Brooks & Perkins, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 1987

282 N.L.R.B. 976 (N.L.R.B. 1987)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Skydyne Division of Brooks & Perkins, Incorporat-
ed and Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC. Case 2-CA-
18408
4 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 27 February 1984 Administrative Law Judge
Howard Edelman issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Skydyne Di-
vision of Brooks & Perkins, Incorporated, Port
Jervis, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
i In finding that the Respondent unlawfully withdrew recognition
from the Union, the judge relied on the presumption that striker replace-
ments support the Union in the same ratio as those whom they have re-
placed Pennco, Inc., 250 NLRB 716 (1980), affd without relying on the
presumption 684 F.2d 340 (6th Cir 1982), cert. denied 459 U S 994
(1982). The Respondent contends that the presumption is unfounded and
invalid Alternatively, the Respondent argues that even if the presump-
tion is applicable it has been rebutted by sufficient objective consider-
ations supporting the Respondent's doubt that the Union had majority
status We disagree Even without the Pennco presumption, we find for
the reasons stated in the judge's decision that the Respondent failed to
introduce sufficient evidence of employee disaffection with the Union to
prove its affirmative defense of good-faith doubt about the Union's ma-
jority status Accordingly, we find that the Respondent violated Sec
8(a)(5) and (1) of the Act by withdrawing recognition from the Union.
David A. Pollack, Esq., for the General Counsel.
Joseph E. O'Leary, Esq. and Nancy E. Dowd, Esq.
(Choate, Hall & Stewart), for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on September 29, 1983.
On October 29, 1981, the Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC (the Union)
filed an unfair labor practice charge against Skydyne Di-
vision of Brooks & Perkins Incorporated (Respondent).
Following an investigation of this charge Region 2 issued
a complaint on December 29, 1981, alleging that Re-
spondent unlawfully withdrew recognition and thereafter
refused to bargain with the Union in violation of Section
8(a)(1) and (5) of the Act.
Briefs were filed by the General Counsel and by coun-
sel for Respondent. On consideration of the entire
record, the briefs, and my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT'
Respondent is a New York -corporation, engaged in
the manufacture, nonretail sale, and distribution of scien-
tific and industrial instrument cases. It maintains its prin-
cipal office and place of business in Port Jervis, New
York. Respondent annually sells scientific and industrial
instrument cases and other related goods and products
valued in excess of $50,000 directly to points located out-
side the State of New York.
Respondent admits and I find that it is, and has been at
all times material, engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
Local 1410, Amalgamated Clothing and Textile Work-
ers Union, AFL-CIO, CLC (Local 1410) is a local of the
Union and is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
The Union and Respondent were parties to a series of
collective-bargaining agreements, the most recent of
which was a 3-year contract covering 47 unit employees
from September 16, 1977, through September 15, 1980.
Although the parties commenced negotiations for a new
contract in August 1980, they were unable to reach
agreement before the old contract expired, whereupon
the Union struck the Company. All bargaining unit em-
ployees participated in the strike.
The parties continued to negotiate for a new contract
over the next 12-month period. At the same time, the
Respondent continued to operate its Port Jervis facility.
Initially, Respondent primarily relied on nonunit person-
nel to run its facility, although two permanent replace-
ments were hired by February 1981. During this time, as
a result of strike-discovered economies and a slowdown
in orders, Respondent found that it could operate with
18-25 unit employees.
By the spring of 1981, Respondent determined that it
was necessary to relieve its nonunit personnel and hire
permanent replacements for all unit positions. Advertise-
ments were placed in area newspapers beginning in April
1981, and Respondent hired 12 permanent replacements
in May, 6 each in June and July, 3 in August, and 4 in
September. By September 1981, due to normal attrition,
there were 19 permanent replacements who were em-
i There is no dispute as to the essential facts of this case Indeed, the
parties entered into a stipulation of fact (Jt Exh 1) Additionally, Re-
spondent elicited testimony from Frederic C. Leffler, an attorney who
represented Respondent during the course of collective-bargaining nego-
tiations with the Union
282 NLRB No. 143
BROOKS & PERKINS 977
ployed in bargaining unit positions . None of these' em-
ployees were prior Respondent employees or returning
strikers.
The permanent replacement ., had to cross the Union's
picket line when applying for work and, thereafter, on a
daily basis when entering and leaving work . Throughout
this period the pickets carried signs stating "On Strike
Local 1410." There is no evidence of any violence by
the strikers directed toward the replacements or Re-
spondent or any other evidence of unlawful conduct.
However , one striker was quoted as saying in a local
newspaper article on the , strike, "I wanted to kill those
guys." Additionally, the strikers frequently referred to
the replacements as "scabs." The replacements were sub-
jected to these, statements until the picket line was aban-
doned in late August 1981.
At no time when the permanent replacements were
hired or while they were working for Respondent did
any of the replacements demonstrate by any means to
Respondent the slightest interest or desire to be repre-
sented by the Union . There were no inquiries from the
replacements about the union membership or checkoff of
dues, nor were any authorization cards signed by any of
the replacements . Furthermore, none of the replacements
asked about union benefits , such as coverage under
health and welfare benefits , or under the Union's pension
plan. Indeed , the parties agree that the permanent re-
placements never expressed by any means any desire to
be represented by the Union.
However, there is also no evidence that any perma-
nent replacement indicated affirmatively , by any means,
that he did not want to be represented by the Union.
I. THE 1981 ,SPRING AND SUMMER BARGAINING
SESSIONS
Beginning on April 14, 1981, and through July 31,
1981 , the parties had nine bargaining sessions (April 15;
May 5, 14, and 27 ; June 11 , 22., and 30; July 22 and 31).
Representing Respondent at these sessions were Attor-
neys Joseph E. O'Leary and/or Frederic Leffler. Repre-
senting the Union were International Representative Jack
Coury and Business Agent Anthony Micelli, and the
Local` 1410 committee consisting of six members. The
sessions from April through July 1981 were conducted
with the assistance of the Federal Mediation and Concil-
iation Service.
On May 5, 1981 , during a bargaining session, the
Union presented its proposals to Respondent . These pro-
posals included a proposal that all strike replacements
hired after the strike commenced 'on September 15, 1980,
would be laid off, unless such strike replacements had
been hired into a supervisory or managerial position. The
replacements would be placed on a preferential hiring
list. In support of this bargaining position both Interna-
tional Representative Coury and members of the Local
1410 bargaining committee staled it would be "impossi-
ble" for them to go back to work with nonunion perma-
nent replacements.2 Respondent representatives rejected
' Throughout the course of bargaining , union representatives frequent-
ly referred to the strike replacements as "scabs " I attach no significance
to the use of this term The word "scab" is universally used and recog-
this ' proposal . Respondent representatives stated that as
of this date the Company had hired 7 permanent replace-
ments and 11 nonunion replacements and that they had
made a commitment to these employees that such jobs
would be "permanent." Respondent representatives again
informed the union representatives that as a result of
strike-discovered economies they required 18-25 unit po-
sitions, rather than the 47 unit positions existing just
prior to the strike.
On May 14, at the next bargaining session , Respondent
presented its proposals to the Union and explained them
line by line, and item by item.
On June 11, union representatives questioned Respond-
ent's no-strike proposal, which appeared to ,hold the
International Union responsible for the actions of local
union members . In response, Respondent representatives
stated that in light of the fact that their proposal and all
previous agreements were three-party agreements signed
by both the International and the local union, and in
light of the potential for violence once striking union em-
ployees returned to work beside the nonunion permanent
replacements, it was critical that the International be re-
sponsible for any actions - of its local members and that it
assist the Respondent in maintaining ' labor peace. At this
meeting , the union representatives repeated their bargain-
ing position that the permanent replacements be laid off
prior to striking employees returning to work . Further-
more, local committee members stated that they had to
bring an acceptable contract back to the members for
ratification or rejection before there could be an agree-
ment.
During the negotiations that took place on June 22 and
30 and July 10 and 22, the union representatives reiterat-
ed their demand that the strikers be reinstated and that
the replacements be laid off and placed on a preferential
hiring list. The union representatives made it clear that
their primary concern was that the strikers replace the
strike replacements . They did not care what Respondent
did with the replacements, but proposed they ' be placed
on a preferential 'hiring list as a bargaining position.
On July 31, the parties met again .3 At this meeting,
Respondent representatives made major concessions on
union security, the no -strike clause, and dues checkoff,
which were issues in dispute . Apparently most , if not all,
other items, except for the issue of the strike replace-
ments, had been resolved . In this connection, Jack
Coury, the Union's International representative , told Re-
spondent 's representatives that he would bring this pack-
age to the membership , for rejection or acceptance.
Coury expressed ',doubt that the membership would ap-
prove the package because of Respondent's position con-
cerning the strike replacements.
Later that night, at approximately 9 to 10 p.m., Jack
Coury telephoned Respondent 's attorneys , Leffler and
razed by union representatives, union members, and the public generally
as synonymous with a strike replacement It is defined by the dictionary
as "a workman who refused to join or act with a labor union, or who
takes a striker's place on the job " Random House College Dictionary
(1975)
s During the July bargaining sessions three out of six members of the
local committee attended these negotiations.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Leary, and advised them that the local membership
had rejected the contract proposals by a vote of 27 to 0.
Coury stated to both Leffler and O'Leary that the prob-
lem was the "permanent replacements," and that had
that problem been resolved, there would have been, in
his opinion, an agreement. Coury stated that he did not
know where to go from the point of rejection. Coury
told O'Leary that he would telephone O'Leary when he
returned from business the following week so that the
parties could "see where they could go" from there.
Sometime in late August the picket line was aban-
doned by the striking employees. In late August, Re-
spondent requested a bargaining session to be held on
September 3, 1981. Present at that session as a union rep-
resentative for the first time on behalf of the Union, was
Robert Redlow, union director- of the Mid-Hudson
Valley Joint Board. Jack Coury, Anthony Micelli, and
three Local committeemen, who had not appeared at any
prior negotiation sessions, were also present. No local of-
ficers were present. At this session, the Union officially
stated the results of the Local 1410 membership vote of
July 31, 1981, as a 27-0 rejection of Respondent's pro-
posals. Again at this session, Respondent explained to the
union representatives that there were only 25 unit posi-
tions because of reduced orders and strike-discovered
economies. The union representatives did not contest nor
object to this number.
Union Representative Redlow stated that there were
approximatley 25 strikers who would be interested in re-
instatement, and demanded to know how many positions
were available with Respondent. Respondent Attorney
Leffler explained that 19 positions were currently filled
by permanent replacements, leaving 6 positions open.
Redlow, responded that this was totally unacceptable.
Redlow proposed that Respondent retain, 9 of the re-
placements, but terminate the remaining 10, in order that
15 strikers could be reinstated. Respondent stated that it
could not agree to this proposal. Shortly thereafter, the
negotiation ended.
On September 10, 1981, Respondent received a letter
from the union pension fund stating that Respondent was
terminated from the fund on the basis that there was no
present contract between Respondent and the Union.
On September 10, Union Representative Redlow con-
tacted Respondent Attorney Leffler by telephone and
asked him if the July 31 proposals tentatively agreed on
were still viable. Leffler was unable to respond to Red-
low's inquiry without consulting with Respondent's offi-
cials . Redlow nevertheless informed Leffler that he was
going to accept the "contract," on behalf of the Union,
and that the International or the joint board was going
to force the Local to accept the contract. Leffler pointed
out that there were many outstanding issues that had
never been resolved by the parties, thus there was not a
complete set of proposals that could constitute a con-
tract, but that in any case he would have to contact the
Company to determine its position.4
4 The record does not indicate what, if any, issues were unresolved. It
would appear that had the union members voted to accept Respondent's
July 31 proposals, which included retaining the strike replacements, such
affirmative vote would have indicated acceptance of a contract
On September 16, 1981, Respondent Attorneys
O'Leary and Leffler received a mailgram from Redlow
reiterating the Union's desire to sign the contract that
had been proposed' to the Union and rejected by the
Local 1410 membership on July 31, 1981.
On September 17, 1981, Respondent sent a letter to the
Union stating that it would not sign a contract with the
Union and questioned its majority status. The letter set
forth six considerations as follows: (1) That as of late
August, striking employees abandoned their picketing ac-
tivity thus evidencing no hope of recall or reinstatement
and, by implication, abandoned their union affiliation; (2)
local -representatives failed to attend the September 3 ne-
gotiation; (3) Respondent's uncertainty as to Redlow's
status and his authority to accept a bargaining agreement
binding on the Local (Respondent contends that (2) and
(3) above, establish a clear and substantial break in rela-
tions between the Union and the Local and that the
Union no longer represented the interests of the Local);
(4) the duration of the strike was in excess of 1 year; (5)
the permanent replacement of striking employees; (6) a
substantial number of unit positions were eliminated. (Re-
spondent contends that (4) through (6) raise objective
considerations whether the Union represents any em-
ployees.)
II. ANALYSIS AND CONCLUSIONS
It is a well-settled principle that a certified union
enjoys an irrebutable presumption of majority status for
at least 1 year after certification. Ray Brooks v. NLRB,
348 U.S. 96, 98-104 (1954). After the expiration of the
certification year, the presumption of a union's majority
status continues, but becomes rebuttable. An -employer
may rebut this presumption by affirmatively establishing
that the union has, in fact, lost its majority status, or that
it had sufficient objective basis for reasonably doubting
the union's continuing majority status at the time that it
withdrew recognition from the union. Assertion of such
doubt, however, must be supported by objective consid-
erations. Laystrom Mfg. Co., 151 NLRB 1482 (1965).
Respondent in this case contends that it had an objec-
tive basis for doubting the Union's majority on Septem-
ber 17, 1981, the date it withdrew recognition. Respond-
ent's contention as set forth in its brief was that "the
Company reasonably doubted whether the Union repre-
sented the bargaining unit employees in light of the com-
plete turnover in unit positions due to the hiring of per-
manent replacements during an economic strike, the lack
of any expression of interest in Union representation by
the replacements, and the Union's antipathy, if not hostil-
ity toward the replacements and disavowal of any inter-
est in representing them." Respondent also cites the ces-
sation of picketing in late August 1981.
The stipulated facts establish that as of September 17,
1981, due to strike-related economies the unit position
had decreased from 47 to 25 positions. At the time rec-
ognition was withdrawn on September 17, 1981, Re-
spondent had hired 19 permanent replacements. Re-
spondent Attorney Leffler had informed Union Repre-
sentative Redlow during the September 3 negotiation
that there were six positions open. Therefore, although
BROOKS & PERKINS 979
there was substantial turnover, there was not complete
turnover . In this regard Union Representative Redlow
had advised Respondent Attorney Leffler during the
September 3 negotiation that there were 25 strikers inter-
ested in reinstatement.
Respondent contends there was a lack of any expres-
sion of union interest or union representation by replace-
ments based on the fact that the replacements crossed the
picket line.
The Board has consistently applied the presumption
that new employees are preswned to support the union
in the same ratio as those whom they have replaced.
Pennco, Inc., 250 NLRB 716 (1980); supplementing 242
NLRB 467 (1979 ); Windham Community Memorial Hospi-
tal, 230 NLRB 1070 (1977); Cutten Supermarket, 220
NLRB 507 (1975). Respondent contends that by crossing
the picket line the replacements expressed lack of any in-
terest in union representation. This contention was made
by the employer and rejected by the Board in the supple-
mental decision in Pennco, -Inc., 250 NLRB 716 at 717, in
which the Board stated:
Clearly, Respondent is in error if it is contending
that the presumption of majority status does not
apply in the event of a strike where strike replace-
ments and other new employees cross a picket
line.... Thus, adoption of Respondent's presump-
tion would allow an employer to withdraw recogni-
tion and eliminate a union as its employees ' repre-
sentative as soon as an economic strike commences
and a number of employees equivalent to the
number on strike are willing to cross a picket line.
Such an additional burden on the employees' right
to strike would effectively impair that right, and
disturb the delicate balance of competing weapons
which the Board and the courts have recognized in
the labor relations arena.
Further, the presumption that Respondent urges
us to, adopt is not a persuasive one. In this regard,
the Board has held , with court approval, that an
employee 's return to work during a strike does not
provide a reasonable basis for presuming that he has
repudiated the union as his bargaining representa-
tive.
The Board has also held with court approval that a re-
placement hired for a striking employee cannot, without
affirmative evidence , be presumed to reject the union as
his bargaining representative . Rogers Mfg. Co. v. NLRB,
486 F.2d 644 (6th Cir. 1973).
In the instant case, there is no affirmative evidence
that the striker replacements did not want union repre-
sentation. There is no evidence that a single replacement
indicated to Respondent that he did not want to be rep-
resented by the Union, much less a lawful poll of em-
ployees conducted by Respondent . Cf. Taft Broadcasting,
201 NLRB 801 (1973).
Respondent contends that the Union expressed such
hostility toward the strike replacements that amounted to
a disavowal of any interest in representing them. This
contention ' is based on the Union 's bargaining demand
that the strikers be reinstated and the replacements be
laid off and placed on a preferential hiring list. In the
first place, the Board has held that such bargaining
demand is a legitimate bargaining demand and a manda-
tory subject of bargaining . Portland Stereotypers ' & Elec-
trotypers Union 48 (Journal Publ. Co.), 137 NLRB 782,
786 (1962). See also Bio-Science Laboratories , 209 NLRB
796 (1974).' In fact, one would hardly expect the Union
to take any other position . However, there is no evi-
dence that the replacements were aware that the Union
was taking such bargaining position . Therefore, Re-
spondent could not have had objective considerations
that the replacements did not want the Union to repre-
sent them based on such bargaining position . Indeed, on
September 10, Union Representative Redlow informed
Respondent, Attorney Leffler that the Union was pre-
pared to accept Respondent 's July 31 proposals, which
included Respondent 's position that it woud not termi-
nate any of the replacements . This offer was confirmed
by mailgram on September 16. Therefore , a week before
Respondent withdrew recognition , the Union had ad-
vised Respondent it would execute a collective-bargain-
ing agreement covering the replacements.
Respondent further contends that the cessation of
picketing in late August was evidence that the strikers
had rejected the Union as bargaining representative or
that they had abandoned their interest, in reinstatement.
Such contention has been repeatedly rejected by the
Board . Pennco, Inc., 242 NLRB at 469 ; Cutten Supermar-
ket, supra; King Radio Corp., 208 NLRB 578 (1974), enfd.
510 F.2d 1154 (10th Cir . 1975).
Respondent contends that the Board, in Beacon Uphol-
stery Co., 226 NLRB 1360 (1976), held that an employer
lawfully withdrew recognition where the union sought
termination of replacements hired during an economic
strike and aligned itself solely with the interest of strik-
ing employees. However , in Beacon, supra, unlike in the
instant case, all the strikers had been lawfully discharged
by the employer. The Beacon decision rested on the
theory that because all strikers were lawfully discharged
prior to the withdrawal of recognition , there were no
striking employees. Under these circumstances the
Board , affirming the administrative law judge , concluded
the usual presumption concerning replacements did not
apply . Indeed, the Board in the original Pennco decision
(242 NLRB 467 at 469) distinguished Beacon . In this con-
nection the Board stated : "Unlike Beacon Upholstery,
supra... the unit composition has,' not been altered by
the lawful discharge of striking employees thus undercut-
ting the presumption of union majority support."
Respondent also contends that the Board, in Arkay
Packaging Corp ., 227 NLRB 397 (1976), held that an em-
ployer's withdrawal of recognition was lawfully predi-
cated on objective considerations when the unions failed
to demonstrate any interest in representing strike replace-
ments. However, the facts of Arkay are clearly distin-
guishable from the facts of the instant case. In Arkay the
employees represented by the unions in question during
the term of their collective-bargaining agreement refused
to cross the picket line of another , union engaged in a
strike against Arkay. The employer notified these unions
it would hire replacements, which it proceeded to do.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the unions made no effort to police their con-
tract or in any way contact the employer concerning
their position until some 7 months later when the con-
tracts expired and the unions requested negotiations for
new contracts. During this 7-month interval the employ-
ees who refused to cross the picket line did not contact
the employer to express any position concerning their
jobs. The Board refused to follow the usual presumption
described above in the Pennco cases, concluding that in
view of the failure of the unions to police or enforce
their collective-bargaining agreements regarding the re-
placements and. the absence and failure to, contact the
employer by the striking employees the unions had ap-,
parently abandoned the bargaining unit. However, the
Board recognized in Windham Community Memorial
Hospital, supra, the usual presumption concerning strike
replacements was inapplicable in Arkay, ". . . only be-
cause of the unique circumstance that the union had .. .
abandoned the bargaining unit."
In the instant case, unlike in Arkay, it cannot be argued
that the Union had abandoned the bargaining unit. Here
the collective-bargaining agreement had expired and the
unit employees were on strike. At all times following the
expiration of the bargaining agreement, the Union was
bargaining for a new agreement. Moreover, picketing
commenced following the expiration of the agreement
and continued until late August. Further, Respondent,
was advised by the Union on September 10 that 25 of
the strikers were interested in reinstatement. Therefore, it
cannot be argued that the Union abandoned the bargain-
ing unit and the Arkay rationale is clearly inapplicable.
Respondent also cites IT Corp., 263 NLRB 1183
(1982), as a case indistinguishable from the facts of the
instant case. I find this case' inapposite. In IT Corp.,
unlike the instant case, the union demanded that the re-
placements be terminated and the replacements were
aware of this demand: In the instant case, the replace-
ments were not aware of such demand. Moreover, it was
withdrawn before Respondent withdrew recognition.
Secondly,' the strikers in IT Corp. like in Beacon, but
unlike in the instant case were lawfully discharged, thus
critically altering the composition of the unit. Thirdly, in
IT Services, the strikers engaged in a continuous cam-
paign of threats and intimidation directed at the replace-
ments and perpetrated mass destruction of the replace-
ments' automobiles and company property. There is no
evidence of any threats, intimidation, or violence in the
instant case . And fourth, in IT Corp., a majority of the
replacements informed the employer they did not want
to be represented by the union. In the instant case there
is no evidence that any replacement, much less a majori-
ty, informed Respondent of such objection to union rep-
resentation.
Respondent also cites Peoples Gas System, 214 NLRB
944 (1974), as authority for withdrawal of recognition
based on a combination of large employee turnover
during the course of a 3-year contract, declining union
interest and a sudden shifting by the union in collective-
bargaining negotiations from a rejection of the employ-
er's proposals to acceptance thereof. However, the
United States Court of Appeals for the District of Co-
lumbia reversed and remanded the case to the Board for
"reconsideration and rearticulation of its decision."
Teamsters Local 769 v. NLRB, 532 F.2d 1385 (D.C. Cir.
1976). On reconsideration, the Board reversed its prior
decision and concluded that the employer did not have
valid objective considerations for doubting the union's
majority status and thus violated Section 8(a)(1) and (5)
when it withdrew recognition.
Moreover, notwithstanding the Board's reversal of its
prior decision cited by Respondent, it is clear that the
facts of Peoples Gas are not at all similar or related to the
facts of the instant case.
In the first place, Peoples Gas did not involve a strike
situation in which strike replacements were hired.
Rather, it involved a withdrawal of recognition during
collective-bargaining negotiations based on substantial
employee turnover during the past 3-year period coupled
with decreasing checkoff authorization and the union's
sudden shift in bargaining position from a position where
it rejected all the employer's proposals to one where it
would sign any contract the employer would submit.
The Board, in its supplemental decision, concluded that
the combination of employee turnover and declining
checkoff authorizations was insufficient to , rebut the
usual presumption that new employees .support the union
to the same -extent as existing unit members. In connec-
tion with the union's drastic switch in bargaining pos-
ture, the Board concluded the "implications to be drawn
from such bargaining conduct are essentially subjective
in nature , rather than objective." Moreover, in the in-
stant case, unlike in Peoples Gas, agreement had been
reached on virtually all terms except for Respondent's
proposal concerning the strike replacements. In fact,
during the- July 31 bargaining session it was Respondent
who made major concessions on crucial items such as
union security, a no-strike clause, and checkoff authori-
zations. The Union's change of position in the instant
case was limited to accepting Respondent's proposal con-
cerning the. strike replacements.
I conclude the facts of this case to be indistinguishable
from the facts of the Pennco decisions and that the Board
law as set forth in the Pennco decisions represents the
current Board law applicable to the instant case. To
accept Respondent's considerations for its withdrawal of
recognition as sufficient "objective considerations"
within the meaning of the Laystrom Mfg. Co., supra, ra-
tionale would, as the Board sets forth in its supplemental
Pennco decision
allow an employer to withdraw recognition and
eliminate a union as its employees' representative as
soon as an economic strike commences and a
number of employees equivalent to the number on
strike are willing to cross a picket line. Such an ad-
ditional burden on the employees' right to strike
would effectively impair that right, and disturb the
delicate balance of competing weapons which the
Board and the courts have recognized in the labor
relations arena.
Respondent additionally contends that the fact that
Local representatives failed to attend the September 3
negotiations and Respondent's uncertainty as to Union
BROOKS & PERKINS
Representative Redlow's status and: authority to accept
and bind the Local established a break in relations be-
tween the Union and, its Local and Respondent ques-
tioned whether the Union represented the interests of the
Local.
The Board law is clear that the decision as to who will
serve as the bargaining representatives for, the Union and
how they are selected rests entirely with the Union, and
the Respondent must bargain with those representatives
the Union places at the bargaining table. Florida Ambu-
lance Service, 258' NLRB 459 (1981); Proctor & Gamble
Mfg. Co., 248 NLRB 953, 972 (1980); Indiana & Michi-
gan Electric Co., 235 NLRB 1118 (1978), supplementing
229 NLRB 576, enfd. 599 F.2d 185 (7th Cir. 1979).
Moreover, as to the question of whether the Union had
the authority to bind the local to a collective- bargaining
agreement, the Board has long held such matters are in-
ternal union matters that an employer cannot question.
Electra-Food Machinery, 241 NLRB 1232 (1979). M & M
Oldsmobile, Inc., 156 NLRB 903 (1966). Accordingly, I
find no merit to Respondent's contentions concerning
these issues.
Based on the above analysis, I conclude that Respond-
ent did not have sufficient objective considerations for
doubting the Union's majority status, and I therefore fur-
ther conclude that by withdrawing recognition from the
Union on September 17, 1981, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
There is no question but that from the inception of the
strike on September 15, 1980, until September 16, 1981,
the strike was an economic strike. The General Counsel
contends that from September 17, 1981, at which time
Respondent withdrew recognition from the Union, the
strike was converted to an unfair labor practice strike as
a result of such unlawful withdrawal of recognition. The
Board has invariably concluded that the unlawful,-with-
drawal of recognition prolongs a dispute and thus con-
verts an economic strike into an unfair labor practice
strike. Cantor Bros., 203 NLRB 774 (1973); Top Mfg.' Co.,
230 NLRB 937 (1977), affd. 594 F.2d 223 (9th Cir. 1979);
Automated Plastic Molding Co., 234 NLRB 681 (1978);
Connecticut Distributors,-255 NLRB 1255 (1981).
Accordingly, I conclude that as a result of Respond-
ent's unlawful withdrawal of recognition on September
17, 1981, the economic strike was converted into an
unfair labor' practice strike.
CONCLUSIONS OF LAW
ll. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and its Local, Local 1410, are labor or-
ganizations within the meaning of Section 2(5) of the
Act.
3. The appropriate unit for the purposes of the collec-
tive bargaining within the meaning of Section 9(b) of the
Act is:
All production and maintenance employees em-
ployed at Respondent's plant at River Road, Port
Jervis, New York, excluding all professional em-
ployees, plant and office clerical employees, super-
visors, timekeepers, time study persons, guards and
981
confidential and managerial employees as defined in
the Act.
4. At all times material herein the Union and its Local
have been and are the exclusive representatives of all the
employees in the above-described unit for the purposes
of collective bargaining within the meaning of Section
9(a) and Section 8(a)(5) of the Act.
5. Since about September 17, 1981, and continuing to
date, by refusing to recognize and bargain with the
Union and its Local, concerning a collective-bargaining
agreement, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The strike that commenced on September 15, 1980,
was converted to an unfair labor practice strike on Sep-
tember 17, 1981-the date Respondent unlawfully with-
drew recognition and refused to bargain with the Union,
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom- and take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the
Act, I recommend that it cease and desist therefrom and,
on request, recognize and bargain collectively with the
Union and its Local as the exclusive representative of its
employees in the appropriate unit.
Having found that Respondent's refusal to bargain
with the Union converted the strike to an unfair labor
practice strike on September =17; 1981, I shall recommend
that all striking employees who were not permanently
replaced before that date be, reinstated, on their uncondi-
tional request, to their former jobs or, if such positions
no longer- exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges previously enjoyed, discharging, if necessary,
any replacements hired after September, 17, 1981; and
that it make whole such employees for any loss of earn-
ings resulting from its failure to reinstate them within 5
days of their unconditional request, with interest thereon
to be computed in accordance with Florida Steel Corp.,
231 NLRB 651 (1977).5 Such employees for whom no
employment is immediately available shall be placed on a
preferential 'hiring list for, employment as positions
become available and before other persons are hired for
such work. Priority for placement 'on such list is to be
determined by seniority or some other nondiscriminatory
test.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
See generally Isis Plumbing Co, 138 NLRB 716 (1962).
s If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Continued
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Skydyne Division of Brooks & Perkins, Incorporated,
Port Jervis, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC (the Union) and its Local 1410 as the
exclusive bargaining representative of the employees in
the following appropriate unit:
All production and maintenance employees em-
ployed at Respondent's plant at River Road, Port
Jervis, New York, excluding all professional em-
ployees, plant and office clerical employees, super-
visors, timekeepers, time study persons, guards and
confidential and managerial employees as defined in
the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing its 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) On request, bargain collectively in good faith with
the Union and its Local as the exclusive bargaining rep-
resentative of the employees in the appropriate unit de-
scribed above concerning rates of pay, wages, hours, or
other terms and conditions of employment and, if any
agreement is reached, embody it in a signed contract.
(b) Reinstate, on unconditional request, all strikers
who were not permanently replaced before September
17, 1981, to their former jobs or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, discharging, if necessary, any re-
placements hired after September 17, 1981; and make
such employees whole for any loss of earnings resulting
from its failure to reinstate them within 5 days of their
unconditional request in the manner set forth in the
remedy section of this decision. Such employees for
whom no employment is available shall be placed on a
preferential hiring list based on seniority, or some other
nondiscriminatory test, for employment as jobs become
available.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its place in Port Jervis, New York, copies
of the attached notice marked "Appendix."'' Copies of
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
7 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. '
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain collec-
tively with Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC (the Union) and its Local 1410
as the exclusive bargaining representative of our employ-
ees in the following appropriate unit:
All production and maintenance employees em-
ployed at Respondent 's plant at River Road, Port
Jervis, New York, excluding all professional em-
ployees, plant and office clerical employees, super-
visors, timekeepers, time study persons, guards and
confidential and managerial employees as defined in
the Act.
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, on request, bargain collectively in good
faith with the Union and its Local, as the exclusive bar-
gaining representative of our employees in the appropri-
ate unit described' above, concerning rates of pay , wages,
hours, or other terms and conditions of employment and,
if any agreement is reached, embody it in a signed con-
tract.
WE WILL reinstate, on unconditional request, all strik-
ers who were not permanently replaced before Septem-
ber 17, 1981, to their former jobs or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
previously enjoyed, discharging, if necessary, any re-
placements hired after September 17, 1981; and make
such employees whole for any loss of earnings resulting
from our failure to reinstate them within 5 days of their
unconditional request in the manner set forth in the
remedy section of this decision. Such employees for
whom no employment is available shall be placed on a
preferential hiring list based on seniority, or some other
BROOKS & PERKINS 983
nondiscriminatory test, for employment as jobs become
available.
SKYDYNE DIVISION OF BROOKS & PER-
KINS, INCORPORATED