unit defined therein was ambiguous in scope. In the
latter it was concluded the parties never entered into a true collec-
tive-bargaining relationship out of which a presumption of the
union’s majority status may arise. Here we are dealing with a case
where there is no question but that before the situation at hand arose
Continued
‘‘loss of support’’ standard, require notification to the union
before the employees are polled. And the Board, in Texas
Petrochemicals Corp., supra, required the employer to give
the Union reasonable advance notice of the time and the
place of the poll. But Respondent argues, on brief, that since
its poll was taken before the Board decided Texas Petro-
chemicals Corp., supra, it was not required to give the Union
advance notice of the poll. In Texas Petrochemicals Corp.,
supra, the Board agreed with an administrative law judge that
the Respondent involved in that case independently violated
Section 8(a)(5) and (1) of the Act by failing to provide the
Union with advance notice of the time and place of the poll.
In other words, while the Board had not imposed an advance
notice to the union requirement on employer conducted polls
taken to determine whether an incumbent union continues to
have the support of a majority of the employees it represents,
the Board found therein that the involved respondent had
violated the Act by failing to give advance notice to the
Union. The Board therein went on to point out that the
Struksnes guidelines were initially developed and are most
often applied, in situations where a nonincumbent union is
engaged in an initial organizing campaign, seeking to rep-
resent the employees in question; that at the time of the poll,
the union will ordinarily have been in close continuing, ac-
tive contact with the employees; that even if the results of
such a poll are unfavorable to the union, it is not thereafter
deprived of its entitlement to a Board conducted election on
a sufficient showing of interest; that, at least arguably, ad-
vance notice to the union of such a poll is less critical sub-
stantially and procedurally, than it is to an incumbent union,
where such a union could be legitimately stripped of recogni-
tion as a collective-bargaining representative based on the re-
sults of such a poll; and that the imposition of a procedurally
stringent requirement that an employer provide a union with
reasonable advance notice of such polls is consistent with the
imposition of the substantially more stringent ‘‘reasonable
doubt’’ standard for conducting such polls in the first place.
As noted above, even with the less stringent ‘‘loss of sup-
port’’ standard the Fifth and the Ninth Circuits require ad-
vance notice to the union and the Sixth Circuit made a point
in Thomas Industries, supra, of noting that to be reliable the
polling must be procedurally fair and there the union rep-
resentative also spoke to the employees before the voting.
Respondent’s poll of employees about their continued sup-
port for the Union violated Section 8(a)(5) and (1) of the Act
in that Respondent did not have a reasonable doubt, based
on objective considerations that the Union continued to have
the support of a majority of the employees, but also because
the Respondent failed to provide the Union with reasonable
advance notice of the time and place of the poll.
As noted above, Respondent did not have sufficient objec-
tive considerations on which it could base a reasonable doubt
about the Union’s continued majority status for purposes of
justifying the Respondent’s poll. Similarly its subsequent
withdrawal of recognition was not justified. And obviously
the Respondent cannot rely on the results of the poll as an
objective consideration, because the poll itself was an unfair
labor practice. Respondent’s withdrawal of recognition vio-
lated Section 8(a)(5) and (1) of the Act.
Paragraph 7 of the amended consolidated complaint al-
leges that in or about March 1989, Respondent through its
supervisors and agents David Bierce and Lou Bierce, at its
facility, informed an employee that it was ridding itself of
the Union and dealt directly with said employee over bene-
fits, including his retirement and other terms and conditions
of employment. The General Counsel contends, on brief, that
it follows that if the Respondent’s withdrawal of recognition
from the Union was unlawful, than its direct dealing with
Morgan in March 1989 was also a violation of the Act. As
noted above, Respondent, on brief, argues that where an em-
ployer legally refuses to execute a purported agreement, and
lawfully polls its work force and withdraws recognition, an
allegation of direct dealing cannot lie. While Respondent is
correct about the purported agreement, it is wrong with re-
spect to its assertions regarding the polling and the with-
drawal of recognition. Morgan’s above-described testimony
was not refuted. It is credited. As found above, Respondent
unlawfully withdrew recognition from the Union as the bar-
gaining representative of the above-described employees.33
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the parties had a true collective-bargaining relationship based on ma-
jority status. Regarding Chambersburg County Market, supra, the in-
stant case does not involve a situation where it is asserted that the
charge is timely because it was brought within 6 months of any re-
fusal to execute a contract. The refusal to execute allegation herein
will be dismissed. Nonetheless, it is noted that here the first refusal
occurred within 6 months of the involved charge, and it has not been
demonstrated, in my opinion, that the union was notified of a refusal
prior to October or November 1988. And finally, Chemtron Corp.,
supra, involved a situation where the unit was reduced to a single
person prior to the Respondent’s withdrawal of recognition. There,
no one else shared a community of interest with the one person left
in the unit. Here, when Respondent withdrew recognition there were
a total of seven drivers or yardmen.
34 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.
35 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.’’
Consequently, Respondent was still under an obligation to
bargain with the Union when it, through its agents, ap-
proached Morgan and unlawfully dealt directly with him and
thereby violated Section 8(a)(5) and (1) of the Act.
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, and has at all times since about
1974 been the representative for purposes of collective bar-
gaining of a majority of the employees in the appropriate
unit consisting of all mixer drivers (agitator and nonagitator),
building supply drivers (single axle and multiple axle), ware-
housemen, yardmen, batchmen (manual control) and owner
operators, but excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined in the
Act.
3. By conducting a poll among its employees in November
1988 concerning whether they desired to be represented by
the Union, and by failing to give advance notice to the
Union of the time and place the poll was conducted, Re-
spondent refused to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
4. By withdrawing recognition from the Union in Novem-
ber 1988, Respondent refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.
5. By dealing directly with an employee in derogation of
the employee’s bargaining representative with respect to the
employee’s benefits, including his retirement, and other
terms and conditions of employment in violation of Section
8(a)(1) and (5) of the Act.
The foregoing unfair labor practices affect commerce with-
in the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed unfair labor
practices, I shall order it to cease and to take affirmative ac-
tion designed to effectuate the policies of the Act. I shall rec-
ommend that the Respondent be ordered to recognize and, on
request, bargain with the Union as the bargaining representa-
tive of the employees in the appropriate unit and put in writ-
ing and sign any agreement reached on terms and conditions
of employment and to post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended34
ORDER
The Respondent, The Henry Bierce Co., Akron, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union as the exclusive
bargaining representative of all of the employees in the unit
described below by failing to provide the Union with reason-
able advance notice of the time and place of the poll of unit
employees taken for the purpose of determining their desire
for continued representation by the Union; by conducting an
unlawful poll for such purpose; by unlawfully withdrawing
recognition from the Union; and by dealing directly with an
employee over benefits, including his retirement, and other
terms and conditions of employment.
(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) Recognize and, on request, bargain collectively with
Chauffeurs, Teamsters, Warehousemen and Helpers, Local
Union No. 348 a/w International Brotherhood of Teamsters,
Warehousemen and Helpers of America, as the exclusive
bargaining representative of the employees in the following
appropriate bargaining unit and, if an understanding is
reached, embody such understanding in a signed agreement:
[A]ll mixer drivers (agitator and nonagitator), building
supply drivers (single axle and multiple axle), ware-
housemen, yardmen, batchman (manual control) and
owner operators, but excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
(b) Post at its Akron, Ohio facility, copies of the attached
notice marked ‘‘Appendix C.’’35 Copies of the notice, on
forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
I have called this meeting today in order to get your deci-
sion as to whether or not you want the Company to continue
to deal with the Teamsters, Chauffeurs and Helpers of Amer-
ica Union, Local No. 348, on matters pertaining to the terms
635HENRY BIERCE CO.
and conditions of your employment. As some of you may or
may not be aware, the last collective bargaining agreement
we executed with the Union expired on April 30, 1987, when
we received their notification in the mail that they desired to
terminate that contract, and engage in negotiations toward a
new agreement. Very little in terms of any negotiations to-
wards a successor bargaining agreement have happened thus
far, and indeed, it was only recently that the Union began
requesting that negotiations and the execution of a new bar-
gaining agreement take place. Many of you have expressed
and asked why the Company still gives recognition to the
Union since so few of you have indicated any interest in the
Union, and almost all of you are not on the union dues
check-off. The only reason the Company has recognized, and
continues to recognize the Union is because the law has re-
quired us to do so thus far. Now, with the last bargaining
agreement expiring over one and one-half years ago, and the
Union now pressing for us to sign and execute a new bar-
gaining agreement, you as an individual have the right to de-
cide for yourself now whether or not you want the Company
to continue to recognize the Union. That is our purpose in
being here today—to determine whether the Union continues
to represent a majority of our employees. If the Union fails
to poll the majority of the votes cast, the Company will no
longer recognize the Teamsters as your bargaining represent-
ative, nor engage in negotiations towards a successor bar-
gaining agreement. Of course, should the Union receive a
majority of the votes cast the Company must by law continue
to recognize the Union as your bargaining agent, and bargain
in good faith towards a new agreement.
In order to make sure that everyone’s rights are protected
we are going to let each of you vote in a secret ballot. I have
asked llllllllll to come here today to handle
the election and to count the ballots in your presence. There
will be no supervisors or representatives of management
present when you vote on this important matter. We ask that
you, one by one, go into the next room, fill out one of the
ballots, and drop it in the ballot box. Please do not put your
name or any other markings on the ballot other than your
vote.
Before the voting begins, by law I am required to inform
you of a few matters. First, the purpose of this poll is solely
to determine the truth of the Union’s claim to continued ma-
jority representation of you. The actions and comments from
some of you have led us to believe that you do not desire
to be represented by this Union. Thus, this poll is being un-
dertaken solely to ascertain whether the Union demanding
recognition, the Teamsters, actually represents a majority of
you. Second, you must understand that absolutely no action
will be taken against any of you as a result of how you vote,
or how this election turns out. This is your election and you
have the legal right to vote however you please. This Com-
pany will not take any reprisals or retaliations due to the
manner in which any of you vote, or in which this poll ulti-
mately turns out. Next, this will be a secret ballot election.
No one, not even your co-workers or supervisors, will ever
know how you voted unless you voluntarily tell them.
I thank you for your time, and attention. I apologize for
having to read this little introduction, but it was necessary
in view of the fact that the law on this area is a little bit
complicated and confusing. Remember, please vote one at a
time in the separate room, and mark the ballots only as
‘‘Yes’’ or ‘‘No.’’
APPENDIX B
January 19, 1989
Ms. Christine S. Hoffer
Field Attorney
The National Labor Relations Board
Region 8
1240 East Ninth Street
Room 1695
Cleveland, OH 44119-2086
Re: The Henry Bierce Company
[Case No. 8–CA–21471]
Dear Ms. Hoffer:
The following shall serve as the position statement of The
Henry Bierce Company (‘‘the Company’’ or ‘‘Respondent’’)
in the above-referenced matter. When one reaches right to
the heart of the dispute in this case, it seems inconceivable
that Local 348 of the International Brotherhood of Teamsters,
Chauffeurs Warehousemen and Helpers of America (‘‘the
Union’’) could seriously contend that a collective bargaining
agreement was reached with the Company where absolutely
no terms or conditions of that ‘‘contract’’ have been adhered
to by either party for almost twenty full months prior to the
filing of the instant unfair labor practice charge. Setting aside
the readily apparent issue relating to the untimeliness of the
charge, no reasonable administrative body could possibly
conclude a ‘‘meeting of the minds’’ was ever struck between
the parties, at least with respect to all material terms and
conditions of employment. Rather, the Union’s unfair labor
practice charge seems to be more of a futile attempt to force
representation of a bargaining unit which has clearly, and
unmistakenly rejected it as their statutory, bargaining rep-
resentative. For the reasons expressed below, Respondent re-
spectfully requests that the charge be dismissed in its en-
tirety, with prejudice.
STATEMENT OF FACTS.
Respondent runs a general hardware operation which also
serves as a building material sales and distribution point. For
a number of years, its yardmen and building material drivers
have been represented for purposes of collective bargaining
by the Union. Also, for a number of years, Respondent was
a member of a multi-employer bargaining group consisting
of all local concrete haulers, but broke away from the multi-
employer unit prior to negotiations for its May 1, 1984 bar-
gaining agreement.
Collective negotiations aimed at the May 1, 1984–April
30, 1987 contract were handled by Mr. Robert DeStefano for
the Union, and Mr. David W. Bierce, for Respondent, al-
though it was clearly expressed that any tentative agreement
reached by the parties was subject to final approval by the
president and owner of the Company, Mr. Lou Bierce. The
parties were eventually able to completely agree on all mate-
rial terms and conditions of employment relating to the
1984–87 bargaining agreement, which was then reduced to
writing and signed and executed by Mr. DeStefano and Mr.
David Bierce.
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent cannot factually state precisely why the Union vir-
tually abandoned negotiations at this point but can certainly specu-
late given its knowledge of events concerning a local concrete,
ready-mix operation, The Botzum Bros. Botzum, which not
incoincidently is also represented by Local 348 was engaged in a bit-
ter strike with the Union beginning in April, 1987, and that dispute
carried over throughout much of 1988 when the Company was even-
tually sold to a purchaser, South Central Ready Mix. South Central
hired replacements who sought representation of a different union,
the operating engineers. The Union maintained picket lines virtually
throughout the entire time period of 1987 and leading into 1988, in-
cluding having to make a number of county court appearances relat-
ing to injunctions and violations of restraining orders with respect
to mass, violent picketing. No doubt, Mr. DeStefano’s interests were
turned to Botzum throughout this time since it was a much bigger
fish to fry than Respondent who had, at most, seven bargaining unit
members.
In anticipation of negotiations aimed at a new collective
bargaining agreement, and in accordance with the notice of
termination provisions contained in the 1984–87 contract, the
Company on February 16, 1987, served notice that it desired
to terminate the existing contract upon its expiration, and ne-
gotiate towards a successor bargaining agreement. Similarly,
the Union on February 23, 1987, served its official notice to
terminate the labor agreement as of April 30, 1987, and en-
gage in collective negotiations towards a new bargaining
agreement.
The first bargaining session between the parties occurred
on or about April 15, 1987, wherein Mr. David Bierce met
for a brief period of time with Robert DeStefano at the
Union offices. Therein, the Union presented its initial written
proposal which called for a $1.00 increase in hourly wages
of all unit employees each of the anniversary years of the
new bargaining agreement, and proposed a provision for jury
duty pay. The Company, for its part, presented the Union
with the Materialmen’s Association collective bargaining
agreement for Cuyahoga County which had recently been ne-
gotiated and signed. The Materialmen’s bargaining agreement
contained a number of concessions, and Respondent indi-
cated that it was opposed to annual, hourly wage increases
where other unions in the area were negotiating give-backs.
While Mr. DeStefano asserted that the negotiations con-
cerned two separate work areas, the parties departed with a
firm disagreement regarding the wages to be incorporated in
the new agreement. Mr. David Bierce, however, agreed to
take the Union’s initial written proposal back to Mr. Lou
Bierce for consideration and input. Not surprisingly, Mr. Lou
Bierce was firmly opposed to granting of annual wage in-
creases given the Cuyahoga County Materialmen’s contract.
No further negotiations or discussions occurred between
the parties until on or about April 24, 1987, when again Mr.
David Bierce met at the Union hall with Mr. DeStefano. This
time, the Union presented an oral proposal again calling for
annual hourly wage increases of .63, .60 and .60 throughout
the term of the proposed successor bargaining agreement.
The Union also for the proposed that increases to health and
welfare premiums be capped at 10% per year, and that
pension/retirement increases be granted from $65.00 per
week per employee to $69.00 per week per employee. Fi-
nally, the union indicated that several benefit increases oc-
curred with respect to its health and welfare program, al-
though they clearly desired the Company to maintain that
plan. Again, the Company’s response was that annual wage
increases would be entirely unacceptable given the existing
Materialmen’s contract. How was it the Union could be in-
sisting on annual hourly wage increases when the Cuyahoga
County Materialmen successfully bargained for substantial
decreases? Nevertheless, Mr. David Bierce informed Mr.
DeStefano that he would take the Union’s proposal back to
Mr. Lou Bierce for consideration and discussion, and get
back to him at a later date.
On or about April 27, 1987, after speaking with Mr. Lou
Bierce regarding alternatives to annual wage increases, Mr.
David Bierce again met with Mr. DeStefano at the Union
hall and presented an alternative solution to the wage issue.
Mr. David Bierce proposed that instead of an annual hourly
wage increase, the bargaining unit employees receive lump-
sum annual increases of $400.00, $400.00, $400.00 payable
each May 1 throughout the term of the agreement. Mr. David
Bierce also proposed that if the Union were to insist on an-
nual, hourly wage increases, the Company would not accede
to any increases in excess of .30, .25, and .25 throughout the
term of any successor agreement. Mr. DeStefano then indi-
cated that he would consider the lump-sum proposal, as well
as the Company’s alternative hourly wage increase proposal,
and get back to the Company with an answer. Unfortunately,
the Union or its representatives never returned any phone
calls or indeed attempted to minimally meet in person with
Company representatives from April 27, 1987 until on or
about July 1, 1988 wherein Mr. David Bierce received a tele-
phone message from Mr. DeStefano indicating he desired to
meet with him.1 Mr. Bierce informed Mr. DeStefano that due
to other previous commitments, a meeting was not possible
on that date with respect to possible, continued negotiations.
Again, no correspondence was received from the Union until
on or about August 25, 1988 when again Mr. David Bierce
received a phone call from Mr. DeStefano. Mr. Bierce was
out at that time, and upon returning the phone call to Mr.
DeStefano, was informed that Mr. DeStefano was out.
Finally, at sometime after August 25, 1988, Mr. DeStefano
appeared in person at The Henry Bierce Company with a
proposed, written collective bargaining agreement, and asked
that Company representatives execute it. Mr. David Bierce
refused to sign the contract indicating that it had been over
a year and one-half since the parties last spoke, and he need-
ed to find out just exactly what the Union had included in
the proposed written agreement. Moreover, Mr. Bierce was
concerned about the effective date of application of the col-
lective bargaining agreement, since the parties were already
well into the second year of a three year ‘‘contract,’’ and had
not been applying that ‘‘contract’’ to a single bargaining unit
person. Finally, based upon a very clear and unequivocal in-
dication from bargaining unit personnel, Mr. Bierce had seri-
ous doubts as to the Union’s continued status as bargaining
representative for the majority of the employees of the Com-
pany.
In November 1988, with expressions of employee dis-
satisfaction and union rejection on the increase, Respondent
called together its bargaining unit personnel, informed them
that the Union had requested to re-commence negotiations
towards a new bargaining agreement, and that given their ex-
pressions of dissatisfaction, it did not believe they continued
to represent a majority of the workforce. As such, Respond-
ent arranged to conduct a poll of its employees via secret
ballot to determine whether, in fact, the Union continued to
637HENRY BIERCE CO.
represent a majority of employees. All bargaining unit em-
ployees voted in the poll, and the results were six against the
Union, and one person voting for continued representation.
Following the results of the poll, Respondent refused to meet
and continue to negotiate with the Union due to the clear and
unequivocal exhibited lack of majority support amongst the
workforce.
LEGAL ARGUMENT.
A. There Was No ‘‘Meeting of the Minds’’ With Respect
To All Material Issues Of The Proposed Successor
Bargaining Agreement.
It is now well-settled that ‘‘when an oral agreement is
reached as to the terms of a collective-bargaining contract,
each party is obligated, at the request of the other, to execute
that contract when reduced to writing, and failure or refusal
to do so constitutes an unfair labor practice.’’ Oil Chemical
& Atomic Workers International Union (Capital Packaging
Co.), 212 NLRB 98, 108 (1974). it is also axiomatic, how-
ever, that in determining whether a collective bargaining
agreement exists, the Board must find a ‘‘meeting of the
minds’’ as to all material, substantive terms and conditions
of employment. Lithochrome Corp., 276 NLRB 136, n.1
(1985). Any material terms or conditions missing as a result
of the parties’ failure to agree simply cannot be supplied by
the Board or an administrative law judge. Interprint Co., 273
NLRB 1863 (1985). Without question, a ‘‘meeting of the
minds’’ with respect to wages is a material condition of em-
ployment without which no collective bargaining agreement
can be found to exist. See Liberty Pavillion Nursing Home,
259 NLRB 1249 (1982) (although parties agree to all sub-
stantive terms of contract, wages was made subject to Board
approval and thus condition precedent to formation of con-
tract). Likewise, the commencement, or effective date of a
proposed agreement is an essential, substantive term. Mer-
cedes-Benz of North America, 258 NLRB 803 (1981).
Not surprisingly, any analysis into whether the parties ar-
rived at a ‘‘meeting of the minds’’ with respect to material
issues in a contract frequently turns on the credibility regard-
ing negotiations. However, the Board had not hesitated to
turn to the actions of the parties in determining whether, in
fact, an agreement had ever been reached. See Torrenton
Construction Co., Inc., 235 NLRB 1540 (1978). For if par-
ties are abiding by the terms and conditions contained in the
asserted contract, and more importantly, those terms and con-
ditions of employment are changed from the previously ex-
isting collective contract, then an employer or union will be
hard pressed to legitimately assert there was never an agree-
ment reached. Id. The corollary of this position is also nec-
essarily true, for when the parties act as if no contract ex-
isted, for particularly a long period of time, then the logical
conclusion is that, indeed, no agreement was ever reached.
Here, both the Union and Company, despite good faith ne-
gotiations and bargaining, had a legitimate dispute with re-
spect to the wages of employees—a material condition prece-
dent to contract formation. The Union, for its part, was in-
sisting on an hourly wage increase throughout all anniversary
years of the proposed successor bargaining agreement. The
Company, opposed such an increase, particularly given re-
cent bargaining which had taken place in the Cuyahoga
County area with respect to materialmen. As such, it pro-
posed a lump-sum payment each anniversary date of the suc-
cessor contract, and no hourly wage increase to employees.
In the alternative, the Company proposed that any hourly
wage increase sought or insisted by the Union be at a sub-
stantially lower lever than those last proposed. Although the
Union indicated it would consider the Company’s last pro-
posals, no subsequent bargaining or discussions took place
for some fourteen months.
There are two critical undisputed facts in this case which
undeniably lead to the conclusion that the Union and Com-
pany never reach an agreement with respect to a successor
bargaining agreement. First, not once from the April 30,
1987 contract expiration date up until the present date have
employees within the scope of the bargaining unit been pro-
vided any of the benefits of the written agreement recently
presented by the Union in August, 1988. Thus, the employ-
ees received no wage increases, whether hourly or as a lump-
sum benefit. Moreover, there were absolutely no grievances
filed, no attempted use of the grievance/arbitration procedure,
none of the premium increases in fringe benefits provided,
or any other factors indicating that a ‘‘contract’’ was in fact
in force. Secondly, the terms and conditions of employment
the employees were employed under by the previous collec-
tive bargaining agreement continued in place, without
change. Certainly, by the actions of the parties, there was no
meeting of the minds with respect to a new agreement.
This, of course, leaves open the question as to whether the
Union was free to accept one of the two alternative proposals
regarding wages made by Respondent back in April, 1987.
There is no question but that given the written contract pre-
sented for execution by the Union last August, they have
chosen to accept the wage increases along a ‘‘$400, $400,
$400’’ lump-sum manner. Nor is there any question but that
the Company never formally withdrew the two proposals it
issued back in April, 1987. In Lucas County Farm Bureau,
218 NLRB 1150 (1975), the Board examined whether a con-
tract had been formed, where during negotiations for a suc-
cessor bargaining agreement, the employer made a proposal
which was originally rejected by the Union membership, but
three months later accepted by the Union. Originally, the
Board overruled the decision of the administrative law judge,
and held that the Company’s proposal was outstanding since
it was never unequivocally withdrawn. Thus, notwithstanding
the union’s initial rejection, the proposal continued to lay on
the table and was therefore subject to acceptance. Nine
months after issuing its decision, the Board reconsidered it,
this time affirming the decision of the administrative law
judge. Here, the Board took the position that there was insuf-
ficient evidence to warrant a finding that the company’s May
1974 offer for a new contract remained open and could be
accepted by the union as late as August, 1974. Accordingly,
the Board found that the company did not violate § 8(a)(5)
of the Act by refusing to reduce to writing an ‘‘agreed
upon’’ collective bargaining contract. In effect, the Board has
held that notwithstanding an explicit withdrawal of a pro-
posal, where circumstances arise which would lead a party
to reasonably believe that an offer had been withdrawn, a
proposal in negotiations cannot be subsequently, and belat-
edly accepted. Respondent submits that a passage of some
fourteen months from the time it first proposed the two alter-
native methods for resolving the dispute regarding wages is
clearly enough time to put a party on reasonable notice that
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an offer has been, in effect, withdrawn. The Union simply
cannot go about its business and ignore the Company for
such a long period of time and then unabashedly seek to
choose one of the two alternatives presented to it fourteen
months earlier.
Because the parties never had a mutual understanding with
respect to wages of asserted bargaining unit employees, be-
cause the parties never, at any time, acted as if there had
been an agreement enforceable between them, and further be-
cause the Company’s April 1987 proposal was not subject to
acceptance in July, 1988, given the passage of time, Re-
spondent respectfully requests that the instant charge be dis-
missed in its entirely, with prejudice.
B. The Charge Is Barred By The Applicable Statue Of
Limitations.
The NLRA requires that a party wishing to contend that
a violation of the Act exists, pursue their right in a timely
fashion. To achieve its purpose of providing minimum pro-
tections in the labor relations field, and at the same time pre-
vent employers from having to defend themselves from stale,
outdated claims, Congress provided a relatively short six-
month limitations period with respect to unfair labor practice
charges. See 29 U.S.C. § 160(b). Where a § 8(a)(5) charge al-
leges that a party is continuing to refuse to execute an
‘‘agreed upon’’ bargaining contract, the Board has held that
the 10(b) statute of limitations begins to run where there has
been an unequivocal intention by one of the parties to repu-
diate the asserted contract.
In Island Typographers, Inc., 252 NLRB 9 (1980), the
Board examined whether a § 8(a)(5) refusal to execute a con-
tract violation was present where the asserted ‘‘agreement’’
was reached in October, 1976, but no unfair labor practice
charges were filed until December, 1978. Between the time
that an asserted contract was reached and the filing of the
charges, the employer was in substantial violation of the as-
serted collective-bargaining agreement’s provisions, and
failed to apply its provisions to a certain segment of its em-
ployees who would have clearly been covered under it. In re-
jecting the General Counsel’s argument that the Union had
no prior notice of the employer’s violations or, in the alter-
native, the employer’s actions constituted a continuing viola-
tion, the administrative law judge noted:
The record is clear that by the summer of 1977, the
union knew that new equipment had been introduced,
that new employees had been hired to operate the cold
type equipment, and that respondent was not applying
the contract to new employees and was clearly main-
taining its intention not to apply the existing contract
language in the future. There was nothing equivocal in
the Respondent’s dealing with the Union concerning
cold type employees. Although Respondent was negoti-
ating new provisions, these negotiations apparently
ceased sometime in the summer of 1977. Therefore, the
Union had notice for well over one year that no
progress was being made and no steps taken to bring
cold type employees within the contractually mandated
terms and conditions of employment. I conclude, there-
fore, that Respondent’s actions took place outside the
six-month period preceding the date of the first charge
herein . . . .
Id. at 14–15.
Thus, even assuming, arguendo, an ‘‘agreement’’ was ever
reached between the Union and the Company as to a suc-
cessor bargaining agreement, the Company’s actions in fail-
ing to adhere to any of the contract’s provisions for some
nineteen months represented an unequivocal, total repudiation
of the asserted contract occurring well outside the § 10(b)
limitations period. Thus, the present charge is clearly time-
barred.
C. The Union Lacks Majority Support.
Section 8(a)(5), of course, makes it unfair labor practice
for an employer ‘‘to refuse to bargaining collectively with
the representatives of its employees, subject to the provisions
of Section 9(a).’’ 29 U.S.C. § 158(a)(5) (emphasis added).
Section 9(a), in turn, requires a representative designated or
selected for the purpose of collective bargaining be chosen
by ‘‘a majority of the employees.’’ Hence, as an indispen-
sable pre-requisite to establishing a Section 8(a)(5) violation,
the General Counsel must prove the representative does, in
fact, represent a ‘‘majority of the employees.’’ Here, Re-
spondent has substantial, objective evidence of the loss of
union majority support prior to its continued negotiations to-
wards a successor bargaining agreement. There were fre-
quent, almost daily comments about lack of union representa-
tion, absolutely no meetings or discussions between the
Union and the Company for over fourteen months, and only
one of seven asserted bargaining unit members had exercised
a dues check-off provisions. Moreover, there was a substan-
tial turnover in the number of prior employees, and the new
workers at no time indicated any desire for unionization or
continued union support. Without question, then, the Com-
pany had objective evidence of loss of support of representa-
tion sufficient to confirm, through polling, whether in fact
the Union continued to represent a majority of its personnel.
In order to assure reliability, Respondent polled, in a non
coercive and procedurally fair atmosphere, its employees pur-
suant to the guidelines set forth in Struksness Construction
Company, 165 NLRB 1062 (1967). That is, the purpose of
the poll was to determine whether the Union enjoyed a con-
tinued majority support sufficient to require Respondent to
continue negotiations with the Union; that purpose was un-
equivocally communicated to the employees; all assurances
against reprisal were provided; the employees were polled by
secret ballot; and the polling was conducted in an uncoercive
place, free of any management representatives who may in-
duce or inhibit free voting. The results of the polling, of
course, confirmed the objective evidence that the Union had
lost majority support, as six of the seven potential bargaining
unit members no longer desired to be represented by the
Union. Since the indispensable § 8(a)(5) can be found to
exist.
Moreover, the Board has held that even assuming the par-
ties have reached an agreement on a successor bargaining
agreement, such an agreement, if unsigned, will not serve to
defeat employee dissatisfaction of union representation which
follows formation of the contract, but prior to its execution.
See Crothall Hospital Services, Inc., 270 NLRB 1420 (1984).
Thus, despite the fact the parties may agree in toto on the
terms and conditions of a bargaining agreement, such con-
tract or agreement will not bar a de-certification petition filed
prior to formal execution of the contract. Id. Although no
639HENRY BIERCE CO.
contract has ever been agreed to or reached in this case, even
if one were to accept the Union’s position, that one was, the
lack of execution coupled with the now firm evidence that
the Union no longer represents a majority of the employees
precludes the issuance of a § 8(a)(5) complaint.
CONCLUSION.
For the foregoing reasons, Respondent respectfully re-
quests that the Union’s charges alleging violation of § 8(a)(5)
be dismissed in their entirety, with prejudice. If you have any
questions on the above, or desire any further information,
please do not hesitate to call at your earliest convenience.
Very truly yours,
Keith Pryatel
KLP/gg
APPENDIX C
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 refuse to bargain with the Chauffeurs,
Teamsters, Warehousemen and Helpers, Local Union No.
348 a/w International Brotherhood of Teamsters, Warehouse-
men and Helpers of America as the exclusive bargaining rep-
resentative of all of the employees in the unit described
below by failing to provide the Union with reasonable ad-
vance notice of the time and place of the poll of unit em-
ployees taken for the purpose of determining their desire for
continued representation by the Union; by conducting an un-
lawful poll for such purpose; by unlawfully withdrawing rec-
ognition from the Union; and by dealing directly with an em-
ployee over benefits, including his retirement, and other
terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain collectively
with Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No. 348 a/w International Brotherhood of
Teamsters, Warehousemen and Helpers of America, as the
exclusive bargaining representative of the employees in the
following appropriate bargaining unit and, if an under-
standing is reached, embody such understanding in a signed
agreement:
[A]ll mixer drivers (agitator and nonagitator), building
supply drivers (single axle and multiple axle), ware-
housemen, yardmen, batchman (manual control) and
owner operators, but excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
THE HENRY BIERCE CO.