Alpha Associates

National Labor Relations Board - Board Decisions

May 31, 2005

344 N.L.R.B. 782 (N.L.R.B. 2005)

DECISION OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 95
782
Alpha Associates and Union of Needletrades, Indus-
trial & Textile Employees (Unite), AFL–CIO,
CLC. Cases 11–CA–19638 and 11–CA–19828
May 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Pursuant to charges filed by UNITE, AFL–CIO, CLC
(the Union) on September 6, 2002 (subsequently
amended on October 28, 2002, and March 12, 2003), and
January 29, 2003 (amended on March 12, 2003), the
General Counsel of the National Labor Relations Board
issued a consolidated complaint on March 31, 2003, al-
leging that the Respondent, Alpha Associates, violated
Section 8(a)(5) and (1) of the Act by (1) unilaterally lay-
ing off unit employees without notifying or bargaining
with the Union, (2) unilaterally granting a wage increase
to unit employees without notifying or bargaining with
the Union, and (3) failing and refusing to meet and bar-
gain with the Union since January 16, 2003. The Re-
spondent filed a timely answer admitting in part and de-
nying in part the allegations of the complaint.
On May 5, 2003, the General Counsel filed with the
Board a Motion for Summary Judgment. On May 8,
2003, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. On June 3, 2003,1 in re-
sponse to the Notice to Show Cause, the Respondent
filed an opposition to the General Counsel’s Motion for
Summary Judgment, to which the General Counsel sub-
sequently filed a response. Also on June 3, the Union
filed a memorandum in support of the General Counsel’s
motion.
Ruling on Motion for Summary Judgment
The complaint alleges that the Respondent, without
notifying the Union or affording it an opportunity to bar-
gain, laid off various unit employees beginning on or
about March 8, 2002, and, additionally, unilaterally
granted a wage increase on July 29, 2002. The complaint
further alleges that, since on or about January 16, 2003,
the Respondent has failed and refused to meet and bar-
gain with the Union. The Respondent admits having en-
gaged in all of the above-described conduct. Neverthe-
less, the Respondent asserts that it has not committed a
violation of the Act, as it has no obligation to bargain
with the Union. Specifically, the Respondent contends
principally that its earlier recognition of the Union was

1 The Board granted the Respondent’s successive requests for an ex-
tension of time to file an opposition to the General Counsel’s Motion
for Summary Judgment.
invalid, as the Union never demonstrated, or offered to
demonstrate, that it represented a majority of the unit
employees. The Respondent additionally alleges that the
recognized bargaining unit described in the complaint is
inappropriate.2
In agreement with the General Counsel, and for the
reasons expressed more fully below, we find that the
Respondent is precluded from challenging either the va-
lidity of its prior voluntary recognition of the Union or
the appropriateness of the recognized unit. Further, for
the reasons set forth below, we find that there are no fac-
tual issues warranting a hearing in this matter, and that
the Respondent’s affirmative defenses are inadequate to
defeat the Motion for Summary Judgment.3
A. Section 10(b) Precludes Respondent’s Challenge to
its Earlier Voluntary Recognition of the Union Based on
Alleged Lack of Majority Status at Time of Recognition
As the General Counsel accurately asserts, the Board
consistently has held that Section 10(b) of the Act pre-
cludes an employer from defending against a refusal-to-
bargain allegation on the basis that its initial recognition
of the union, occurring more than 6 months prior to the
filing of unfair labor practice charges raising the issue,
was invalid or unlawful. See Route 22 Honda, 337
NLRB 84, 85 (2001); Morse Shoe, 227 NLRB 391, 394
(1976), supplemented by 231 NLRB 13 (1977), enfd.
591 F.2d 542 (9th Cir. 1979); North Bros. Ford, 220
NLRB 1021, 1021 (1975).4 Further, whether or not the

2 Finally, as we discuss in greater detail below, the Respondent also
proffers defenses specific to each of the alleged unfair labor practices.
3 We additionally reject as without merit the Respondent’s conten-
tion that the General Counsel’s Motion for Summary Judgment was not
timely filed. Sec. 102.24(b) of the Board’s Rules and Regulations pro-
vides that summary judgment motions must be filed “no later than 28
days prior to the scheduled hearing” in a particular case. However, that
section additionally provides that, if the hearing is scheduled fewer than
28 days after the date for filing an answer to the complaint, the Motion
for Summary Judgment “shall be filed promptly.”
On March 31, 2003, the General Counsel both issued the consoli-
dated complaint in this proceeding and scheduled a hearing on the
complaint for May 19. The Respondent, having been granted two ex-
tensions of time, filed a timely answer to the complaint on April 30. As
a result of the extensions of time granted to the Respondent, the hearing
in this proceeding was scheduled fewer than 28 days after the date for
filing an answer to the complaint. Accordingly, pursuant to Sec.
102.24(b), the General Counsel was required to file his Motion for
Summary Judgment “promptly.” The General Counsel filed the Motion
for Summary Judgment on May 5, a mere 5 days after the Respondent
filed its answer. Under these circumstances, we reject the Respondent’s
contention that the General Counsel’s motion was untimely.
4 The Board’s policy in this regard is premised on the notion that, if
the time limitations prescribed by Sec. 10(b) foreclose a direct attack on
the validity of an employer’s recognition of a union—through the filing
of unfair labor practice charges alleging a violation of Sec. 8(a)(2) or
8(b)(1)(A)—an employer should not be permitted to attack that recog-
nition indirectly via a defense to an 8(a)(5) charge after the 6-month
ALPHA ASSOCIATES 783
recognized union had proffered evidence demonstrating
its majority status at the time of recognition is irrelevant.
The rule concerning nonconstruction industries is plain:
“If an employer voluntarily recognizes a union based
solely on that union’s assertion of majority status, with-
out verification, an employer is not free to repudiate the
contractual relationship that it has with the union outside
the 10(b) period, i.e., beyond the 6 months after initial
recognition, on the ground the union did not represent a
majority when the employer recognized the union.”
Oklahoma Installation Co., 325 NLRB 741, 742 (1998),
enf. denied on other grounds 219 F.3d 1160 (10th Cir.
2000);5 see Moisi & Son Trucking, 197 NLRB 198
(1972). Accordingly, as the Respondent’s voluntary rec-
ognition of the Union in this case occurred more than 6
months prior to the Union’s filing of the first unfair labor
practice charge alleging the Respondent’s refusal to bar-
gain,6 we conclude that Section 10(b) bars the Respon-
dent’s challenge to its earlier recognition of the Union
based on the absence of proof of the Union’s majority
status.
B. Respondent is Estopped from Challenging its
Earlier Voluntary Recognition of the Union
In further agreement with the General Counsel, we
conclude that the Respondent additionally is estopped
from withdrawing recognition from the Union based on
either an absence of proof of majority status at the time
of recognition or the alleged inappropriateness of the
recognized unit.7 The principle of equitable estoppel is
premised on the notion that a party that obtains a benefit
by engaging in conduct that causes a second party to rely
on “the truth of certain facts” should not be permitted to
later controvert those facts to the prejudice of the second
party. See R.P.C., Inc., 311 NLRB 232 (1993). The
Board has identified the requisite elements of estoppel as

period has elapsed. See Sewell-Allen Big Star, 294 NLRB 312, 313
(1989), enfd. 943 F.2d 52 (6th Cir. 1991), cert. denied 504 U.S. 909
(1992).
5 As the issue is not relevant to this proceeding, Chairman Battista
and Member Schaumber do not pass on the conclusions reached by the
Board in Oklahoma Installation regarding the type or extent of evi-
dence required to establish a Sec. 9(a) relationship in the construction
industry.
6 The Respondent voluntarily recognized the Union as of August 14,
2001; on September 6, 2002, the Union filed the first of the 8(a)(5)
charges that serve as the basis for the consolidated complaint.
7 As set forth in the complaint, the bargaining unit in this case is de-
fined as follows:
All production and maintenance employees including textile opera-
tors, beam/warp/weaver, rubber workers, fixer and lead operator, em-
ployed at Respondent’s North Charleston, South Carolina facility; ex-
cluding all office clerical employees, professional employees, quality
control department employees, guards and supervisors as defined in
the Act.
(1) knowledge; (2) intent; (3) mistaken belief; and (4)
detrimental reliance. See Red Coats, 328 NLRB 205,
206 (1999); R.P.C., supra at 233. In addition, in light of
the underlying premise of the estoppel doctrine, the
Board also assesses whether the party to be estopped has
received a benefit as the result of its actions. See Red
Coats, supra at 207; R.P.C., supra at 233.
The Board previously has applied the doctrine of es-
toppel to preclude employer unfair labor practice de-
fenses similar to those proffered by the Respondent in
the instant case. See, e.g., Red Coats, supra (finding that
respondent was estopped from withdrawing recognition
from union based on alleged inappropriateness of units,
as respondent previously had voluntarily recognized the
union as the representative of the challenged units and, in
fact, had insisted upon bargaining in the challenged sin-
gle-location units); R.P.C., supra (finding that the re-
spondent was estopped from withdrawing recognition
from union based on a claim that the union had achieved
its status as bargaining representative through a flawed
affiliation process, as the respondent had recognized and
bargained with the union despite its awareness of the
affiliation); Sewell-Allen Big Star, 294 NLRB 312
(1989), enfd. 943 F.2d 52 (6th Cir. 1991), cert. denied
504 U.S. 909 (1992) (concluding that the respondent was
estopped from challenging the validity of merger process
as a defense to the allegation that the respondent unlaw-
fully withdrew recognition, as the respondent had con-
tinued to deal with the union despite its knowledge of
merger). As in those cases, in which the Board found the
requisite knowledge and intent in the respondents’ accep-
tance of the events that they later sought to challenge, the
requisite knowledge and intent in the instant case is
demonstrated by the Respondent's voluntary recognition
of the Union as the bargaining representative of the pro-
duction and maintenance employees.8 Further, the Re-
spondent's conduct of bargaining with the Union for
more than a year prior to its repudiation of the bargaining
relationship (via its unilateral actions) surely induced the
Union to believe that the Respondent would forgo any
subsequent challenge to the propriety of the unit or to the

8 To demonstrate the “knowledge” required for purposes of the es-
toppel doctrine, it need not be established that the Respondent pos-
sessed actual knowledge that the Union in fact represented a majority
of the unit employees. “The party to be estopped [need not have]
knowledge of all the details or even the bona fides of the event in issue.
Rather, to be estopped a party must have had knowledge of an event
and have had the opportunity either to accept or refuse to accept the
ramifications of that event.” R.P.C., supra at 233 fn. 10.
In the instant case, the Respondent clearly had knowledge of the
event, i.e., it was the party that extended recognition. And, it had the
opportunity (within 6 months) to accept or refuse to accept the legal
consequences of that event.
DECISION OF THE NATIONAL LABOR RELATIONS BOARD784
Union’s majority status as of the time of recognition. See
Red Coats, supra at 206; R.P.C., supra at 233. Thus, the
Union, acting in reliance on its mistaken belief as to the
Respondent’s intentions, relied to its detriment on the
Respondent’s actions. Had the Respondent promptly
challenged the propriety of the unit or the Union’s major-
ity status, the Union would have been in a stronger posi-
tion to establish its authority through the Board’s proc-
esses.9 See Red Coats, supra at 206–207; R.P.C., supra at
233. Finally, as a result of its conduct, the Respondent
has obtained the benefit of avoiding potentially costly
and time-consuming litigation (or, alternatively, a union
organizing campaign), as well as the continued stability
of its labor relations. See Red Coats, supra at 207. Under
these circumstances, “[t]he policies of the Act are not
served by allowing the Respondent to use the process of
voluntary recognition to gain [a] benefit, only to cast off
this process when it does not achieve what it desires in
negotiations.” Id. Accordingly, we conclude that the Re-
spondent is foreclosed from belatedly contesting the Un-
ion’s majority status (as of the time of recognition) or the
propriety of the recognized unit.
C. The Recognized Unit is an Appropriate One
Further, and in any event, we conclude that the Re-
spondent has failed to demonstrate the existence of a
genuine issue of material fact regarding the appropriate-
ness of the recognized bargaining unit as described in the
complaint. In the context of an employer’s voluntary
recognition of a union, as in the instant case, extant
precedent provides that the Board's obligation to assess
the appropriateness of the bargaining unit under Section
9(b) is limited to a determination that the agreed-upon
unit is not inconsistent with the Act or contrary to Board
policy. See NLRB v. Cardox Division 699 F.2d 148, 155–
156 (3d Cir. 1983); Red Coats, supra at 207; Central
Washington Hospital, 303 NLRB 404, 412–413 (1991),
enfd. NLRB v. Universal Health Systems, 967 F.2d 589
(9th Cir. 1992). Thus, where “where a unit has been
agreed to by the parties, and is not prohibited by the stat-
ute, such a unit is appropriate under the Act, regardless
of whether the Board would have certified such a unit ab
initio.” Red Coats, supra, at 207.
In the present case, the Respondent simply asserts that
the recognized unit is inappropriate because the unit de-
scription “contains positions that either did not exist in
the relevant time period or do not currently exist.” View-

9 Indeed, the Union initially had filed an unfair labor practice charge
alleging that the Respondent, as a successor employer, had violated
Sec. 8(a)(5) by refusing to recognize the Union as the bargaining repre-
sentative of the Respondent’s production and maintenance employees;
the Union withdrew the charge, however, after the Respondent agreed
to voluntarily recognize the Union.
ing the Respondent's assertion in the light most favorable
to it, the assertion fails to reveal the existence of a genu-
ine issue of fact with respect to the “appropriateness of
the unit” as defined in the above-described precedent.
The asserted fact that certain positions set forth in the
unit description did not, and do not, exist does not itself
establish the inappropriateness of the unit. Clearly, the
Respondent’s contention does not suggest that the unit is
contrary to the Act or Board policy. Indeed, it is well
established that a unit of production and maintenance
employees is presumptively appropriate. See Appliance
Supply Co., 127 NLRB 319 (1960). Moreover, the Re-
spondent does not allege that the unit improperly in-
cludes a classification of employees that the statute or
Board policy dictates be excluded (e.g., managerial em-
ployees or guards). The Respondent does not even sug-
gest that the unit inappropriately encompasses an indi-
vidual who lacks a sufficient community of interest with
the other unit employees; rather, the Respondent merely
asserts that the unit description nominally references one
or more positions that do not exist. Under these circum-
stances, we find that the Respondent’s asserted defense
fails to reveal the existence of any genuine issue as to the
appropriateness of the recognized unit.
D. Respondent’s Affirmative Defenses are Without Merit
Having concluded that the Respondent is foreclosed
from belatedly contesting the Union’s majority status or
the propriety of the recognized unit, we turn to the alle-
gation-specific defenses proffered by the Respondent.
First, as a defense to the complaint allegation that the
Respondent has failed and refused to bargain with the
Union since January 16, 2003, the Respondent asserts
that a “reasonable period of time” has elapsed since its
voluntary recognition of the Union on August 14, 2001.
It is well established that an employer’s voluntary rec-
ognition of a union gives rise to an irrebuttable presump-
tion that the union possesses majority support; that irre-
buttable presumption remains in force for a “reasonable
period of time.” See Royal Coach Lines, 282 NLRB
1037 (1987), enf. denied on other grounds 838 F.2d 47
(2d Cir. 1988); Keller Plastics Eastern, 157 NLRB 583
(1966). Upon the expiration of a reasonable period of
time, however, the union continues to enjoy a rebuttable
presumption of majority status. Thus, an employer can-
not simply withdraw recognition from a union after a
reasonable period of time has elapsed. Rather, an em-
ployer may withdraw recognition from the union only if
it possesses evidence that the union has in fact lost ma-
ALPHA ASSOCIATES 785
jority support. See Levitz, 333 NLRB 717 (2001).10 The
Respondent here does not suggest that the Union no
longer possesses majority support.
The Respondent additionally asserts that the parties
were unable to agree on contract terms, and that such
failure to agree “may have risen to the level of impasse.”
The Respondent cites no facts in support of its conclu-
sory statement, however. Additionally, as noted by the
General Counsel, documentary evidence (e.g., a letter
dated January 16, 2003, from the Union to the Respon-
dent’s counsel) supports precisely the opposite conclu-
sion—that the parties (or, at the least, the Union) were
willing to meet and discuss various contract proposals.11
Accordingly, the Respondent’s conclusory assertion does
not give rise to a genuine issue of material fact.
With respect to the Respondent’s alleged unilateral
implementation of a wage increase on July 29, 2002, the
Respondent simply contends that the wage increase was
consistent with its past practice regarding wage increases
at its other operations. The Respondent’s assertion in this
regard fails to raise any genuine issue of material fact as
to whether the Respondent’s conduct violated Section
8(a)(5), as the Respondent’s past practice at other facili-
ties does not serve as a justification for the Respondent’s
unilateral implementation of a wage increase at the facil-
ity at issue here.
Finally, with respect to the alleged unilateral layoff of
unit employees, the Respondent contends that its deci-
sion was the result of “extreme economic pressures
brought on by a flood of imports on the market” and,
accordingly, did not violate the Act. It is axiomatic that
an employer’s decision to lay off employees is a manda-
tory subject of bargaining; thus, in the absence of an
agreed-upon contractual provision on the subject, an em-
ployer is obligated to bargain with an incumbent union
with respect to both the decision to conduct a layoff and
the effects of any such decision. See Farina Corp., 310
NLRB 318, 320 (1993). That an employer’s determina-
tion to lay off employees is motivated by economic con-
siderations does not relieve an employer of its bargaining
obligation. Id. However, if an employer can demonstrate
that “economic exigencies” compelled prompt action, the
Board will excuse the employer's failure to notify and
bargain with the union prior to implementing its deci-

10 Alternatively, an employer may file an RM petition if it has a
“good faith uncertainty” as to the whether the union at issue possesses
majority support. See Levitz, supra.
Chairman Battista and Member Schaumber did not participate in
Levitz, and they express no view as to whether it was correctly decided.
Even under pre-Levitz precedent, however, the Respondent had no
objective basis for doubting the Union’s majority status.
11 The letter was attached to the Motion for Summary Judgment. The
Respondent’s response does not controvert the letter.
sion. See Bottom Line Enterprises, 302 NLRB 373
(1991). The Board has characterized the economic exi-
gency exception as a heavy burden, however; thus, the
Board has limited its application of the exception to “ex-
traordinary events which are ‘an unforeseen occurrence,
having a major economic effect [requiring] the company
to take immediate action.’” Hankins Lumber Co., 316
NLRB 837, 838 (1995) (quoting Angelica Healthcare
Services, 284 NLRB 844, 852–853 (1987)). “Absent a
dire financial emergency, the Board has held that eco-
nomic events such as the loss of significant accounts or
contracts, operation at a competitive disadvantage, or
supply shortages do not justify unilateral action.” RBE
Electronics of S.D., 320 NLRB 80, 81 (1995).12
Applying these principles to the instant case, the facts
asserted by the Respondent—even viewed in the light
most favorable to the Respondent—are insufficient to
establish the requisite “extraordinary event” necessary to
relieve the Respondent of its obligation to notify and
bargain with the Union regarding the layoff of unit em-
ployees. The Respondent claims that it decided to cease
manufacturing textile material as a result of its competi-
tors’ sale of the material at a price lower than the cost at
which the Respondent could manufacture it and, conse-
quently, that it laid off unit employees “in response to
significant competitive pressures.” First, as noted above,
an employer’s operation at a competitive disadvantage
does not constitute an “economic exigency.” See RBE,
supra at 81. More significantly, the Respondent does not
allege any facts to suggest that the competitive pressures
that compelled its action had emerged only recently, or
that a “precipitate worsening of [the] situation” necessi-
tated immediate action (such that the Respondent could
not have bargained with the Union first). See Hankins
Lumber, 316 NLRB at 838. Accordingly, the Respondent
has not established the existence of a genuine issue of

12 Although the Board additionally has recognized a category of
lesser economic exigencies—those that do not rise to the level of an
“extraordinary event” relieving an employer of its obligation to bargain
entirely, but that nevertheless compel prompt action as the result of an
occurrence that was beyond the employer’s control—the existence of
such lesser exigencies does not excuse an employer’s failure to bargain
with the union. See RBE, supra at 81–82. Rather, the existence of such
circumstances merely will allow an employer engaged in contract nego-
tiations to implement a unilateral change after providing notice to the
union and bargaining to impasse on the matter proposed for change (as
contrasted with an impasse in bargaining for the contract as a whole).
Id. at 82.
As it is undisputed that the Respondent in this case did not notify or
bargain with the Union regarding the layoffs, the Board need not de-
termine whether the facts as alleged by the Respondent could support a
finding of such lesser economic exigencies.
DECISION OF THE NATIONAL LABOR RELATIONS BOARD786
fact warranting a denial of summary judgment on this
issue.13
For all the foregoing reasons, we conclude that there
are no factual issues warranting a hearing in this matter,
and that the Respondent’s affirmative defenses are in-
adequate to defeat the General Counsel’s Motion for
Summary Judgment. Accordingly, we grant the Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation with a place of business in North Charleston,
South Carolina, has been engaged in the manufacture and
sale of fabrics and composites for use in thermal insula-
tion and other products. During the 12-month period pre-
ceding issuance of the complaint, the Respondent, in the
course and conduct of its business operations, purchased
and received at its North Charleston facility goods valued
in excess of $50,000 directly from points outside the
state of South Carolina, and sold and shipped products
valued in excess of $50,000 from its North Charleston
facility directly to points outside the State of South Caro-
lina. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. We further find that Union of
Needletrades Industrial & Textile Employees (UNITE),
AFL–CIO, CLC (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Beginning on or about March 8, 2002, the Respondent
unilaterally laid off six bargaining unit employees with-
out notifying or bargaining with the Union. In addition,
on July 29, 2002, the Respondent unilaterally granted a
wage increase to unit employees without notifying or
bargaining with the Union. Finally, since on or about
January 16, 2003, the Respondent has failed and refused
to meet and bargain with the Union as the representative
of the unit employees. We find that the Respondent’s
conduct in this regard violates Section 8(a)(5) and (1) of
the Act.

13 The Respondent has failed to assert any other potential defenses to
the allegation that it unilaterally laid off unit employees (e.g., that the
layoffs were merely a consequence of a change in the scope or direction
of the Respondent’s business or other nonmandatory subject of bargain-
ing, see First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981)). Thus, such defenses have been waived.
CONCLUSIONS OF LAW
1. The Respondent, Alpha Associates, is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. UNITE is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all material times since August 14, 2001, the
Union has been the exclusive collective-bargaining rep-
resentative of the Respondent's employees in the follow-
ing appropriate unit:
All production and maintenance employees including
textile operators, beam/warp/weaver, rubber workers,
fixer and lead operator, employed at Respondent's
North Charleston, South Carolina facility; excluding all
office clerical employees, professional employees,
quality control department employees, guards and su-
pervisors as defined in the Act.
4. By laying off unit employees without first notifying
the Union or affording it an opportunity to bargain; by
granting a wage increase to unit employees without first
notifying the Union or affording it an opportunity to bar-
gain; and by failing and refusing to meet and bargain
with the Union since on or about January 16, 2003, the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
5. The Respondent’s actions described above consti-
tute unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order the Respondent
to cease and desist from engaging in such conduct, and to
take certain affirmative action designed to effectuate the
policies of the Act.
Specifically, having found that the Respondent unlaw-
fully withdrew recognition from the Union, we shall or-
der the Respondent to recognize and bargain with the
Union in the unit described below with respect to wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, to embody such un-
derstanding in a signed agreement.
Having found that the Respondent unlawfully granted
a wage increase to unit employees on July 29, 2002,
without notifying the Union or affording it an opportu-
nity to bargain, we shall order the Respondent, if re-
quested by the Union, to rescind the unilateral wage in-
crease.
Having found that the Respondent unlawfully laid off
bargaining unit employees beginning on or about March
ALPHA ASSOCIATES 787
8, 2002, without notifying the Union or affording it an
opportunity to bargain, we shall order the Respondent to
bargain with the Union concerning the layoff decision
and its effects. Additionally, we shall order the Respon-
dent to offer reinstatement to employees Melvin Smith,
Thomas Kelly, Benjamin Williams, Dorothy Triplett,
Thomas Brown, and Andrea Wright, and to make those
employees whole for any loss of earnings and other
benefits resulting from the unilateral layoffs. See Wilen
Mfg. Co., 321 NLRB 1094 (1996); Farina Corp., 310
NLRB 318 (1993); Lapeer Foundry & Machine, 289
NLRB 952 (1988). The make-whole order shall include
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The Respondent’s backpay liability shall run from the
date of the layoffs until the date the employees are rein-
stated to their same or substantially equivalent positions,
or have secured equivalent employment elsewhere.
Backpay shall be based on the earnings that the employ-
ees normally would have received during the applicable
period, less any interim net earnings, and shall be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Finally, for the reasons set forth in Caterair Interna-
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view that an affirma-
tive bargaining order is “the traditional, appropriate rem-
edy for an 8(a)(5) refusal to bargain with the lawful col-
lective-bargaining representative of an appropriate unit
of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In Vincent, the court stated that an
affirmative bargaining order “must be justified by a rea-
soned analysis that includes an explicit balancing of three
considerations: (1) the employees’ Section 7 rights; (2)
whether other purposes of the Act override the rights of
employees to choose their bargaining representatives;
and (3) whether alternative remedies are adequate to
remedy the violations of the Act.” Vincent, 209 F.3d at
738.
We have examined the particular facts of this case as
the D.C. Circuit requires, and we find that a balancing of
the three factors warrants an affirmative bargaining or-
der.14
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s refusal to recognize and bargain with the Un-
ion. At the same time, an affirmative bargaining order
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because its duration is only temporary.
Moreover, we have found that, in addition to its refusal
to meet and bargain with the Union, the Respondent has
committed several other violations of the Act. Indeed,
less than 7 months after its voluntary recognition of the
Union, the Respondent unilaterally laid off bargaining
unit employees and granted a wage increase to unit em-
ployees without bargaining with the Union. By this con-
duct, the Respondent undermined the Union’s opportu-
nity effectively to bargain. As the Union was never given
a truly fair opportunity to reach an accord with the Re-
spondent, it is only by restoring the status quo ante and
requiring the Respondent to bargain with the Union for a
reasonable period of time that the employees will be able
to fairly assess for themselves the Union’s effectiveness
as a bargaining representative.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of discouraging support for the Union. It also ensures
that the Union will not be pressured by the Respondent’s
withdrawal of recognition to achieve immediate results at
the bargaining table following the Board’s resolution of
its unfair labor practice charges and issuance of a cease-
and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s refusal to bargain with the Union because it
would permit a decertification petition to be filed before
the Respondent has afforded the employees a reasonable
time to regroup and bargain through their representative
in an effort to reach an initial collective-bargaining
agreement. Such a result would be particularly unfair in

14 In Caterair International, supra, the Board disagreed with the
case-by-case analysis required by the D.C. Circuit. Chairman Battista
and Member Schaumber do not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” They
agree with the District of Columbia Circuit Court of Appeals that a
case-by-case analysis is required to determine if the remedy is appro-
priate. See Saginaw Control & Engineering, 339 NLRB 541, 546 fn. 8
(2003). They recognize, however, that the view expressed by the Board
in Caterair International, supra, is extant Board law.
DECISION OF THE NATIONAL LABOR RELATIONS BOARD788
circumstances such as those here, where the Respon-
dent’s other unfair labor practices were serious unilateral
actions that were likely to have a continuing effect,
thereby tainting employee disaffection from the Union
arising during that period or immediately thereafter. We
find that these circumstances outweigh the temporary
impact the affirmative bargaining order will have on the
rights of employees who might oppose continued union
representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order, with its temporary decertification
bar for a reasonable period of time, is necessary to fully
remedy the Respondent’s unlawful refusal to bargain
with the Union in this case.
ORDER
The National Labor Relations Board orders that the
Respondent, Alpha Associates, North Charleston, South
Carolina, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following appropriate unit:
All production and maintenance employees including
textile operators, beam/warp/weaver, rubber workers,
fixer and lead operator, employed at Respondent's
North Charleston, South Carolina facility; excluding all
office clerical employees, professional employees,
quality control department employees, guards and su-
pervisors as defined in the Act.
(b) Granting a wage increase to unit employees with-
out first providing adequate notice to the Union and af-
fording it a meaningful opportunity to bargain with re-
spect to such change.
(c) Laying off unit employees without first providing
adequate notice to the Union and affording it a meaning-
ful opportunity to bargain over the decision and its ef-
fects.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with the Union as the exclusive collective-bargaining
representative of unit employees with respect to wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) If requested by the Union, rescind the wage in-
crease unlawfully granted to the unit employees through
the Respondent’s unilateral action; provided, however,
that nothing in this Order shall be construed as requiring
the Respondent to rescind the wage increase unless the
Union requests such action.
(c) On request, bargain with the Union concerning its
decision to lay off unit employees beginning on March 8,
2002, and the effects of that decision.
(d) Within 14 days of this Order, offer Melvin Smith,
Thomas Kelly, Benjamin Williams, Dorothy Triplett,
Thomas Brown, and Andrea Wright full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights and privileges previously
enjoyed.
(e) Make Melvin Smith, Thomas Kelly, Benjamin Wil-
liams, Dorothy Triplett, Thomas Brown, and Andrea
Wright whole for any loss of earnings and other benefits
they suffered as a result of the Respondent's unlawful
layoffs in the manner set forth in the remedy section of
this decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security records, timecards, personnel records and
reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at
its North Charleston, South Carolina facility copies of
the attached notice marked “Appendix.”15 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
should be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted By Order of the Na-
tional Labor Relations Board” shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ALPHA ASSOCIATES 789
employees employed by the Respondent at any time
since March 8, 2002.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to meet and bargain with the Un-
ion of Needletrades, Industrial & Textile Employees
(UNITE), AFL–CIO, CLC, as the exclusive representa-
tive of our employees in the following appropriate unit:
All production and maintenance employees including
textile operators, beam/warp/weaver, rubber workers,
fixer and lead operator, employed at Respondent's
North Charleston, South Carolina facility; excluding all
office clerical employees, professional employees,
quality control department employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT unilaterally grant a wage increase, or
unilaterally change any other term or condition of your
employment, without notifying and affording the Union
an opportunity to bargain about such matters.
WE WILL NOT unilaterally lay off unit employees with-
out notifying and affording the Union an opportunity to
bargain about such matters.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with Un-
ion of Needletrades, Industrial & Textile Employees
(UNITE), AFL–CIO, CLC, and put in writing and sign
any agreement reached on terms and conditions of em-
ployment for you.
WE WILL, if requested by the Union, rescind the wage
increase granted to you.
WE WILL, on request, bargain with the Union concern-
ing the decision to lay off unit employees, and the effects
of that decision.
WE WILL offer to Melvin Smith, Thomas Kelly, Ben-
jamin Williams, Dorothy Triplett, Thomas Brown, and
Andrea Wright full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
WE WILL make the above-referenced employees whole
for any loss of earnings or other benefits they suffered as
a result of the unlawful conduct found in this case, with
interest.
ALPHA ASSOCIATES