OPINION OF THE COURT
Petitioner Furniture Rentors of America, Inc. (“FRA”) appeals from a National Labor Relations Board (“NLRB” or “the Board”) order holding that it violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5) (“NLRA” or “the Act”) by withdrawing recognition from its union without having reasonable grounds for doubting its majority status, and by failing to notify and bargain with the union before subcontracting out delivery services. Cross-petitioner NLRB seeks enforcement of its order. We will enforce the Board’s order only in part.
I. Background
Withdrawal of Recognition
Furniture Rentors of America, Inc. (“FRA”), a Delaware corporation, is a regional renter of residential and office furniture in Virginia, Maryland, and Delaware. The company negotiated its initial collective bargaining agreement (“CBA”) with International Brotherhood of Teamsters Union Local Nos. 639 and 730 (“Union”) on November 1, 1986. As drafted, the CBA was to expire on October 31, 1989; however, on October 21, 1987, a side-letter agreement was reached which increased wages and extended the CBA until December 31, 1989, and provided that the contract could be reopened “only to discuss wages.”
*1243 In October 1988, FRA leased a warehouse in Jessup, Maryland, implementing its decision to move its center of operations from Alexandria, Virginia to a point between Baltimore, Maryland and Washington, D.C., more centrally located within its market. FRA continued to operate from its Alexandria warehouse until late 1989 because its lease there did not expire until the summer of 1990 and its Jessup facility was being renovated. Due to the longer commute from northern Virginia to Jessup, Maryland, FRA lost several Washington area employees and hired new ones from Baltimore, including Calvin Wilson, who was hired as a new warehouse manager.
FRA and the Union began negotiating their next CBA in the autumn of 1989. Petitioner contends that by that time, fewer of FRA’s employees than ever before were Union members, as evidenced by dues check-off records. On October 6, 1989, a decertification petition was filed by Frederick Brown, one of the new employees who had been hired by warehouse manager Wilson. Prior to the filing of the petition, Brown had posted a notice in the Alexandria warehouse which asked employees to sign “for the Union” or “not for the Union.” Only six employees signed “for. the Union.” There were also discussions between warehouse manager Wilson and other employees regarding their lack of interest in Union representation and discontent over having to pay Union dues and initiation fees. At a December 7, 1989 bargaining session, FRA Vice-President James Senker (“Senker”) questioned the Union’s majority status. The Union representatives responded that they did enjoy majority support. On January 17,1990, Senker sent a letter to the Union withdrawing recognition based on his doubt that the Union represented a majority of FRA employees. The Union failed to respond. A January 20, 1990 bargaining session was cancelled, and the parties did not meet again.
Decision to Subcontract Delivery Services
Senker knew first-hand that FRA had experienced serious problems with employee theft and carelessness. In May and June of 1989, FRA investigated the theft of furniture by Union members at a loss to the company of $10,000. The investigation led to arrests and resignations of employees. Delivery service also was the cause of numerous customer complaints, and FRA experienced problems with furniture packing, delivery of damaged furniture, insurance claims and late deliveries. FRA delivery teams averaged three deliveries per day, compared to the industry standard of four or five deliveries per day. In August 1989, FRA fired three employees who raided a customer’s refrigerator while relaxing in his apartment during what was supposed to be a routine delivery.
In mid-February 1990, Senker accepted a proposal by Sullivan Services, a contractor who provides trucking services, to share delivery services on a trial basis. For approximately one week, Sullivan Services made deliveries using a single crew and its own truck. Senker gave the Sullivan Services crew the hardest jobs, monitored their performance, spoke daily with Sullivan Services’ President, Kent Sullivan, and visited job sites in order to talk with customers about the Sullivan Services crew’s work. Senker did not retain Sullivan Services beyond that trial period.
On February 27, 1990, Senker received a tip that several FRA employees planned to steal furniture early the next morning. With the assistance of the Howard County (Maryland) Police, Senker apprehended a driver, a helper and a supervisor attempting to load furniture onto a delivery truck. The next day, without, notifying the Union, Senker retained Sullivan Services to perform FRA’s delivery work on an exclusive basis. FRA then terminated four drivers and three helpers, but continued to employ its warehouse-men, several of whom were Union supporters. By using Sullivan Services to perform delivery services, FRA’s delivery costs increased from $160 to $210 per day.
Union member Alvin Jones, Jr. and the Union filed charges against FRA on March 2, 1990 and March 12, 1990 respectively. On March 28, 1991, the NLRB issued Complaints against FRA in 5 — CA—20933 and 5 — CA—21038. These Complaints, which were subsequently consolidated for hearing, *1244 alleged that FRA committed unfair labor practices when it posted a petition requesting that its employees indicate their union sympathies, unlawfully withdrew recognition from the Union, and subcontracted its delivery work to Sullivan Services' without first notifying and bargaining with the Union.
An Administrative Law Judge (“ALJ”) held a hearing from October 1-3, 1991. On May 13, 1992, the ALJ issued a decision that FRA had committed unfair labor practices in violation of Section 8(a)(1) and (5) of the NLRA when it interrogated employees about their union sympathies and withdrew recognition of the Union on January 17, 1990. The ALJ, however, relying upon the NLRB’s decision in
Dubuque Packing Company, Inc.,
On May 28,1993, the Board issued a Decision and Order reversing the third part of the ALJ’s decision, holding that FRA violated Sections 8(a)(1) and (5) of the Act by failing to provide, notice and to bargain with the Union concerning its decisions to subcontract delivery work and to lay off seven employees as a result of that decision. The Board also held that FRA violated Section 8(a)(1) through statements made by warehouse manager Wilson to new employee Alvin Jones, Jr. threatening to fire Wilson because of his association with the Union. FRA petitioned for review of the Board’s order and the Board cross-petitioned for enforcement of its order.
II. Discussion
Withdrawal of Recognition
FRA argues that its proper withdrawal of recognition from the Union ended any duty ,to bargain over its decision to subcontract delivery services. Whether petitioner properly withdrew recognition from the Union turns on the factual question whether FRA had reasonable grounds for doubting the Union’s continued majority status. 1
FRA avers that its move from Alexandria, Virginia to Jessup, Maryland caused considerable employee turnover, and by January 17, 1990, the date Senker withdrew recognition, only six of 17 employees, all transferees, were members of the Union. No newly hired employee had executed a dues checkoff or expressed an interest in union representation. Therefore, FRA argues, the composition and attitude of its workforce had changed, supporting Senker’s good faith doubt about continued majority status. Employee turnover alone, however, is not sufficient to establish good-faith doubt,
NLRB v. Oil Capital Elec., Inc.,
Petitioner’s evidence of FRA employees’ dissatisfaction with Union representation consists of the low number of employees who executed the dues checkoff and the petition signed by a majority of employees stating that they were “not for the Union.”
*1245
Instantly, only six of 17 or 20-26
2
employees had executed dues checkoffs at the time petitioner withdrew recognition. A high number of resignations or a low number of dues checkoff authorizations will not without more justify withdrawal of recognition, although they may be considered when assessing majority support for a union.
Bickerstaff Clay Prods. Co. v. NLRB,
Substantial evidence supports the Board’s determination that FRA’s petition was tainted because it was posted by FRA, albeit indirectly, rather than spontaneously by the employees themselves. An employer may only conduct polls to determine whether a union’s majority status still exists if it “possesses substantial, objective evidence to establish that it reasonably doubts the union’s majority status
before
conducting the poll.”
Hajoca Corp. v. NLRB,
Management Rights Clause
The employer argues that the original CBA contained a broad management rights clause giving FRA the absolute right to subcontract work at any time until December 31, 1989, the date of contract expiration. Furthermore, FRA avers, when the CBA was reopened in October 1987, the parties to the contract agreed that renegotiations on December 31, 1989 would be limited to the discussion of wages only, and that all other contract terms were to continue beyond the expiration date. Therefore, petitioner concludes, FRA’s contractual right to subcontract continued beyond December 31, 1989, the Union having waived its right to bargain over subcontracting.
We conclude that when the CBA was reopened in October 1987, the . Union did not waive its right to bargain after December 31, 1989 over every contract term except wages. The 1987 reopener language states in pertinent part that, “The contract shall ... remain in effect through December 31, 1989, but the parties will agree to meet to reopen the contract to discuss only wages.” This language can most sensibly be read to mean that prior to the expiration of the contract on December 31, 1989, only wages could be changed, but when the contract expired, all terms were subject to bargaining. Although it is possible to derive FRA’s construction from the reopener language, we decline to make the inference, for waivers of statutorily protected rights must be clearly and unmistakably articulated.
Metropolitan Edison Co. v. NLRB,
Statutory Duty to Bargain
Finally, FRA argues that the Board employed the wrong legal standard and thus erred when it determined that FRA’s deci
*1246
sion to subcontract its delivery work was a mandatory subject of bargaining. Sections 8(a)(5) and 8(d) of the Act, 29 U.S.C. §§ 158(a)(5) and 158(d), require employers to bargain in good faith with employee representatives about,
inter alia,
“wages, hours, and other terms and conditions of employment.” Relying on its recent decision in
Torrington Industries,
Subcontracting may be a mandatory subject of collective bargaining under the Act, but it is not necessarily so. In
Fibreboard Paper Prods. Corp. v. NLRB,
The Supreme Court further defined the requirements for mandatory bargaining over subcontracting when it held, in
First National Maintenance Corp. v. NLRB,
The First National balancing test was not conceptually novel, and the Court noted that the Fibreboard Court performed the same analysis “implicitly.” Id. The Court in First National reached the opposite result from Fibreboard because the employer’s decision to close part of its business was not driven by labor costs. The Court concluded that because the union had no control over the factors motivating the company’s decision to subcontract, collective bargaining would have been futile and was therefore not required.
In
Otis Elevator Co.,
In the matter
sub judice,
the ALJ applied the
Dubuque
burden-shifting test,
3
concluding that because labor costs did not prompt FRA to subcontract, its decision was not a subject of mandatory bargaining. App. 684-86. Within days after the ALJ issued his opinion, however, the Board issued its decision in
Torrington Industries,
In
Torrington,
the employer unilaterally replaced two union truck drivers with non-bargaining unit drivers and independent contractor haulers. The Board rejected the employer’s argument that its decision to replace the union truckers was entrepreneurial and did not turn on labor costs, holding that
Dubuque’s
burden-shifting analysis is limited to relocation decisions and does not apply to “other types of management decisions that affect employees.”
Torrington,
[W]hen the record shows that essentially [Fibreboard] subcontracting is involved, there is no need to apply any further tests in order to determine whether the decision is subject to the statutory duty to bargain. The Supreme Court has already determined that it is_
Id. (citation omitted). The Torrington Board did not reject outright the employer’s argument that Fibreboard could be distinguished because labor costs were not a factor in its decision; rather, it chose not to reach that issue, “because the [employer’s] reasons had nothing to do with a change in the ‘scope and direction’ of its business. Those reasons, thus, were not matters of core entrepreneurial concern and outside the scope of bargaining.” Id. (citation omitted). Unwilling to consider the specific facts of the case, the Board simply determined that FRA had engaged in “Fibreboard subcontracting,” triggering the mandatory duty to bargain.
Inflexibly applied, the holding in
Torring-ton
is at odds with the principles of
Fibre-board
and
First National.
Those cases discussed the statutory duty to bargain as a means of obtaining, when appropriate, the benefits presumed to attend the collective bargaining process,
see Fibreboard,
The Board’s decision in
Torring-ton
to limit the scope of
Dubuque
to reloca-tions of unit work is essentially a policy choice “subject to limited judicial review.”
NLRB v. Local Union No. 103, Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers,
Under the
Torrington
standard, if an employer subcontracts some work to nonunion workers without changing the scope and direction of its enterprise, and the nonunion workers perform essentially the same work as the' bargaining unit workers did, the Board labels the employer’s action
“Fibreboard '
subcontracting” and requires bargaining. But the
Torrington
manner of examining the decision to subcontract only to see whether it is analogous to
Fibreboard’s
general factual framework is simplistic and, as this case demonstrates, potentially ham-handed.
4
The focus in determining whether a particular management decision requires bargaining under Section 8(a)(5) is not the employer’s decision to subcontract, but whether “requiring bargaining over this sort of decision will advance the neutral purposes of the Act.”
First National,
Fibreboard
itself counsels against strict categorization according to the form of subcontracting. The
Fibreboard
Court expressly noted that the employer’s decision to subcontract turned on its desire to lower “the high cost of its maintenance operation,” which, independent contractors had promised, could be reduced by eliminating employees and benefits.
Fibreboard,
In this case, the ALJ found that,
From the time [FRA Vice-President] James Senker started with [petitioner] he noted that [petitioner] had a serious employee theft problem. Indeed two employees, Payton Finch and Terry Walls, were arrested in mid-1989 for larceny from [petitioner]. In addition, service was, in Senker’s opinion, horrible and Senker demonstrated part of the basis for this conclusion by producing correspondence from three customers, TravCorps, NV Property and North Park Ave., complaining about Respondent’s services. In August 1989 three employees were fired for misconduct during a delivery, i.e., they “hung out” in the customer’s residence and ate food which they took from the customer’s refrigerator. Senker also observed that because of careless handling of furniture and improper padding of furniture by [petitioner’s] delivery crew employees that too much of the furniture [petitioner] rented was being damaged. It was also Senker’s opinion that [petitioner’s] delivery crews were unreasonably slow in doing their job since they were making an average of three and one-half stops per day rather than four or five which was the industry standard.
The straw that broke the camel’s back and motivated Senker to subcontract all the delivery work began in late February 1990 when Senker received information from a confidential informant that some of his employees were planning to steal some furniture....
The cost of delivery services by Sullivan Services was more expensive than the cost to [petitioner] of doing the delivery work with its own employees, i.e., $160 per day for one of [petitioner’s] crews versus $210 per day for a Sullivan Services Crew_
Labor costs were not a factor in the subcontracting decision. The decision was made because of [FRA Vice-President] Senker’s dissatisfaction with the delivery crews, e.g., lower than expected productivity, unacceptable damage to furniture, complaints by customers, and thievery.
App. 685-86. The Board purported to leave these findings unchanged, App. 691, n. 1,- but stated that because all of petitioner’s stated reasons for subcontracting delivery services “involved employee conduct, an issue which would be of concern to the Union as well as to [petitioner] and an issue over which the Union was in a strong position to take action,” App. 692, petitioner’s decision to subcontract delivery services was subject to mandatory bargaining.
The ALJ’s phrase “lower than expected productivity,” standing alone, rings of labor costs, a subject suitable for resolution through collective, bargaining. However, the ALJ’s decision read as a whole indicates that Senker’s principal reason for turning to Sullivan Services was his exasperation over the irresponsibility and dishonesty of some of his delivery employees, not labor costs as tradi--tionally understood. Petitioner argues that labor costs could not possibly have been the basis of its decision since it paid fifty dollars per day. more to contract out its delivery services than it paid to employ its own delivery crews. The Board responds by characterizing even “employee work habits and conduct” as “labor costs in the broad sense of the term” because they “affect the employer’s costs and thus the profitability of the business.” NLRB Brief at 38-39.
Anything employees do, or do not do, that ultimately bears on their employers’ economic condition may be designated a “labor cost” in some broad sense, but there is no reason to so expand the term beyond its ordinary meaning as used in
Fibreboard
and
First National,
which contemplates subjects such as wages, fringe benefits, overtime payments, size of workforce and production goals. As the United States Court of Appeals for the Fourth Circuit recognized in
Arrow Automotive Indus., Inc. v. NLRB,
Similarly, that an employer’s decision is based on factors “involv[ing] employee conduct” does not necessarily imply that labor costs or other concerns amenable to resolution through collective bargaining are central to the decision. The factors that principally motivated FRA Vice-President Senker to contract out delivery services were, as found by the ALJ and as supported by the record, FRA’s continuing problems with delivery workers’ carelessness, misconduct, untrust-worthiness and thievery. The Board suggests that “education,” or the implementation of “an effective anti-theft program” would serve the same purpose as the wage and benefit concessions discussed in Fibreboard and First National. We do not read Fibre-board and First National as requiring employers to automatically bargain with employee representatives over the-inviolability of their own property, without regard to the benefit likely to be obtained from that process. Nor are we able to perceive any likelihood of benefit to be derived from subjecting the problem of employee thievery to collective bargaining.
Our purpose in making these observations is not to substitute our judgment for that of the Board’s on the possible benefits to be derived from collective bargaining in a situation like the one in this case. We intend only to convey our concern that the Board has not exercised the judgment that Fibreboard and First National require of it. We believe the Board needs to acknowledge that FRA’s decision to subcontract its delivery work was primarily based on factors arguably not as amenable to collective bargaining as direct labor costs. The Board then needs to make a judgment about the likelihood and degree of benefit, if any, to be derived from collective bargaining in a situation of this kind and to weigh that benefit against the employer’s considerable interest in taking prompt action.
III. Conclusion
We will grant the Board’s petition to enforce with respect to those provisions of its order designed to remedy the unfair labor practices related to FRA’s withdrawal of recognition. We will deny its petition in all other respects. We will grant FRA’s petition for review and remand for further proceedings on the charge that FRA violated sections 8(a)(1) and (5) of the Act by failing to provide notice and bargain with the Union concerning its decisions to subcontract its delivery work and lay off employees.
Notes
. After one year beyond the date the NLRB certifies a' union as the collective-bargaining representative of employees, the presumption of the union’s continued majority status becomes rebut-table; the employer may withdraw recognition if it can show that the union has lost majority support or that it has a good faith, reasonable doubt of the union’s continued majority status.
NLRB v. Wallkill Valley Gen. Hosp.,
. Petitioner's brief is not consistent with respect to the number of employees working for FRA on January 17, 1990. Compare Petitioner’s Brief at 7 (20-26 employees) with Petitioner’s Brief at 36 (17 employees).
. Under the test announced by the Board in
Dubuque,
the General Counsel must initially establish a prima facie case for mandatory bargaining by showing that the employer's decision involved a transfer of unit work unaccompanied by a basic change in the nature of its operation. Then, the burden of production shifts to the employer, who can rebut the prima facie case by showing that its decision involved a change in the direction of the business, or by showing “(1) that labor costs (direct and/or indirect) were not a factor in the decision or (2) that even if labor costs were a factor in the decision, .the union could not have offered labor cost concessions that could have changed the employer's decision. ...”
Dubuque,
. Although conceptually simple, the Torrington approach is not well-fitted to the statutory duty to bargain, which, after all, is not simply a theoretical catchphrase, but implies real give and take negotiations. If during a bargaining session an employer were to broach the subject of contracting work out (whether or not in- a manner similar to what the Board calls "Fibreboard subcontracting”), the negotiations would necessarily turn to the employer's reasons for wanting to contract the work out. The contracting out decision itself, regardless of what form it might take, is just a response to some underlying cost or other challenge that makes doing the work with bargaining unit employees relatively less attractive. Therefore, focusing on the form that the employer’s decision takes (does it fit into the Fibreboard pigeonhole?) is unhelpful, for the form of subcontracting bears little on the bargaining process encouraged by the Act.