Chelsea Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1648 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1648
Chelsea Industries, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–
CIO. Cases 7–CA–36846 and 7–CA–37016
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, AND HURTGEN
The issue presented by this case is whether, under the
National Labor Relations Act, an employer has the right,
after expiration of the certification year, to withdraw
recognition from a union on the basis of an antiunion
petition circulated and presented to the employer during
the certification year.1 Contrary to the judge, we hold,
for the reasons set forth below, that an employer has no
such right.2
The stipulated facts, as more fully set forth in the
judge’s decision, are as follows. In brief, on April 8,
1993, the Union was certified as the exclusive collective-
bargaining representative of the employees in an appro-
priate unit. On November 15, 1993, the Board issued a
Decision and Order3 granting the General Counsel’s Mo-
tion for Summary Judgment and finding that the Respon-
dent violated Section 8(a)(5) and (1) by refusing to bar-
gain with the Union in order to test the Union’s certifica-
tion of representative. The Board ordered the Respon-
dent to bargain with the Union. On February 3, 1994, the
Respondent and the Union began negotiating for a col-
lective-bargaining agreement, thus commencing the cer-
tification year.4
On February 9, 1995, the Respondent withdrew recog-
nition from the Union. Although the parties’ negotia-
tions continued until that time, they had not reached
agreement on an initial collective-bargaining agreement.
In withdrawing recognition, the Respondent relied on a
petition employees presented to it on November 21,
1994, which read: “We the undersigned employees of
Chelsea Ind. do not want to be represented by the
UAW.” Employees circulated the petition on November
18 and 19, 1994, and the number of signatures on it rep-
resented a majority of the employees in the unit as of
February 9, 1995. At the time of the withdrawal of rec-
ognition, there existed no unremedied unfair labor prac-
tice charges against the Respondent. Thereafter, on
March 6, 1995, the Respondent unilaterally granted a
wage increase to the bargaining unit employees.

1 On September 29, 1995, Administrative Law Judge Robert A.
Giannasi issued the attached decision. The General Counsel and the
Charging Party each filed exceptions and a supporting brief, and the
Respondent filed an answering brief and request for oral argument.
2 On April 13, 1998, the Board issued a notice and invitation to file
briefs in this case and Levitz, Case 20–CA–26596. That notice sought
supplemental briefing by the parties in these proceedings, as well as
interested amici, to address whether the Board should overrule Cela-
nese Corp. of America, 95 NLRB 664 (1951), to the extent that it per-
mits an employer to withdraw recognition from an incumbent union
based on a reasonably grounded, good-faith doubt that the union enjoys
majority support among bargaining unit employees, and various atten-
dant issues.
In light of the age of this case and in order to avoid further delay, we
have decided to leave the Celanese and subsidiary issues raised in the
Board’s April 13, 1998 notice to be addressed in Levitz.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
3 Chelsea Industries, 312 NLRB No. 191 (1993) (unpublished).
4 The parties’ stipulation is consistent with Board law, which holds
that “absent unwarranted delay by the union, the certification year after
an employer’s initial refusal to bargain commences on the date of the
parties’ first bargaining session.” Van Dorn Plastic Machinery Co.,
300 NLRB 278, 279 (1990) (applying the principles of Mar-Jac Poul-
try Co., 136 NLRB 785 (1962), enfd. 939 F.2d 402 (6th Cir. 1991)).
On these facts, the judge recommended dismissal of
the complaint allegations that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union and by unilaterally granting em-
ployees a wage increase. Although the judge recognized
that “the challenge to the Union’s majority occurred
within the certification year and thus had the potential of
rendering further bargaining within that year meaning-
less,” he nevertheless concluded, based on his analysis of
Board precedent, that an employer may lawfully with-
draw recognition outside the certification year based on
evidence secured within the year. Specifically, the judge
found that United Supermarkets, 287 NLRB 119, 120
(1987), enfd. 862 F.2d 549 (5th Cir. 1989), the main case
relied on by the General Counsel and the Union, was
“undermine[d]” by “[o]ther cases.”
In their exceptions, the General Counsel and the Union
contend, inter alia, that United Supermarkets is still good
law. As explained below, we find merit in these excep-
tions.
To foster collective bargaining and industrial stability,
the Board has long held that a certified union’s majority
status ordinarily cannot be challenged for a period of 1
year. E.g., Centr-O-Cast & Engineering Co., 100 NLRB
1507, 1508 (1952). If a representation petition is filed
before the end of the certification year, the Board will
dismiss it because “the mere retention on file of such
petitions, although unprocessed, cannot but detract from
the full import of a Board certification, which should be
permitted to run its complete 1-year course before any
question of the representative status of the certified union
is given formal cognizance by the Board.” Id. at 1508–
1509.
In Brooks v. NLRB, 348 U.S. 96 (1954), the Supreme
Court approved the Board’s requirement that, absent un-
usual circumstances, an employer must recognize the
union for the entire certification year, even if it is pre-
sented with evidence of the union’s loss of majority.5 As
the Court explained in Brooks, the certification-year rule
5 Three types of “unusual circumstances” have been recognized: de-
functness of the certified union, schism within the certified union, and
radical fluctuation in the size of the bargaining unit. 348 U.S. at 98.
No such “unusual circumstances” are present here.
331 NLRB No. 184
CHELSEA INDUSTRIES 1649
is intended, among other things, to give a union “ample
time for carrying out its mandate on behalf of its mem-
bers [without] be[ing] under exigent pressures to produce
hothouse results or be turned out.” 348 U.S. at 100. In
addition, the rule is intended to deter an employer from
violating its duty to bargain: “It is scarcely conducive to
bargaining in good faith for an employer to know that, if
he dillydallies or subtly undermines, union strength may
erode and thereby relieve him of his statutory duties at
any time. . . .” Id. In short, the Court held that the
“underlying purpose of this statute is industrial peace,”
348 U.S. at 103, and that the Board’s certification-year
rule advances that goal.
Both Centr-O-Cast and Brooks were relied on in
United Supermarkets, supra. In that case, the respondent
withdrew recognition from the union after the certifica-
tion year expired based on a petition it received during
the certification year that showed that approximately 90
percent of the unit employees did not support the union.
At the time it received the petition, the respondent had
not remedied the serious unfair labor practices it had
committed several years earlier.
The Board’s decision contained two central holdings.
The Board cited Brooks for the proposition that “a un-
ion’s majority status cannot be challenged within its cer-
tification year.” 287 NLRB at 120. The Board cited
Centr-O-Cast for the proposition that “[s]o strictly has
the Board held to the conclusive nature of a newly certi-
fied union’s unchallenged status that it will dismiss rep-
resentation petitions filed” during the certification year.
Id. The Board then held as follows: “We believe that just
as the petition could not raise a question concerning rep-
resentation nor be acted on by the Respondent within the
certification year, the Respondent cannot subsequently
rely on it to justify a . . . withdrawal of recognition” out-
side the certification year. Id. In addition, the United
Supermarkets Board held that the employee petition
could not be relied on because it was tainted by the em-
ployer’s unfair labor practices. For both of these rea-
sons, i.e., “the timing” of the petition (during the certifi-
cation year) and “the circumstances existing when the . . .
petition arose” (the unremedied unfair labor practices),
the Board gave no effect to the employee petition and
concluded that the employer’s withdrawal of recognition
violated the Act. Id.
Thereafter, the respondent filed a petition for review
with the Fifth Circuit. United Supermarkets v. NLRB,
862 F.2d 549 (1989). The court affirmed the Board’s
decision and expressly agreed with both of the Board’s
holdings. With regard to the Board’s first holding, the
court stated (862 F.2d at 553):

[T]o give weight to this decertification petition would
defeat the policy behind the special status given a union
during the certification year. A union needs to be given
a reasonable time to prove its worth to the employees
without added pressure from the employer. See
Brooks, 348 U.S. at 100.

In addition, the court agreed with the Board’s second hold-
ing that the petition was tainted by the employer’s own
unlawful conduct. Accordingly, the court upheld the
Board’s determination that the employer violated Section
8(a)(5) of the Act by withdrawing recognition from the un-
ion.
We agree with the General Counsel and the Union that
United Supermarkets is dispositive of the issue before
us.6 As discussed above, both the Board and the court
squarely held that an employer may not withdraw recog-
nition outside the certification year on the basis of evi-
dence of loss of majority acquired within the certification
year. That holding applies with equal force here, where
the Respondent defends its withdrawal of recognition on
the basis of a petition it received during the 10th month
of the certification year. Of course, unlike United Su-
permarkets, the instant case does not involve an em-
ployee petition that was tainted by employer unfair labor
practices. Therefore, what we have termed the second
holding in United Supermarkets is not relevant here. But
that distinction between the two cases in no way dimin-
ishes the applicability of the first holding of the United
Supermarkets Board and court that, under Brooks, a cer-
tified union’s majority status may not be directly chal-
lenged by an employer on the basis of an employee peti-
tion submitted during the certification year.
We now turn to consider Rock-Tenn Co., 315 NLRB
670 (1994), enfd. 69 F.3d 803 (7th Cir. 1995), the case
that the judge believed undermined United Supermar-
kets. Rock-Tenn involved an employer withdrawal of
recognition at the end of the certification year based in
part on an employee petition circulated 3 months after
the union was certified. Carefully analyzing the Board
and court opinions in United Supermarkets, the Rock-
Tenn judge correctly stated that the two holdings of
United Supermarkets “stand independent” of each other.
315 NLRB at 679. Relying on what we have termed the
first holding of United Supermarkets, the Rock-Tenn
judge concluded that the certification-year petition was
“so premature as to render it irrelevant.” Id. In affirming
the judge, the Rock-Tenn Board did not express any dis-

6 Contrary to the Respondent’s assertions, the Board’s holding in
Hinde & Dauche Paper Co., 104 NLRB 847 (1953), does not authorize
an employer to withdraw recognition after the expiration of the certifi-
cation year based on an employee decertification petition received
during the certification year. In that case, there was no 8(a)(5) with-
drawal-of-recognition allegation, nor was there any indication that the
respondent actually withdrew recognition after the certification year
expired. Similarly, in Suzy Curtains, Inc., 309 NLRB 1287 (1992), also
relied on by the Respondent, there was no allegation that the respondent
unlawfully withdrew recognition from the union after expiration of the
certification year. Rather, each case addresses the issue of whether the
respondent unlawfully proposed that the duration of the collective-
bargaining agreement be coextensive with the certification year. Be-
cause that issue is not presented here, we do not pass on it in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1650
agreement with the judge’s reliance on United Super-
markets. In fact, the Board specifically stated that it
agreed with the judge that the employee petition “was
premature” and “cannot be relied upon as evidence of the
Union’s loss of majority support.” 315 NLRB at 672.
The Rock-Tenn Board also addressed an issue not pre-
sent here, i.e., whether the respondent violated Section
8(a)(5) by announcing during the certification year that it
would withdraw recognition from the union at the end of
the certification year and would not bargain with the un-
ion for a successor agreement. In finding that the respon-
dent had violated the Act, the Board applied the stan-
dards established for determining the legality of an “an-
ticipatory withdrawal of recognition.” In this connec-
tion, the Board quoted from Abbey Medical/Abbey Rents,
264 NLRB 969 (1982), enfd. 709 F.2d 1514 (2d Cir.
1983), as follows:
Such an “anticipatory withdrawal of recognition”
in relation to a future contract is lawful if and only if
the employer can demonstrate that, on the date of
withdrawal and in a context free of unfair labor prac-
tices, the union in fact had lost its majority status, or
respondent’s withdrawal of recognition was predi-
cated on a reasonable doubt based on objective con-
siderations of the union’s majority status.7
In sum, Rock-Tenn contains two legal theories that are
in conflict. As the judge here recognized, under the
United Supermarkets theory, “an employer cannot with-
draw recognition outside the certification year based on
evidence within the year”; whereas under the “anticipa-
tory withdrawal of recognition” theory, “an employer
may lawfully announce an intent to withdraw recognition
after the end of the certification year, based on evidence
within the year.” The Rock-Tenn Board failed to ac-
knowledge this inconsistency in its decision.
In view of the judge’s comment that Rock-Tenn un-
dermined United Supermarkets, this case presents the
Board with an appropriate opportunity to reexamine and
clarify Rock-Tenn. For the reasons discussed below, we
conclude that Rock-Tenn erroneously relied on the Abbey
Medical “anticipatory withdrawal of recognition” prece-
dent.
In Rock-Tenn, the anticipatory withdrawal of recogni-
tion occurred during the certification year; by contrast, in
the Abbey Medical line of cases cited in Rock-Tenn, the
anticipatory withdrawal of recognition occurred during
the term of a collective-bargaining agreement and in the
context of an established bargaining relationship.8 Al-

7 The other “anticipatory withdrawal of recognition” cases cited in
Rock-Tenn are Wilshire Foam Products, 282 NLRB 1137 (1987), and
R.J.B. Knits, 309 NLRB 201 (1992).
8 In Abbey Medical, the union was recognized in 1972; the with-
drawal of recognition occurred in 1980. In Wilshire Foam, the parties
had a 20-year bargaining history before recognition was withdrawn. In
R.J.B. Knits, the union was recognized in 1988; the withdrawal of rec-
ognition occurred in 1992.
though both challenges occurred during times when the
union’s majority status is ordinarily presumed to be irre-
butable, there are important differences between the two
situations. As the facts of this case illustrate, in the first
year following the union’s certification, negotiations often
commence in the aftermath of a contested representation
proceeding. When the parties appear at the negotiating
table during the certification year, they must attempt to
put their differences behind them and forge a new bar-
gaining relationship. The difficulty of their undertaking is
complicated by the fact that they are negotiating for the
first time without any prior contract or experience to
guide them. See, e.g., Ford Center for the Performing
Arts, 328 NLRB 1 (1999). Therefore, the need is great
for an insular period in which the bargaining relationship
can stabilize and succeed free from distraction. Permit-
ting an employer to “anticipatorily” challenge the union’s
majority before the full 12 months have elapsed violates
the very purposes of the certification-year rule as ex-
plained in Brooks: a union would be placed under “exi-
gent pressures to produce hothouse results or be turned
out” and an employer would “know that, if he dillydallies
or subtly undermines, union strength may erode and
thereby relieve him of his statutory duties. . . .” 348 U.S.
at 100.
Significantly, in the years following the Board’s 1987
decision in United Supermarkets, Rock-Tenn is the only
case where the Board has applied the “anticipatory with-
drawal of recognition” theory in the context of the certi-
fication year. Thus, Rock-Tenn is questionable precedent
for applying the theory in certification-year cases.
In short, to the extent that Rock-Tenn extended the Ab-
bey Medical line of case law to situations involving the
certification year, Rock-Tenn must be regarded as an
aberration that is in conflict not only with the Board’s
prior decision in United Supermarkets (on which Rock-
Tenn itself relied), but also with the Supreme Court’s
historic decision in Brooks. Accordingly, we overrule
Rock-Tenn to the extent that it suggests that, based on
evidence received during the certification year, an em-
ployer may announce that it intends to withdraw recogni-
tion from the union at the end of the certification year.
In light of the foregoing, we hold that United Super-
markets is the precedent that governs this case.9 Under
9 Nothing in United Supermarkets or our decision here undermines
the Board’s practice of permitting a showing of interest collected dur-
ing the certification year to be used to support an election petition filed
outside the certification year. Further, that practice does not support
the Respondent’s position here for two reasons. First, an election based
on a showing of interest collected during the certification year would
nonetheless be held outside the certification year. The actual test of the
union’s majority status, therefore, would occur after the certification
year had expired. In contrast, the Respondent’s withdrawal of recogni-
tion in this case is based on evidence concerning the Union’s majority
status that arose during the certification year. Second, the Supreme
Court has repeatedly held that it is appropriate for the Board to distin-
guish between employees voting to reject a union in an election, on the
one hand, and an “employer relying on employee rights in refusing to
CHELSEA INDUSTRIES 1651
United Supermarkets, an employer may not withdraw
recognition from a union outside of the certification year
based on evidence received within the certification
year.10 Therefore, the Respondent’s February 9, 1995
withdrawal of recognition was unlawful, and it further
violated Section 8(a)(5) by unilaterally granting a wage
increase to the unit employees on March 6, 1995.
ORDER
The National Labor Relations Board orders that the
Respondent, Chelsea Industries, Inc., Chelsea, Michigan,
its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Unlawfully withdrawing recognition from Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW), AFL–
CIO, the Union, and refusing to bargain with it as the
exclusive collective-bargaining representative of the em-
ployees employed in the unit described below in para-
graph 2(a).
(b) Unilaterally granting bargaining unit employees a
wage increase without notice to or bargaining with the
Union as the exclusive collective-bargaining representa-
tive of the employees employed in the bargaining unit
described below.
(c) 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 with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees, shipping and receiving em-
ployees, quality control employees employed by Re-
spondent at its facility located at 320 North Main,
Chelsea, Michigan; but excluding all office clerical
employees, guards and supervisors as defined in the
Act.
(b) On the specific request of the Union, rescind the
wage increase that was granted March 6, 1995.
(c) Within 14 days after service by the Region, post at
its Chelsea, Michigan facility, copies of the attached no-

bargain” on the other hand. See Auciello Iron Works, 517 U.S. 781,
790 (1996); Fall River Dyeing & Finishing Corp., 482 U.S. 27, 50
fn.16 (1987); and Brooks v. NLRB, 348 U.S. at 103.
10 To the extent that earlier cases such as Vulcan Steel Tank Corp.,
106 NLRB 1278 (1953), and Grace and Hornbrook Mfg., 225 NLRB
15 (1976), suggest that an employer can withdraw recognition at the
end of the certification year based on evidence received during that
year, they did not survive United Supermarkets, and we explicitly over-
rule them today.
tice marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 9, 1995.
(d) 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.

MEMBER HURTGEN, dissenting.
Unlike my colleagues, I find that the Respondent law-
fully withdrew recognition from the Union. I would
therefore dismiss the complaint.
On November 21, 1994, i.e., 9-1/2 months into the cer-
tification year, Respondent received a petition signed by
a majority of the employees. The petition said that these
employees did not wish to be represented by the Union.
The petition was untainted by any misconduct by the
Respondent. Respondent did not act on the petition until
February 9, 1995, i.e., after the end of the certification
year. Respondent withdrew recognition at that time.
In sum, Respondent received an untainted petition af-
ter 9-1/2 months of bargaining. Respondent obviously
knew that it could not withdraw recognition at that point,
and Respondent did not do so. There is no suggestion
that the petition-signers changed their minds in the next
2-½ months. Thus, at the critical time, i.e., at the time of
the withdrawal of recognition, Respondent had a good-
faith doubt, i.e., an uncertainty, as to whether the Union
continued to represent a majority.1 Accordingly, such
withdrawal was not unlawful.
My position is supported by Rock-Tenn, 315 NLRB
670 (1994), enfd. 69 F.3d 803 (7th Cir. 1995). In that
case, the Board clearly stated that “an employer may
lawfully announce an intent to withdraw recognition af-
ter the end of the certification year, based on evidence
within that year.” Clearly, if the employer can announce
that it will do so, it can proceed to do so after the end of
11 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.”
1 Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359
(1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1652
the certification year. My colleagues effectively concede
that Rock-Tenn requires dismissal of the allegations in
this case. They therefore overrule that case. In addition,
because still other cases would require dismissal herein,
they overrule those cases as well.2
In addition, even if Rock-Tenn is overruled, that would
simply mean that an employer cannot announce during
the certification year that it will withdraw recognition
after that year. However, Respondent herein made no
such announcement. Thus, there did not exist the sup-
posed danger that such an announcement would disrupt
bargaining during that year.
In overruling Rock-Tenn, my colleagues say that it is
inconsistent with United Supermarkets. In my view, the
cases are not inconsistent. United Supermarkets is dis-
tinguishable from Rock-Tenn and from the instant case.
It is true, as my colleagues point out, that the Board, in
the circumstances of United Supermarkets, stated that the
respondent could not rely on the petition presented dur-
ing the certification year to justify a later withdrawal of
recognition. However, the United Supermarkets Board
immediately went on to find that the underlying expres-
sion of nonsupport for the union was itself unreliable as
an indicator of uncoerced employee sentiment because it
arose when the respondent had not yet fully remedied its
many unfair labor practices. Indeed, the Board said that
this latter factor was “[m]ore significant” than the un-
timeliness of the petition. United Supermarkets, supra at
120. In concluding that the respondent had acted unlaw-
fully, the Board cited “the timing and the circumstances
existing when the decertification petition arose—during
the certification year and while the Respondent continued
to delay taking remedial action for its own unlawful
prior actions . . . .” Id. (emphasis added).
Thus, the Board’s holding in United Supermarkets was
that an employer cannot lawfully withdraw recognition
from a Union based on a petition filed during the certifi-
cation year in a context of unremedied unfair labor prac-
tices. Further, in affirming the Board, the Fifth Circuit
emphasized, inter alia, that the respondent’s unremedied
serious unfair labor practices tended to interfere with the
free exercise of employee rights at the time of the peti-
tion.
Thus, the critical inquiry is whether there is a doubt on
the date of withdrawal of recognition. Clearly, there was
such a doubt, i.e., uncertainty, in this case. The employ-
ees had recently expressed their desire not to be repre-
sented, and they had not recanted that expression.
In sum, in the instant case, the Respondent, in a con-
text free of unfair labor practices, relied on an untainted
petition, clearly not stale, signed by a majority of unit
employees. Contrary to my colleagues, I do not read
current Board law as proscribing the Respondent’s with-

2 Vulcan Steel Tank Corp., 106 NLRB 128 (1953); and Grace &
Hornbrook Mfg., 225 NLRB 15 (1976).
drawal of recognition simply because the petition that it
relied on appeared during the certification year. The
Respondent acted appropriately by allowing the full cer-
tification year to expire before withdrawing recognition.
That action was lawful and in accord with the Section 7
choice of the employees.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unlawfully withdraw recognition
from International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), AFL–CIO and unlawfully refuse to bargain with
it as the exclusive collective-bargaining representative of
the employees employed in the bargaining unit described
below.
WE WILL NOT unilaterally grant bargaining unit em-
ployees a wage increase without notice to or bargaining
with the Union as the exclusive collective-bargaining
representative of the employees employed in the bargain-
ing unit described below.
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 the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the bargaining unit:
All full-time and regular part-time production and
maintenance employees, shipping and receiving em-
ployees, quality control employees employed by Re-
spondent at its facility located at 320 North Main,
Chelsea, Michigan; but excluding all office clerical
employees, guards and supervisors as defined in the
Act.
WE WILL, on the specific request of the Union, re-
scind the wage increase that was granted March 6, 1995.
CHELSEA INDUSTRIES, INC.
CHELSEA INDUSTRIES 1653
Ellen Rosenthal, Esq., for the General Counsel.
Susan T. Teff, Esq. and Steven J. Fishman, Esq., of Bloomfield Hills, Michigan, for the Re-
spondent.
John G. Adam, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case was submitted to the
Judges Division on August 1, 1995, pursuant to a stipulation that waived a hearing before an
administrative law judge. It was thereafter assigned to me to issue a decision. The complaint
alleges that Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition
from the Charging Party Union and thereafter making unilateral changes by granting employees
a wage increase without affording the Union an opportunity to bargain. The Respondent filed
an answer denying the essential allegations in the complaint. The parties filed briefs, which I
have received, read and considered.
Based on the formal documents, the stipulation of the parties and the stipulated record here,
I make the following
FINDINGS OF FACT
A. The Stipulated Facts
The stipulation of facts in this case reads as follows:
1. (a) The charge in Case 7–CA–36846 was filed by the Charging Party on February 15,
1995, and a copy was served by certified mail on Respondent on February 17, 1995.
(b) The charge in Case 7–CA–37016 was filed by the Charging Party on March 24, 1995,
and a copy was served by certified mail on Respondent on or about March 27, 1995.
2. At all material times Respondent, a corporation, with an office and place of business in
Chelsea, Michigan (Respondent’s Chelsea facility), has been engaged in the manufacture,
nonretail sale, and distribution of straightened cut wire and related products.
3. During the calendar year ending December 31, 1994, Respondent, in conducting its busi-
ness operations described above in paragraph 2, purchased and received at its Chelsea facility,
goods and materials valued in excess of $50,000, which goods and materials were shipped to
Respondent’s facility directly from points outside the State of Michigan.
4. At all materials times Respondent has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
5. At all material times the Charging Party has been a labor organization within the mean-
ing of Section 2(5) of the Act.
6. At all material times the following individuals held the positions set forth opposite their
respective names and have been supervisors of Respondent within the meaning of Section 2(11)
of the Act and its agents within the meaning of Section 2(3) of the Act:

Ron Thompson President
Dana Jenick Director of Human Resources

7. The following employees of Respondent (the unit) constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9(b) of the Act:

All full-time and regular part-time production and maintenance employees, shipping and receiv-
ing employees, quality control employees employed by Respondent at its facility located at 320
North Main, Chelsea, Michigan; but excluding all office clerical employees, guards and super-
visors as defined in the Act.

8. On October 19, 1990, the Charging Party filed a petition in Case 7–RC–19431 seeking to
represent the employees in the unit. An election was held on December 20, 1990. The Charging
Party filed objections to the election. On August 27, 1991, the Board issued a Decision and
Direction of Second Election. A rerun election was held on October 11, 1991. The Respondent
filed objections to the second election. On April 8, 1993, the Charging Party was certified by
the Board as the exclusive collective-bargaining representative of the employees in the unit.
The Respondent refused to bargain with the Charging Party in an attempt to test the certifica-
tion and the Charging Party filed a charge in Case 7–CA–34712. A Motion for Summary
Judgment was subsequently filed and on November 15, 1993, the Board issued its Decision and
Order directing the Respondent to recognize the Charging Party. Chelsea Industries, 312 NLRB
No. 191 (1993) (not published). The Respondent did not seek review of the Board’s decision.
9. At all times since April 8, 1993, based on Section 9(a) of the Act, the Charging Party has
been the exclusive collective-bargaining representative of the employees in the unit for the
purposes of collective bargaining.
10. The Charging Party’s certification year commenced on about February 3, 1994, when
Respondent and the Charging Party commenced negotiations.
11. On February 9, 1995, Respondent, by letter, by its attorney, Steven J. Fishman, with-
drew its recognition of the Charging Party as the exclusive collective-bargaining representative
of the unit (Exh. A).
12. In withdrawing recognition on February 9, 1995, Respondent relied on an employee pe-
tition circulated by employees in the unit on November 18 and 19, 1994, and presented to the
Respondent on November 21, 1994, by employees in the unit. (Exh. B.) The petition was
signed by 57 unit employees.
13. Between November 21, 1994, and February 9, 1995, six employees in the unit who had
signed the petition terminated their employment with the Respondent.
14. On February 9, 1995, there existed a total of 89 employees in the unit. (Exh. C is a sen-
iority list of unit employees dated February 1, 1995. On February 9, 1995, the unit contained
the same employees as listed in Exh. C, except that Michael Dunaway had terminated his
employment.)
15. The petition referred to above in paragraph 12 contains the valid signatures of 51 em-
ployees in the unit as of February 9, 1995. The number of signatures on the petition constitutes
the numerical majority of the unit as of February 9, 1995.
16. Although collective bargaining between Respondent and the Charging Party was con-
tinuing prior to February 9, 1995, they had not, as of February 9, 1995, reached agreement on
an initial collective-bargaining agreement.
17. On February 9, 1995, there existed no unremedied unfair labor practice charges against
the Respondent.
18. No secret-ballot election was conducted among the employees in the unit prior to the
Respondent’s February 9, 1995, withdrawal of recognition to determine whether or not the
employees desired to be represented for the purpose of collective bargaining by the Charging
Party.
19. About March 6, 1995, Respondent, by its agent Ron Thompson, granted unit employees
a wage increase.
20. The subject set forth above in paragraph 19 relates to wages, hours, and other terms and
conditions of employment of the unit and is a mandatory subject of bargaining.
21. Respondent engaged in the conduct described above in paragraph 19 without prior no-
tice to the Charging Party and without affording the Charging Party an opportunity to bargain
with Respondent with respect to this conduct.
B. Discussion and Analysis
A Board-certified union is entitled to an irrebuttable presumption of its representative status
for 1 year following its certification. This is because it “should be given ample time for carry-
ing out its mandate on behalf of its members, and should not be under exigent pressure to
produce hothouse results or be turned out.’’ Brooks v. NLRB, 348 U.S. 96, 100 (1954). After
the end of the certification year, however, that presumption becomes rebuttable. At that point,
an employer can rebut the presumption and lawfully withdraw recognition by showing either
that the union does not in fact enjoy majority support or that the employer had a reasonable,
objectively based doubt of the union’s majority status. NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 778 (1990).
In the instant case, the stipulated record clearly establishes that Respondent withdrew rec-
ognition after the end of the Union’s certification year based on a petition that showed a major-
ity of its employees did not support the Union. Both in November 1994, when the petition was
signed and, in February 1995, when the Respondent withdrew recognition, the Union lacked
majority support. Thus, the withdrawal of recognition would appear to be proper under settled
law, except for the fact that the petition was secured within the certification year, more than 9
months after the parties commenced negotiations and less than 3 months before the withdrawal
of recognition. The Respondent committed no unfair labor practices, so there can be no conten-
tion that Respondent bargained in bad faith or tainted the petition by engaging in unlawful
conduct.
The General Counsel and the Union contend that the Respondent violated the Act, because
an antiunion petition secured within the certification year can never be utilized to withdraw
recognition outside the certification year. I cannot agree. Thus, I find the withdrawal of
recognition here to have been lawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1654
In support of their position, the General Counsel and the Union rely on United Supermar-
kets, 287 NLRB 119 (1987), enfd. 862 F.2d 549, 553 (5th Cir. 1989). In that case, the Board
found unlawful the employer’s withdrawal of recognition after the expiration of the certifica-
tion year, based on a decertification petition signed by a majority of the employees within the
certification year. The General Counsel and the Union point to the following specific language
in the Board’s decision (287 NLRB at 120):
We believe that just as the petition could not raise a question concerning representation nor
be acted on by the Respondent within the certification year, the Respondent cannot subse-
quently rely on it to justify a more timely withdrawal of recognition.
Other cases, however, undermine the quoted language. For example, in Rock-Tenn Co., 315
NLRB 670 (1994), enfd. 69 F.3d 803 (7th Cir. 1995), although the Board found the employer’s
withdrawal of recognition unlawful, it reaffirmed a line of cases that legitimize “anticipatory’’
withdrawals of recognition. Those cases hold that an employer may lawfully announce an intent
to withdraw recognition after the end of the certification year, based on evidence, within the
year, of the union’s actual loss of majority or the employer’s objectively based good-faith doubt
of majority. 315 NLRB at 672, and cases there cited. Thus, those cases appear to refute the
notion that an employer cannot withdraw recognition outside the certification year based on
evidence within the year.
Moreover, the circumstances in which the Board found unlawful withdrawals of recognition
in United Supermarkets and Rock-Tenn, the cases chiefly relied on by the General Counsel and
the Union, are distinguishable from those presented here. In both those cases, the Board found
violations because of evidence that the antiunion petitions there were tainted by unremedied
unfair labor practices. In United Supermarkets, the Board viewed such evidence as “[m]ore
significant’’ than the fact that the petition surfaced 5 months into the certification year, when
bargaining was just beginning. 287 NLRB at 120. In Rock-Tenn, there were two antiunion
petitions. The Board found that the first petition was inoperative because it was both premature
and stale. It was premature because it was secured “only a few days after the first bargaining
session,’’ and stale because it was 6 months old by the time of the withdrawal of recognition.
More significantly, the second antiunion petition was unsupported by a majority of the employ-
ees and, in any event, was tainted by the employer’s unfair labor practices. Indeed, in Rock-
Tenn, the union had submitted evidence of actual majority after the submission of the two
petitions and before the withdrawal of recognition. 315 NLRB at 672–673. In contrast, here,
there were no unfair labor practices to taint the petition. Even apart from this difference, the
petition in the instant case was neither premature nor stale. The petition here surfaced well into
the certification year, after 9 months of bargaining. Nor was it so far in advance of the with-
drawal of recognition that it could be deemed superceded by the passage of time or intervening
events.
Both the General Counsel and the Union argue, in the alternative, that Respondent here
could not withdraw recognition without going to a Board election. There have been suggestions
that the end of a bargaining relationship should be based on the same formalities that attend its
commencement. See the decision of Judge Bernard Ries in Alcon Fabricators, 317 NLRB 1088
(1995). Those suggestions would appear to have particular force here, where the challenge to
the Union’s majority occurred within the certification year and thus had the potential of render-
ing further bargaining within that year meaningless.
But this would require a change in Board law, a task I am not authorized to undertake. I
therefore do not reach that issue. What I do find, however, is that Respondent had the right,
under present Board law, to withdraw recognition after the end of the certification year, based
on a petition, untainted by unfair labor practices and submitted within the certification year,
which showed that a majority of its employees did not wish the Union to represent them.
Accordingly, I find that the Respondent has not violated the Act.
CONCLUSION OF LAW
The General Counsel has not proved by a preponderance of the evidence that Respondent
violated Section 8(a)(5) and (1) of the Act as alleged in the complaint.
On these findings of fact and conclusion of law and on the entire record, I issue the follow-
ing recommended1
ORDER
The complaint is dismissed in its entirety.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order herein 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
purposes.