American Fluorescent Corp.

National Labor Relations Board - Board Decisions

Jul 16, 1985

275 N.L.R.B. 1097 (N.L.R.B. 1985)

AMERICAN FLUORESCENT CORP
American - Fluorescent Corp. and Local Union No.
134, International Brotherhood of Electrical
Workers. Case 13-CA-23495
16 July 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS.
HUNTER AND DENNIS
On 24 April 1984 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs. -
The Board has considered the decision and the
record in'light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' In agreeing with the judge's findings, we find it unnecessary to deter-
mine whether, had a "substantial" number of its employees transferred
from the Chicago facility to Waukegan, Illmois, the Respondent would
have had a continuing obligation to recognize and bargain with the
Union, as the judge suggests would be the case under Westwood Import
Co, 251 NLRB 1213 (1980), because that issue is not before us
1097
FINDINGS OF FACT
1. JURISDICTION
At all times material herein Respondent, an Illinois
corporation with an office and place of business in Wau-
kegan, Illinois, has been engaged in the manufacture and
sale of fluorescent lighting equipment. Based on a projec-
tion of its operations since about July 1, 1983, at which
time Respondent, commenced its operations, Respondent,
in the course and conduct of its operations, will annually
sell and ship from its Waukegan, Illinois facility prod-
ucts, goods, and materials valued in excess of $50,000,di-
rectly to points outside the State of Illinois. Based on its
operations since' about July 1, 1983,. at which time Re-
spondent commenced its operations, Respondent, in the
course and conduct of its operations described above,
will annually purchase and receive at its Waukegan, Illi-
nois facility products, goods, and materials valued in
excess of $50,000 directly from points outside the State
of Illinois. -
It is admitted, and I find, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION -
It is admitted, and I find, that the Union is now, and
has been at all times material herein, a labor organization
-within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law,Judge. This
case was tried before me at Chicago, Illinois, on Febru-
ary 1, 1984, pursuant to a complaint issued by the
Board's Regional Director on September 13, 1983, and
an unfair labor practice charge'filed on August 4, 1983,
by Local Union No 134, International Brotherhood of
Electrical Workers (the Union) against American Fluo-
rescent Corp (Respondent). The complaint alleges that
on July 19, 1983, Respondent violated Section 8(a)(5)
and (1) of the Act by the withdrawal of recognition of
the Union as exclusive employee bargaining agent as
"had been embodied in successive collective bargaining
agreements,' the most recent of which is effective by its
terms of the period September 1, 1979, to August 31,
1982." Respondent, by a duly filed answer, denies the
commission of an unfair labor practice.
At the teal before me.the parties were given the op-
portunity to present relevant evidence, and to argue
orally The parties filed posthearing briefs about March
7, 1984.
Based on the entire record, I make the following
A. The Issue
The issue in this case is whether or not Respondent
unlawfully withdrew recognition from the Union after it
had relocated its operations from Chicago, Illinois, to
Waukegan, Illinois. The General Counsel contends that
Respondent continued its operations in substantially the
same manner, but in a different location, with a substan-
tial number of the former bargaining unit employees who
continued substantially the same work tasks, and that the
collective-bargaining unit survived, and that the Union's
majority status as bargaining agent for that unit enjoyed
a rebuttable presumption following the expiration of the
last. of a series of collective-bargaining agreements. The
General Counsel argues that Respondent did not rebut
that presumption of majority status, either by evidence of
actual loss of majority status or by a good-faith belief of
loss of such status, but that, in any event, Respondent is
precluded from rebutting such presumption because of
alleged prior unfair labor practices which were litigated
previously in a separate proceeding
Respondent contends that the relocated operation in-
volved substantial changes, and that only an insubstantial
fraction of employees accepted its invitation and assist-
ance and transferred to the new plant and thus precluded
the presumption of continued union majority status. Re-
spondent argues that the findings of unfair labor prac-
tices by an administrative law judge in another proceed-
ing is not conclusive but that, in any event, assuming
that unfair labor practices were committed, they were
275 NLRB No. 154
1098. DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
narrow , technical violations, remote in time and unrelat-
ed to the plant relocation which was executed in good
faith for economic reasons and in the absence of evi-
dence of antiunion animus, and therefore do not preclude
it from entertaining a reasonable good -faith doubt as to
union majority 'status.
The Union, contrary to the General Counsel , and un-
supported by explicit allegations of the complaint , argues
that the most recent collective -bargaining agreement did
not expire in toto but certain clauses survived and there-
fore Respondent-was obligated to continue its recogni-
tion of the Union inasmuch- as the Employer merely relo-
cated its operations with no substantial ' change but with a
substantial number of former unit employees , i.e.; the
presumption of .majority status was irrebuttable, given
the survival of certain clauses of-the contract , including
the recognition clause.
B. Facts
The essential "operative" facts in this case are not disput-
ed, except with .respect to whether Respondent 's oper-
ations at a . new - location were substantially unchanged.
Within ' that issue - there is a very limited ' area of factual
dispute. -
The Respondent and the ' Union had maintained a 10-
year collective-bargaining relationship as reflected by a
serves of collective-bargaining agreements, the most
recent of which.covered by- its terms a period from Sep-
tember 1 , 1979, to August 31, 1982, and encompassed the.,
following unit:
[A]ll production and maintenance employees em-
ployed by the Employer in its plant located at 3800
North Milwaukee Avenue, Chicago, Illinois 60641,
and excluding all office_ and clerical employees,
plant guards and. supervisors , as defined in the
,Labor-Management Relations Act of 1947, as
Amended. [Art. 11, sec. 1.]
Section 2 stated that, ' , • ,
The provisions : of this Agreement shall be applica-
ble to the-bargaining unit, as herein defined , in each
'plant of the Employer located in Cook or Lake
- Counties,' Illinois, or at a point not more than-
l' "twenty-five (25) miles from 600 West Washington
Boulevard , Chicago, -Illinois, including any plant or
,plants in said Counties' or area to which the Em-
-' ployer ` shall, move a covered plant -' at any time-
'('during this Agreement .' - - _ ' -
-In,article I of the contract - Respondent recognized the
Union ' as, the . exclusive • collective-bargaining representa-
tive of the employees in the, unit described above . Article
XXX stated:[ ; - c
This agreement . . . shall take effect as of Septem-
ber 1_1979 , , and.continue' in full force , and effect
.,until August 31 , _ 1982, and .from . year to . year there-
after, unless either party shall give notice in-writing
to the other not less than sixty (60) days prior to
• 1•Septem6er 1,• 1982, or September 1, of any subse-
quent year , of a desire to amend or terminate this
agreement.
Pursuant to a timely filed notice by the Union, Re-
spondent and the Union commenced negotiations for a
succeeding contract on August 11. After several bargain-
ing sessions , negotiations ended on December 11, 1982.
Respondent asserted that impasse had been reached and
thereafter on January 1, 1983, it implemented certain uni-
lateral changes pursuant to its last offer . Those changes
became the subject of litigation pursuant to unfair labor
practice charges filed against Respondent in Case 13-
CA-22840 and a resulting complaint wherein the Gener-
al Counsel alleged that Respondent violated Section
8(a)(5) and ( 1) by failing to make a fourth-quarter 35-
cent-per-hour COLA payments to its employees, by re-
fusing to submit financial information after valid requests
by the ;Union , by unilaterally ceasing certain Christmas
benefits , and, without reaching a good -faith impasse, by
implementing provisions of its final offer . That case was
litigated in a consolidated proceeding before Administra-
tive Law Judge Stanley N. Ohlbaum prior to the filing
of the charge in this case . Judge Ohlbaum issued his de-
cision shortly before the receipt of briefs herein. The
prior case involved several other fluorescent lighting
equipment manufacturers alleged to have committed
identical violations . Judge Ohlbaum found , inter alia, that
no impasse had been reached in negotiations held subse-
quent to "expiration" of the most recent contract and he
found merit to the 8(a)(5) and 8 (a)(1) allegations pre-
mised on the alleged unilateral changes.' The judge also
found that Respondent breached its statutory duty by
failing to submit to the Union financial records to sup-
port its economic bargaining position and thus it violated
Section 8(a)(5) and (1) of the Act.2
With respect to Respondent 's final proposal in those
negotiations , it provided for a unit limited only to the
Milwaukee Avenue, Chicago, Illinois location, i e., the
old location , it deleted application of the collective-bar-
gaining agreement to other facilities , and it expanded
managerial rights in article III to include, inter alia, "the
right to shut down or relocate the plant - in whole or in
part and to, select the site of any such location " Subse-
quently , Respondent moved its operations from Milwau-
kee Avenue , Chicago, to Waukegan, Illinois,, during the
months of July and August 1983.
Subsequent to the expiration date of the most recent
contract , Respondent continued to recognize the Union
until after , it had completely moved . Prior to the com-
pleted move , Respondent continued to check off dues of
union members as it had done during the term of the
contract , and it continued to process grievances under
the format as set forth in the expired contract.
'By letter of December 21, 1982 , Respondent - notified
the Union of its "tentative" decision to sell " its" Chicago
plant to a'"tentative" buyer , and that it expected that, if
actualized ,- the sale would occur within 6 months. Re-
i The judge clearly made reference elsewhere in his decision to the
contract as an "expired " contract
2 All parties have requested that I take notice of Judge Ohlbaum's de-
cision and the supporting record
AMERICAN FLUORESCENT CORP - 1099
spondent set forth that a new location was not yet "fully
considered." By letter of April 27, 1983, Respondent in-
formed the Union of a firm decision to sell the plant by
the "owners" of the Chicago plant in which Respondent
operates as a,nonowner. Respondent advised of "tenta-
tive arrangements for a lease on a plant in [Waukegan]
which lease will be finalized in the immediate future "
Respondent set forth that all employees are offered "em-
ployment at the new location in their current jobs."
Commencement of the move was stated as about June 1
to be completed in July 1983. Respondent advised the
Union that it would "post a notice for employees to indi-
cate whether they are going to continue employment at
the new location " The Chicago plant had been rented
by Respondent from a Chicago land trust
There is some cryptic testimony adduced by the Union
in cross-examination that the "family" , of Respondent's
corporate president has "an interest" in that land trust.
The evidence is insufficient to support the Union' s asser-
tion in its brief that the land trust is not a disinterested
landlord, but rather the identical "family" that owned
the real property and Respondent corporation.
At the trial, the General Counsel explicitly acknowl-
edged that the General Counsel was not alleging that the
relocation of operations was discriminatorily motivated.
At the trial counsel for the Union did not dissociate from
that acknowledgment. Moreover, the critical decision by
Respondent is not the decision to move, but the decision
as to where it would relocate. Testimony adduced by
Respondent as to the lengthy process it had engaged in
to select a new location from a field of 200 property list-
ings as close as possible to the old plant but within the
realm of economic and business advantage remained un-
controverted and unchallenged except for the Union's ar-
gument in brief that bad faith should be inferred because
of Respondent's last proposal in bargaining, i.e., that the
unit recognition be explicitly, geographically limited. In
light of Respondent's unrefuted testimony. I find insuffi-
cient basis to make this inference of bad faith.
After a search of several months duration, Respondent
selected the Waukegan , Illinois plantsite , in Lake
County, 35 miles north of its old plant. During this time
the Union made no response to Respondent's notifica-
tions respecting the relocation, and the Union remained
silent.
By a notice dated May 2, 1983, Respondent' advised
the employees that the relocation of operations would
commence about June 1, 1983; that employment for them
was available at the new location at their same jobs and
for the same pay; and that those employees who desired
to transfer should execute an " intent to move" form by
May 31 in order for it to ascertain the need for new hires
if any. Respondent made arrangements whereby employ-
ees were given information. It offered assistance to those
employees who desired to relocate, e.g., carpool forma-
tions, a change in shift starting time if needed, etc.
It was Respondent's decision to relocate all of its then
complement of 65 unit employees. By May 31, only 20
employees had- executed relocation forms. Of those, nine
thereafter submitted written retractions. After.-May 31,
new employees were gradually hired at Waukegan.
Operations were phased in at Waukegan starting July
5, 1983. Production terminated at Chicago on August 5,
1983, and was fully established at Waukegan by Septem-
ber 1, 1983. By letter dated July 1983, Respondent, by its
attorney and pursuant to the advice of its attorney, in-
formed the Union that the Chicago plant would be
closed by July 29, 1983, and that Waukegan operations
had already commenced "with a completely new work
force," and that about "15 of more than'60 employees
had accepted a job transfer to Waukegan." Also, the
Union was notified that by July 29 the transferees would
start working at Waukegan and would comprise "less
than one third of the total work force at the Waukegan
plant." Respondent then stated that "under these circum-
stances the Company has a good-faith doubt that Local
134 represents a majority of the employees at the Wau-
kegan plant" and it refused to extend recognition of the
Union as bargaining agent for employees at the Wauke-
gan plant.3
William Solomon , Respondent 's president and chief ex-
ecutive, testified that the sole basis for withdrawal of
recognition was the doubt of majority status derived
from the fact that only a minority of unit members indi-
cated a desire to transfer.
The progress of employment levels at both plants is as
follows:
ate
Employees
at
Employees at
Waukegan Plant
Chicago
Employees
Who
Employees
Who
Moved toChicago
Plant Planned Actual Intendedto Move
Waukegan
Plant
5/31/83 65 65 0 20. -
7/19/83 . 65 65 23 19 -
7/24/83 64 65 24 13 1
7/31/83 60 65 36 12 5
8/05/83 12 65 39 11 7
8/28/83 0 65 63 111 124
The relocation of Respondent's plant did not involve a
mere physical relocation of a plant within the same envi-
ronment, e.g., one suburb to another suburb, or one area
of the- city of Chicago to another area in the city. The
move resulted in the relocation of a plant from a densely
populated industrial-residential urban area of northside
Chicago with attendant transportation amenities , to that
of a distinct separate community of about 70,000 popula-
tion (an exurb rather than suburb ) having its own distinct
labor pool and situated 35 miles to the north, accessible
by an automobile drive of 50 minutes or a combined
urban bus to bus, to intercity railroad combination of 2-
1/2 to 3 hours and greater expense than intracity public
transportation. Of the 65 employees on duty in June
1983, 10 lived on the south side of Chicago, up to 50
miles from Waukegan. Of those 65, 40 lived on the north
3 By June 2, 1983, 1 of the original 20 potential transferees had execut-
ed a written retraction of intent By July 22, six more employees had exe-
cuted retractions, and by July 29 a ninth retracted his transfer request
* One employee who had not originally executed a transfer prior to
May 31 did so subsequently and was therefore transferred in addition to'
the 11 described above -
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side of Chicago, , of whom • 12 were within walking dis-
tance -of the old plant; 15 of those 65 utilized public
transportation, some "walked or carpooled. A total of 35
employee cars were driven to the old plant.
There is no 'evidence that Respondent took any action
to inhibit the transfer of former bargaining unit members,
and no evidence to refute.evidence of proffered assist-
ance. Inasmuch as the Union made-no effort to seek bar-
gaining about the relocation or its effects, there is conse-
quently-no evidence of Respondent's refusal to bargain in
this regard -
. `By letter dated July 22; -1983,• the Union submitted a
grievance, to Respondent suggesting that the parties
waive certain steps of the grievance procedures and
move directly- to arbitration. The grievances alleged
breach of articles I and II-of the -"working agreement,"
i.e., the most recent contract
By letter dated July 28, Respondent refused accept-
ance of the grievance on the grounds that the Union was
not the bargaining agent at- the Waukegan plant, that
there was no collective-bargaining ' agreement or griev-
ance procedure with respect to that plant, that there was
no collective-bargaining agreement in effect nor a griev-
ance and arbitration provision 'in effect for the' preceding
11 months, that the grievance fails to extend to any em-
ployee benefit vested during the term "of the now long-
expired CBA for the [Chicago] plant," that the grievance
relates to "the recognition and jurisdiction provisions re-
lating to the work force of the [Chicago] plant to a new
and different work force located in a different city, and
different county, some 30 plus miles away where the
Union does not represent a majority of that work force,"
and that compliance with the grievance request would
constitute a violation of Section 8(b)(1)" and (3) of the
NLRA. The letter noted that by the end of the week
former bargaining unit employees would constitute only
12 of 45 employees employed up to that time.
The Union filed the instant charge on August 4. Final-
ly, by letter dated August 17, the Union requested infor-
mation of Respondent- concerning the unit employees'
names; addresses, classifications, and current rates of pay.
In response , William Solomon, by letter dated August
29, stated that there was no collective-bargaining agree-
ment "currently in effect' between the Union and Re-
spondent, and that "[s]ince Local 134 is not the collec-
tive-bargaining agent for the hourly employees of our
Waukegan plant, we have no obligation to furnish you
with the information requested in your letter."
The operations of Respondent at Waukegan continued
essentially in the same' manner , with work tasks which
remained essentially the same However, some -changes
occurred. About- half of the equipment is new, but this
did^not impact the basic work tasks of the employees; 12
new product lines were acquired, 17 eliminated, and 31
remained . 'About one-third of Waukegan suppliers are
new, and one-fifth of its customers are new. There was a
change in one-third of-employee job titles. Certain super-
-visory functions changed.. Floor space was diminished
with the implementation of a more; modern high rack
storage-system. Work tasks with respect to such storage
as well as shipping and receiving were somewhat but not
drastically modified
Analysis
The General Counsel contends that Respondent relo-
cated its operations without substantial, change, subse-
quent to the expiration of a collective-bargaining agree-
ment with the Union and that its withdrawal of recogni-
tion of the Union thereafter, in the face of a rebuttable
presumption of 'continued majority status,'constitutes a
prima facie case of violative conduct wherein "the issue
of the Union's` numerical strength 'is irrelevant " The
General Counsel relies on -Massachusetts Machine &
Stamping, 231 NLRB 801, 802 (1977), enf. denied 578
F.2d 15 (1st Cir: 1978), which, it argues, like this case in-
volves an expired contract and which is distinguishable
from Westwood-Import Co, 251 NLRB 1213 (1980), in-
volving contractual midterm relocation, a substantial per-
centage of transferred employees and a resulting irrebut-
table presumption.5
The General Counsel, again citing Massachusetts Ma-
chine, supra, argues' that Respondent had the burden of
rebutting the presumption of union majority status by
evidence of a good-faith reasonable doubt of such, or
actual loss of majority status. The General Counsel
argues that Respondent herein is precluded from rebut-
ting the majority status presumption for the following
three reasons:
(1) [T]he-assertion of any doubt can only be raised
"ins a context free of unfair labor practices," (2) an
inference that, due to the unfair labor practices, a
more substantial, if not a majority of employees
would have transferred to the Waukegan facility;
and (3) in any event, replacements hired at the
Waukegan facility are presumed to support the
.Union in the same ratio as the employees they re-
placed and Respondent has made no showing that
the replacements do not support the Union
Assuming that the General Counsel is correct that I
ought to "give res judicata effect to" Judge Ohlbaum's
decision and bind myself by his findings that Respondent
committed the prior bargaining in bad-faith violations,
and further assuming that the Waukegan operation is a
substantial continuation of the Chicago operation, the
General 'Counsel's case must fail for the reasons dis-
cussed hereafter, and I find it unnecessary to resolve the
res judicata and continuity issues.
The General Counsel alleges that good-faith doubt
"can only be raised in a context free of unfair labor prac-
tices." He cites Chez Monez Ford, 241 NLRB 349 (1979)
That case did not involve a plant relocation issue and is
not only factually distinguishable but inapposite In Chez
Monez, the employer relied on ostensible employee ex-
pressions of rejection of union representation (a petition)
as a basis ' for asserted reasonable doubt of majority
5 At the trial I deferred ruling on Respondent's motion to dismiss on
grounds of expediency in order to avoid delay attendant with the Gener-
al Counsel's expressed need to brief the issue, and in view of Respond-
ent's mdication'that its evidentiary submission would be very limited
AMERICAN FLUORESCENT CORP
status However, in that case that criterion of loss of
status manifested itself subsequent to flagrant acts of co-
ercion (threats, interrogation) calculated to impact di-
rectly on the union's representational base. Under such a
direct causal relationship between minority status criteria
and 'employer misconduct, the Board discounted even
the lapse of time. Other cases cited by the General
Counsel are similarly distinguishable, e.g., Chicago Mag-
nesium Castings, 256 NLRB 668 (1981); Abbey Medical,
264 NLRB 969 (1982) The Board, however, has indicat-
ed that it is necessary to evaluate the totality • of circum-
stances, including the nature. of unfair labor practices
committed,, and that the commission of prior unfair labor
practices does not per se preclude good-faith doubt.
Guerdon Industries, 218 NLRB 658, 661 (1975)
. With respect to the impact of prior unfair labor prac-
tices in plant relocation situations , the General Counsel
relies on Cooper Thermometer Co., 160 NLRB 1902
(1966), enfd in part 376 F.2d 684 (2d Cir 1967). Howev-
er, in that case the unfair labor practices were directly
implicated in the plant relocation. There the employer's
unlawful refusal to bargain about the transfer of employ-
ees, a majority of whom sought transfer, was directly re-
lated to the reason a majority did not transfer. Also in
that case, there was no evidence that a majority of em-
ployees would not have transferred in the absence of
unfair labor practices A similar result was reached for
similar reasons in other cases cited by the General Coun-
sel, -e g , Die Supply Corp., 160 NLRB 1326 (1966), enfd
393 F.2d 462 (1st Cir. 1968), which involved a refusal to
negotiate concerning the move which, in turn , inhibited
employees from transferring; Air Express International
Corp., 245 NLRB 478 (1979), enfd. 659 F.2d 610 (5th
Cir. 1981), which involved an assertion of doubt during
the certification year and where the complement of em-
ployees changed only in direct consequence,of violations
of the Act;.and Fraser & Johnston Co., 189 NLRB 142
(1971), enfd. in part 469 F.2d 1259 (9th Cir 1.972), which
involved a discriminatory refusal to transfer employees
and a refusal to bargain about the relocation. .
One need only turn to Westwood Import .Co., 251
NLRB 1213 (1980), cited by the General Counsel for
other reasons, for a statement of the Board's evaluation
of the impact of unfair labor practices in the context of
majority status doubt following plant relocation. The
Board said at 1215-16:
In a number of'instances the Board has considered
cases involving relocations accompanied by attend-
ant unfair labor practices. Usually, the unfair labor
practices have involved an employer's failure to sat-
isfy its duty to bargain with its employees' repre-
sentative about the effects of a relocation, including
the terms under which employees will be"allowed
to transfer. i 7 In other instances, the unfair labor
practices have involved an attempt by an employer
to use a relocation for valid 'economic reasons as a
method of eliminating the union. i 8 Another fact
present in these cases is the transfer of-few, if any,
employees from the old facility to the new facili-
ty-19 The Board's approach in this type of case has
remained constant. After finding that an- employer
1101
has committed this type of unfair labor practice, the
Board has then examined the question of whether a
majority of the unit employees at the new facility
would have been comprised of employees from the
old facility had it not been for the employer's un-
lawful activity .' If the facts show that a majority
would not have transferred in any event , then the
Board has found that the employer is-not obligated
to bargain with the union at the new location unless
the union newly establishes its majority support
among the unit employees 20 On the other hand, if
the facts show that but for the company's unfair
labor practices a majority or some significant por-
tion - of the unit employees at the new location
would have ' been composed of employees from the
old location , then the Board has found that the
company is required to recognize and bargain with
the union at the new facility 21 Furthermore, if the
relocation occurred during the term of an agree-
ment , then the employer is also required to honor
the terms of the agreement at the new facility as in
Fraser & Johnston . 22 Thus, the instant case differs
from the type of case exemplified by Fraser & John-
ston because of the existence in that latter type of
case of unfair labor practices that prevent union-
represented employees from an old facility ' from
transferring to a new facility in which they would
constitute a majority or some significant portion of
the unit employees.
17 Fraser & Johnston [supra ] The Cooper Thermometer Company
[supra], Brown Truck and Trailer Manufacturing Company Inc' et
al, 106 NLRB 999 (1953)
ie Allied Mills Inc, 218 NLRB 281 (1975), Helrose Bindery, Inc,
and Graphics Art Finishing, Inc, 204 NLRB 499 (1973), and Jack
Lewis and Joe Levitan d/b/a California Footwear Company, 114
NLRB 765 (1955), enfd 246 F 2d 886 (9th Cir 1957) Even in this
type of case where a relocation is combined with attendant unfair
labor practices, to a considerable extent contract -bar principles are
interwoven into the applicable law See the Board 's discussion in
California Footwear Co, supra at 769-770 [cases involving evidence
of employer conduct calculated to inhibit the. transfer of employ-
ees]
19 This factor distinguishes cases in this category from cases in
which a relocation has occurred with attendant unfair labor prac-
tices but in which a majority of the employees in the unit at the
new facility transferred from the old facility In the latter type of
case, there is no necessity to examine whether but for the relocat-
ing employer 's unfair - labor practices additional unit employees
would have transferred Since the relocation occurred during the
term of an agreement and since a majority of the employees in the
new facility transferred, from the old facility, the employer is obli-
gated to recognize the union , and to honor the terms of the con-
tract, at the new facility .
-20 Brown Truck and Trailer Manufacturing Company, Inc,
supra
21 Cooper Thermometer Company, supra, and California Footwear
Co, supra .
22 See also Helrose Bindery, Inc, supra, and California Footwear
Co, supra -
In Westwood, at 1215 fn. 14,- the Board noted'that in
Massachusetts Machine, it relied on' the "crucial element"
and "essential" fact that 'a substantial percentage," 11 of
21 employees, transferred, and that without such factor,
the fact pattern in'Massachusetts Machine would have re-
sembled that of Pierce Governor Co, 164 NLRB 97
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.(1967), enfd. 394 F.2d 757 (D.C. Cir 1968), where it held
that.no duty to bargain arose at the new location, where
,there was no evidence of the employer's refusal to bar-
'gain over the relocation and where an insignificant
number of former employees transferred. The Board in
Pierce Governor did not use the phrase "substantial per-
centage" but rather referred to a lack of "majority" of
old employees as transferees. -
_ In this case, the alleged prior unfair labor practices are
not of the kind that are implicated in the plant relocation
nor of the nature as to have had a causal relationship to
the failure of a majority of employees or any employees
to seek transfer 'to Waukegan. There was here no refusal
to bargain about the relocation. Encouragement and as-
sistance for employee transfer was rendered by Respond-
ent. At no time subsequent to the prior alleged unfair
labor practices is there any evidence that employees
were induced to withhold services at the Chicago plant
because of those alleged unfair labor practices. Therefore
it is unreasonable to. infer that those alleged unfair labor
practices would have tended to inhibit the employees
from rendering services at Waukegan.
The General Counsel has failed to adduce evidence
that any of the employees would have transferred in the
absence of, prior unfair labor practices. Respondent has
,adduced sufficient evidence to support a reasonable infer-
ence that geographical and transportation difficulties
were an inhibiting factor. Finally, in the light of a lack of
causal relationship and direct implication, the remoteness
in time of those alleged unfair labor practices clearly
mitigates against the notion that somehow they discour-
aged employees from relocating to Waukegan. Within
this context, the evidence that the employer had sought
to narrow the geographical description of the unit during
prior contract negotiations is insufficient evidence that it
subsequently acted in bad faith-when it was faced with
the objective fact that a distinct minority of the unit ex-
pected to transfer, and that, immediately thereafter only a
-fraction indeed transferred.
The General Counsel's final assault on Respondent's
proffered arithmetic rests on the often-utilized presump-
tion that unit employee replacements support the union
in the same proportion as the-original employee comple-
ment in cases where reasonable doubt is based, in. whole
or in part, on employee turnover in nonrelocation cases,
e.g., Pioneer Inn, 228 NLRB 1263, 1266 (1977). However,
even-in nonrelocation cases , that presumption is not ap-
plied mechanistically, and may not be applied where rea-
sons exist- to doubt that new employees desire union rep-
resentation such as where the new unit employees came
from a source the nature of which indicated a lack of
desire for union representation. Convair Division of Gener-
al Dynamics Corp, 169 NLRB 131, 133 fn. 10 (1968). In
this case the replacements came from an entirely differ-
ent labor source, an area outside the Union's normal ju-
risdiction.
For application of the continuing ratio presumption in
plant relocation cases, the General Counsel cites Drukker
Communications, 258 NLRB 734.(1981), and Long Island
College, Hospital, 228 NLRB 83, 87 (1977). Drukker, how-
ever, is factually distinguishable. Only part of the unit
was relocated and-all but one of the moved segment of
employees transferred, and new employees were hired
gradually as the new segment expanded. Long Island Col-
lege Hospital is also distinguishable in that it does not in-
volve the same kind of plant relocation, but rather a
gradual alleged- unit change that purportedly occurred
over the course of years • where the employer 'acquired
new, buildings and moved operations from building to
building within the same geographical area In-Massachu-
setts Machine, supra, the Board applied the continuing
ratio theory to reject the employer's argument of turnov-
er and increase in employee complement after the com-
mencement-of new operations. It did,.. however, find a
numerical majority of transferees on that critical date.
The court disagreed with that computation.
It is quite apparent that the General Counsel's-argu-
ment on continuing ratio of support is inapplicable to this
type of plant relocation. If it were, the Board's analytical
exercise in Westwood and cases cited therein would be
absurd and unnecessary, because the existence or nonex-
istence of a majority or significant number of employees
who transferred, and whether that number was impacted
by employer misconduct, would be irrelevant. Moreover,
there is no rational basis for its application to the facts in
this case which involve, inter alia, transfer of modified,
albeit substantially similar operations, to a geographically
distinct labor pool area with but a small fraction of the
former unit employees.
I therefore conclude that the General Counsel's
theory, allegations, and arguments are without merit. I
further conclude that the General Counsel, by its case in
-chief, has failed to demonstrate a prima facie case. Its
own evidence revealed- a relocation of operations, with-
out even a substantial number of employee transferees, in
a context wherein no presumption of continuing ratio of
union support would be applicable and where no evi-
dence was adduced that Respondent committed prior al-
leged unfair labor practices that were implicated in the
relocation or a cause of the nontransfer of a majority of
those employees. The General Counsel failed to prove
that a majority of the unit employees would have moved
absent those alleged unfair labor practices. In any event,
Respondent adduced sufficient evidence to rebut any
conceivable presumption of continuing majority status in
the factual context herein.
In view of my conclusion that Respondent lawfully
withdrew recognition of the Union, it is unnecessary to
pass on the General Counsel's motion to amend the com-
plaint in its brief with respect to a subsequent refusal to
provide the Union with information relative to the Wau-
kegan operation:
With respect to the Union's theory of prosecution, the
,answer is simple . It is the General Counsel and only the
General .Counsel who is authorized to issue and amend
the complaint. His complaint explicitly . precludes the
theory of a continuation - of the collective-bargaining
agreement. If the Union is correct that the complaint did
not preclude the finding of the-survival of portions of the
expired contract, its position is in any event unsupporta-
ble by Board precedent, i.e., that a recognition clause
can survive a contract, and perpetuate an irrebuttable
presumption of majority status. Such a theory conflicts
AMERICAN FLUORESCENT- CORP.
with the concept of contract bar interwoven in the Gen-
era] Counsel's, theory, as discussed in Westwood, supra,
and elsewhere. The Union's theory must therefore rest
upon the thesis that the entire contract survived, co-
terminously with an open-end negotiation as to certain
clauses it sought to be modified. That clearly conflicts
not only with the General Counsel's theory of prosecu-
tion, on which Respondent was advised and prepared to
defend, and with the findings and stipulations in the prior
litigation, but also with the complaint allegation about
the duration of the most recent contract. I therefore reaf-
firm my ruling concerning the inadmissibility of docu-
mentary evidence proffered in support of the Union's
theory. I disregard as irrelevant any other evidence ad-
1103
duced by it without objection in support of the theory of
a survival of the contract in whole or in part.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The complaint is dismissed.
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
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 pur-
poses