Advanced Stretchforming International

National Labor Relations Board - Board Decisions

Dec 7, 2001

336 N.L.R.B. 1153 (N.L.R.B. 2001)

ADVANCED STRETCHFORMING INTERNATIONAL 1153
Advanced Stretchforming International, Inc. and In-
ternational Union, United Automobile Aero-
space and Agricultural Implement Workers of
America (UAW), Amalgamated Local Union No.
509, AFL–CIO. Case 21–CA–29104
December 7, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On April 25, 1997, the National Labor Relations Board
issued a Decision and Order1 in this proceeding finding
that Respondent Advanced Stretchforming International,
Inc., as successor employer, violated Section 8(a)(1) and
(5) of the National Labor Relations Act by, among other
things, unilaterally changing terms and conditions of
employment set forth in the collective-bargaining con-
tract between the Union and a predecessor employer.2
To remedy these violations, the Board ordered that the
Respondent restore the status quo by “rescind(ing) any
changes in employees’ terms and conditions of employ-
ment unilaterally effectuated and to make the employees
whole by remitting all wages and benefits that would
have been paid absent [its] unlawful conduct, until [it]
negotiates in good faith with the union to agreement or to
impasse.” 323 NLRB at 531.
Thereafter, the Board petitioned for enforcement of its
Order with the United States Court of Appeals for the
Ninth Circuit. On November 22, 2000, the court issued
its decision enforcing the Board’s Order, except for the
backpay award.3 The court noted that the “Board applied
the presumption that an award of backpay and benefits
under the repudiated bargaining agreement restores the
status quo ante, but did not consider whether [the Re-
spondent] had rebutted that presumption with evidence
that it would have bargained to an impasse and imposed
less favorable terms.” 233 F.3d at 1182. Concluding
that the record was not fully developed under this “cor-
rect legal standard,” the court remanded the case to per-
mit the Respondent and the Union to “present evidence
on whether [the Respondent] and the Union would have
bargained to impasse and imposed terms, even had the
[Respondent] honored its obligation to bargain with the
Union.” Id. at 1183.

1 323 NLRB 529.
2 The Board found that the Respondent, having unlawfully stated to
employees in the predecessor’s work force that there would be no union
at the new company, had forfeited the customary right of a successor
employer to set initial terms of employment without first bargaining
with the Union. 323 NLRB at 530–531.
3 NLRB v. Advanced Stretchforming International, 233 F.3d 1176,
cert. denied 122 S.Ct 341 (2001). The court’s decision vacated original
opinions filed on April 4, 2000, and reported at 208 F.3d 801. The
Respondent has requested a stay of further Board proceedings in this
case pending the Supreme Court’s decision whether to grant a writ of
certiorari. In light of the Supreme Court’s denial of certiorari, the
request is now moot.
On May 4, 2001, the Board advised the parties that it
had accepted the court’s remand and that statements of
position could be filed with respect to the issues raised
by the remand. The General Counsel, the Respondent,
and the Union filed position statements.
For the reasons stated in prior cases addressing similar
judicial opinions on the backpay issue raised here,4 we
respectfully continue to adhere to the view that in cir-
cumstances similar to those presented here,

[I]t is appropriate to calculate backpay on the basis of
the contractual rates paid by the predecessor (in other
words, the existing terms and conditions of employ-
ment) because the successor’s unlawful failure to rec-
ognize and bargain with the Union has left us without
an adequate or reasonable alternative basis for calculat-
ing what rates would have been arrived at through bar-
gaining.5

We accept, however, on remand, the court’s decision
as the law of the case. Accordingly, this case will be
remanded for reopening of the record and further hearing
before an administrative law judge for the limited pur-
pose of taking evidence on the extent of the Respon-
dent’s backpay liability, i.e., “whether [the Respondent]
would have bargained to impasse and imposed terms,
even had [the Respondent] honored its obligation to bar-
gain with the Union.” 233 F.3d at 1183.6 As in Armco,

a remand hearing is necessary to determine whether
[the Respondent] would have agreed to the monetary
provisions of the predecessor employer’s collective-
bargaining agreement with [the Union]; whether a
good-faith impasse in negotiations would have been
reached as of a certain date; and whether [the Respon-
dent] would have lawfully implemented its own mone-
4 See State Distributing Co., 282 NLRB 1048 (1987), responding to
the Ninth Circuit’s denial of enforcement in relevant part in Kallman v.
NLRB, 640 F.2d 1094 (1981), and Armco, Inc., 291 NLRB 1171
(1988), on remand from the Sixth Circuit pursuant to its decision in
Armco, Inc. v. NLRB, 832 F.2d 357 (1987).
5 State Distributing Co., 282 NLRB at 1049.
6 Chairman Hurtgen concludes that a successor employer is ordinar-
ily free to set its own terms and conditions of employment. NLRB v.
Burns Security Services, 406 U.S. 272 (1972). Further, in his view, the
Respondent’s 8(a)(1) statement did not forfeit that right. See Chairman
Hurtgen’s dissenting opinion in Pacific Custom Materials, 327 NLRB
75 (1998). Accordingly, he would not have required Respondent to
continue the predecessor’s terms and conditions of employment. How-
ever, he acquiesces in the law of the case herein, and agrees with the
Board’s remand order.
336 NLRB No. 124
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
tary terms as of that date. Because it is uncertain
whether [the Respondent] would have agreed to the
monetary terms of the prior contract between [the
Union] and the predecessor employer, the burden of
proof must be placed on [the Respondent] to estab-
lish that it would not have agreed to the terms of the
prior contract, the date on which it would have bar-
gained to agreement, and the terms of the agreement
that would have been negotiated, or to establish the
date on which it would have bargained to good-faith
impasse and implemented its own monetary propos-
als. The Board has consistently held that such
uncertainties should be resolved against the party
whose unlawful acts created them.7

7 291 NLRB at 1173 (citation omitted).
ORDER
It is ordered that this proceeding is remanded to the
administrative law judge for reopening the record for
further hearing for the purpose of making specific factual
and legal findings concerning the extent of the Respon-
dent’s backpay liability. The administrative law judge
shall prepare a supplemental decision containing credi-
bility resolutions, findings, conclusions, and recommen-
dations as deemed necessary, consistent with this remand
Order. Following service of the supplemental decision
on the parties, the provisions of Section 102.46 of the
Board’s Rules and Regulations shall apply.