Crown Textile Co.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 201 (N.L.R.B. 2001)

CROWN TEXTILE CO. 201
Crown Textile Company and Union of Needletrades,
Industrial and Textile Employees

Specialty Textile Products, Inc. and Union of Nee-
dletrades, Industrial and Textile Employees.
Cases 10–CA–29382 and 10–CA–29886
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On February 13, 1998, Administrative Law Judge
Robert C. Batson issued the attached decision. The Gen-
eral Counsel and the Charging Party each filed excep-
tions and supporting briefs, and the Respondents filed an
answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
1. The judge dismissed allegations that the Respon-
dent Specialty Textile Products, Inc. (STP) violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain with
the Union. The General Counsel and Charging Party
except, inter alia, to the judge’s dismissal of this allega-
tion. For the reasons set forth below, we reverse the
judge’s decision and find that STP unlawfully refused to
bargain with the Union.1
In St. Elizabeth Manor, Inc., 329 NLRB 341 (1999),
the Board adopted a “successor bar” rule, which pre-
cludes petitions challenging a union’s majority status for
a reasonable period after a successor employer’s obliga-
tion to recognize an incumbent union is triggered. Spe-
cifically, the Board held:

[O]nce a successor’s obligation to recognize an
incumbent union has attached (where the successor
has not adopted the predecessor’s contract), the un-
ion is entitled to a reasonable period of bargaining
without challenge to its majority status through a de-
certification effort, an employer petition, or a rival
petition.8

1 The judge also dismissed the complaint allegation that the Respon-
dent Crown violated Sec. 8(a)(5) of the Act by unilaterally changing the
contractual vacation pay policy. The General Counsel and the Union
have excepted to this dismissal.
In the unique circumstances of this case, we find it unnecessary to
pass on the judge’s dismissal of the Sec. 8(a)(5) unilateral change alle-
gation against Respondent Crown. These circumstances include the
fact that Crown has gone out of business. Further, Crown has, in fact,
paid the affected employees all monies they were owed under the con-
tractual vacation pay policy, and, therefore, the General Counsel seeks
to impose no monetary liability for this alleged unfair labor practice
against either Crown or STP. Thus, we believe it serves no purpose to
engage in an analysis of an essentially academic issue.
______________________
8 In the successorship situation, the successor employer’s ob-
ligation to recognize the union attaches after the occurrence of
two events: (1) a demand for recognition or bargaining by the un-
ion; and (2) the employment by the successor employer of a “sub-
stantial and representative complement” of employees, a majority
of whom were employed by the predecessor. See Royal Midtown
Chrysler Plymouth, 296 NLRB 1039, 1040 (1989). Thus, because
the employer’s obligation to recognize the union commences at
that time, as soon as those two events have occurred, the bar to
the processing of a petition or to any other challenge to the un-
ion’s majority status begins, whether or not the employer has ac-
tually extended recognition to the union as of that time.

Id. at 344.2
It is undisputed that STP is a successor to Crown under
Burns International Security Services, 406 U.S. 272 (1972).
STP purchased plants 1 and 3 from Crown and Crown’s
operations ceased on October 15, 1996.3 On October 16,
STP took over the operations with the same employees and
supervisors as had been employed by Crown. STP pro-
duced essentially the same products, which were sold to the
same customers. There was no hiatus in operating the busi-
ness. The judge specifically found that it is “abundantly
clear that STP became a legal successor to Crown,” and
there is no exception to that finding.
Manifestly, STP’s obligation to recognize and bargain
with the Union had attached when it refused to bargain.
Both predicate events required by St. Elizabeth Manor to
establish a bargaining obligation had transpired. First,
there is no dispute that STP employed a substantial and
representative complement of employees immediately
upon beginning to operate the business. Second, on Oc-
tober 29, the Union demanded recognition and requested
to bargain with STP concerning the employees’ terms
and conditions of employment.
STP refused to bargain with the Union, asserting that it
had a good-faith doubt about the Union’s majority status.
STP relied on a petition it received on October 24 or 25
stating that the bargaining unit employees did not want
union representation by the Union or any other labor
organization. The petition was signed by a majority of
the bargaining unit employees.
2 The effect of the Board’s decision was to return to the principle ex-
pressed in Landmark International Trucks, 257 NLRB 1375 (1981),
enf. denied 699 F.2d 815 (6th Cir. 1983), that a successor employer
violates Sec. 8(a)(5) if it withdraws recognition before a reasonable
period of time for bargaining has elapsed, whether that withdrawal is
based on a good-faith doubt of the union’s continuing majority status or
evidence of actual loss of majority status. See St. Elizabeth Manor,
supra at 342. Accordingly, the contrary view, as expressed in Harley-
Davidson Transportation Co., 273 NLRB 1531 (1985), is clearly no
longer good law after St. Elizabeth Manor.
3 All dates hereafter will be in 1996, unless otherwise specified.
335 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
STP was not, however, privileged to rely on that em-
ployee petition in refusing to bargain with the Union,
based on the “successor bar” rule enunciated in St. Eliza-
beth Manor.4 Inasmuch as STP’s obligation to bargain
with the Union attached when the Union demanded rec-
ognition and bargaining, STP was precluded thereafter
from withdrawing recognition, by operation of the suc-
cessor bar, before a “reasonable period of time” had
elapsed. During this insulated period, there can be no
challenge to a union’s representational status in order to
afford the parties and the employees a period of stability
to develop their bargaining relationship without interrup-
tion.5 Accordingly, we find that STP violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from and refusing to bargain with the Union.6
Our dissenting colleague claims that we have not cor-
rectly applied the St. Elizabeth Manor successor-bar rule
to the facts of this case. He reads that decision to hold
that a decertification effort is barred if it occurs after the
obligation to recognize is triggered, but it is timely if it
occurs before that time. We reject the dissent’s gloss on
St. Elizabeth Manor.
The successor-bar doctrine, as articulated in that deci-
sion, is based on the need to provide employees with a
reasonable opportunity to determine whether the incum-
bent union will be effective in representing them in nego-
tiations with the successor. That rationale applies re-
gardless of whether a decertification effort by employees
is initiated before or after the union has made a formal
demand for recognition from the successor. In either
situation, the effort occurs in the stressful transitional
period, after a successor employer has taken over the
business, and during which the bargaining relationship
should be insulated from challenge so employees may
fairly evaluate the union’s effectiveness.7

4 For the reasons set forth in the majority opinion in St. Elizabeth
Manor, Inc., we reject our dissenting colleague’s criticisms of the suc-
cessor bar doctrine, including his discussion of Fall River Dyeing Corp.
v. NLRB, 482 U.S. 27 (1987).
5 It is clear in this case that a reasonable period had not elapsed at the
time of the refusal to bargain because negotiation sessions had not even
been scheduled. After a reasonable period of time elapses, the employ-
ees will have an opportunity to change or eliminate their bargaining
representative, if they so choose. St. Elizabeth Manor, supra at 345.
6 Inasmuch as we have found STP to be a successor under Burns re-
quired to recognize and bargain with the Union, and as the General
Counsel does not claim that STP is obligated to remedy any unfair
labor practices that may have been committed by Crown, we find it
unnecessary to determine whether STP was also a successor to Crown
under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
7 In claiming that our decision today is inconsistent with the “precise
wording” of fn. 8 of St. Elizabeth Manor, the dissent focuses narrowly
on that brief footnote and fails to evaluate it in the context of the entire
decision. The facts of St. Elizabeth Manor showed that the successor
employer actually recognized the Union, held three bargaining sessions
Our dissenting colleague’s emphasis on the timing of
the employee petition is particularly misplaced here,
since it is undisputed that STP had publicly announced
that it “would be open to negotiations” with the union
shortly before the petition was received and before the
Union had demanded bargaining. As a practical matter,
then, STP assumed a bargaining demand, effectively
recognized the Union, and then withdrew recognition,
once the Union had made a formal demand, in the wake
of the employee petition. On that view, of course, even
the dissent should acknowledge that the successor-bar
rule applies here.8
In any case, nothing in either the language or the rea-
soning of St. Elizabeth Manor supports the dissent’s no-
tion that the successor’s receipt of an employee petition
before a bargaining demand is made somehow preempts
application of the successor-bar rule. What triggers the
successor bar is the hiring of the requisite employee
complement and a demand for bargaining. Both of these
triggering events occurred here.
That an employee petition intervened between the two
events is immaterial, given the nature of the successor-
bar rule, which forecloses decertification efforts for a
reasonable period of time. There can be no suggestion
here that the Union effectively abandoned its representa-
tional rights by delaying its demand. Nor was the Union
required to win a race to the employer by making a de-
mand before the employee petition was received, espe-
cially in light of the employer’s prior announcement that
it would recognize the union. Finally, even following the
dissent’s formalistic approach, it is not clear how the
petition could operate to relieve STP of a duty that it had
not yet incurred. In sum, we have applied St. Elizabeth
Manor here in a way that is both formally correct and
practically sound.

over a 3-month period, and then filed an RM petition. 329 NLRB at
341. Fn. 8 states the successor-bar rule broadly, to cover not only the
somewhat unusual facts of St. Elizabeth Manor, but also the more typi-
cal situation where the successor employer never recognized the union.
Nothing in the footnote limits the underlying rationale of the decision.
Nor do we discern how the dissent’s formalistic approach—which
places critical importance on whether the employee decertification
effort precedes or follows the union’s demand for recognition—furthers
the policies of the Act, consistent with St. Elizabeth Manor.
8 Our dissenting colleague claims that there is “no basis” for our
reading of STP’s announcement. We disagree. First, the judge found,
without exception, that STP “published an article in the Talladega,
newspaper [stating] that it would bargain with the Union.” Second,
STP’s answering brief contains a section entitled, “Respondent STP’s
Managers Publicly Announced The Company’s Willingness To Nego-
tiate With Charging Party,” which states, inter alia, that on “October
21, 1996, Respondent STP’s management publicly announced that it
was willing to meet and negotiate with Charging Party.” Thus, we
conclude that STP’s admitted willingness to enter into negotiations
with the Union constitutes an implicit recognition of the Union.
CROWN TEXTILE CO. 203
2. For the reasons fully set forth in Caterair Interna-
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In the Vincent case, the court
summarized the court’s law as requiring that an affirma-
tive bargaining order “must be justified by a reasoned
analysis that includes an explicit balancing of three con-
siderations: (1) the employees’ §7 rights; (2) whether
other purposes of the Act override the rights of employ-
ees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the
violations of the Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation.
Moreover, ordering the successor employer to bargain
for a reasonable period of time with the incumbent union,
as in this case, serves “to protect the newly established
bargaining relationship and the previously expressed
majority choice, taking into account that the stresses of
the organizational transition may have shaken some of
the support the union previously enjoyed.” St. Elizabeth
Manor, supra at 345. By the time STP took over
Crown’s operations, the STP employees had endured
approximately 5 years of financial difficulties with
Crown, during which time the future of the business and
their job security were uncertain.9 Circumstances such as
these, in which the employees’ anxiety about their status
with STP could have led to their disaffection before the
Union had the opportunity to demonstrate its continued
effectiveness, could tempt a reluctant successor employer
to postpone its statutory bargaining obligation indefi-
nitely. Ibid. To require bargaining to continue only for a
reasonable period of time, not in perpetuity, fosters in-
dustrial peace and stability and will ensure that the
bargaining relationship established between STP and the
Union will have a fair chance to succeed. Id. at 346.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and the Respondent’s unfair labor practice was of a
continuing nature and was likely to have a continuing
effect, thereby tainting any employee disaffection from
the Union arising during that period or immediately
thereafter. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin-
ued union representation.
For all the foregoing reasons, we find that an affirmative
bargaining order with its temporary decertification bar is
necessary to fully remedy the allegations in this case.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Specialty Textile Products, Inc., Talladega, Ala-
bama, its officers, agents, successors, and assigns, shall
1. Cease and desist from

9 Indeed, in April 1993, Crown employed 417 bargaining unit em-
ployees; by mid-October 1996 when STP began operating, the work-
force had decreased to 27 employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
(a) Unlawfully withdrawing recognition from Union of
Neeedletrades, Industrial and Textile Employees, the
Union, and refusing to bargain with it as the exclusive
collective-bargaining representative of the employees
employed in the unit described below in paragraph 2(a).
(b) 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 regular full-time hourly production and mainte-
nance employees employed by the Company at its
manufacturing facilities located in Talladega, Alabama.
Excluded from the bargaining unit are all other em-
ployees, including but not limited to all office and
clerical employees; all sales employees; all temporary
employees (i.e., those who are hired to work for a lim-
ited duration, not to exceed six (6) months in any cal-
endar year); all part-time employees (i.e., those nor-
mally and regularly employed for less than thirty-two
(32) hours per week); all employees employed by the
Company at its other facilities; leadmen; truck drivers;
managerial, confidential, professional, and technical
employees; and guards and supervisors as defined in
the National Labor Relations Act, as amended.

(b) Within 14 days after service by the Region, post at
its Talladega, Alabama facilities copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

10 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.”
to all current employees and former employees employed
by the Respondent at any time since October 29, 1996.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

CHAIRMAN HURTGEN, dissenting in part.
I agree with my colleagues that it would not effectuate
the purposes of the Act to proceed on the unfair labor
practice allegation against Respondent Crown. I further
agree that, in these circumstances, it is unnecessary to
pass on the Golden State1 successor issue.
However, I disagree with my colleagues’ reversal of
the administrative law judge’s conclusion that Respon-
dent Specialty Textile Products (STP) did not violate
Section 8(a)(5) and (1) of the Act by refusing to bargain
with the Union.
The facts of this case are as follows. On October 15,
1996,2 STP purchased two plants from Respondent
Crown Textile Company (Crown). On October 16, STP
took over the operations at those plants. On October 24
or 25, STP received a petition, signed by an overwhelm-
ing majority of the bargaining unit employees, stating
that the bargaining unit employees did not want represen-
tation by the Union or any other labor organization. On
October 29, the Union demanded recognition and re-
quested bargaining with STP concerning the employees’
terms and conditions of employment. After receiving the
Union’s request, STP refused to recognize or bargain
with the Union based on the employees’ petition.
In reversing the judge and concluding that STP vio-
lated the Act, the majority finds that the “successor bar”
rule enunciated in St. Elizabeth Manor, Inc., 329 NLRB
341 (1999), precluded STP from refusing to bargain with
the Union. I do not subscribe to the Board’s decision in
St. Elizabeth Manor, a case from which I dissented.
The Board in St. Elizabeth Manor, and as extended in
Inn Credible Caterers, 330 NLRB 691 (2001),3 found
that once a successor’s duty to bargain attaches, and for a
reasonable period of time thereafter, there can be no
challenges to the union’s majority status. Thus, the
Board transformed what had been a rebuttable presump-
tion of the union’s continued majority status into an irre-
buttable presumption. Applying that rationale here, the
Board forecloses STP from relying on a petition by an
overwhelming majority of employees indicating that they
no longer wish to be represented by the Union or any
1 Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
2 All dates are in 1996.
3 For the reasons stated in my concurring opinion in Inn Credible
Caterers, I do not support the extension and application of St. Elizabeth
Manor to the unfair labor practice context.
CROWN TEXTILE CO. 205
other labor organization. The petition provides substan-
tial objective evidence of a good-faith uncertainty about
the Union’s majority support.4 Nevertheless, the major-
ity forecloses the employees from exercising their Sec-
tion 7 right to select a union representative or to have no
union represent them, and the majority forecloses STP
from relying on such evidence in refusing to recognize
and bargain with the Union. The majority reaches this
conclusion despite the Supreme Court’s finding in Fall
River Dyeing v. NLRB, 482 U.S. 27, 41 fn. 8 (1987), that
the successor retains the ability to lawfully withdraw
recognition if it could show that the union had in fact lost
its majority status at the time of the refusal to bargain or
that the refusal to bargain was grounded on a good-faith
uncertainty, based on objective factors, that the union
continued to command majority support. Under Fall
River, employees who no longer want to be represented
by the union may so inform the successor, and the suc-
cessor may consider that as grounds for a good-faith un-
certainty. That employee right, pronounced by the Su-
preme Court, has been foreclosed by St. Elizabeth Manor
and the majority here.
In my view, consistent with Fall River, the Union no
longer maintained majority support (or at least there was
uncertainty on this issue) by the time it requested recog-
nition and bargaining. Therefore, STP did not violate the
Act by thereafter refusing to recognize and bargain.
Moreover, even assuming I subscribed to the rule as
described in St. Elizabeth Manor, I would uphold the
judge’s dismissal of the allegation that STP violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize
and bargain with the Union.
The Board held in St. Elizabeth Manor that the succes-
sor bar applies once a successor’s obligation to recognize
an incumbent union has attached. With respect to when
such attachment occurs, the rule in St. Elizabeth Manor
was correctly stated as follows:

[O]nce a successor’s obligation to recognize an in-
cumbent union has attached (where the successor has
not adopted the predecessor’s contract), the union is
entitled to a reasonable period of bargaining without
challenge to its majority status through a decertifica-
tion effort, an employer petition, or a rival petition.8
______________________
8 In the successorship situation, the successor employer’s ob-
ligation to recognize the union attaches after the occurrence of
two events: (1) a demand for recognition or bargaining by the un-
ion; and (2) the employment by the successor employer of a “sub-
stantial and representative complement” of employees, a majority

4 The record contains insufficient evidence to demonstrate a causal
relationship between the alleged unfair labor practice committed by
Respondent Crown several months earlier and the petition.
of whom were employed by the predecessor. See Royal Midtown
Chrysler Plymouth, 296 NLRB 1039, 1040 (1989). Thus, because
the employer’s obligation to recognize the union commences at
that time, as soon as those two events have occurred, the bar to
the processing of a petition or to any other challenge to the un-
ion’s majority status begins, whether or not the employer has ac-
tually extended recognition to the union as of that time.

329 NLRB at 344. See also Fall River, 482 U.S. at 52
(“The successor’s duty to bargain at the ‘substantial and
representative complement’ date is triggered only when
the union has made a bargaining demand.”) Thus, St.
Elizabeth Manor creates an irrebuttable presumption of
the union’s continued majority status only after those two
events have occurred.
Here, before ever receiving any demand from the Un-
ion, STP received a petition signed by 25 of the 27 bar-
gaining unit employees indicating that they did not want
representation by the Union or any other labor organiza-
tion. At the time the petition was presented and received
by STP, STP had received no demand for recognition or
bargaining from the Union.
As noted, I dissented in St. Elizabeth Manor. I did so
because of its effect on Section 7 rights. However, as
discussed below, the employee petition herein was timely
even under St. Elizabeth Manor. The response of my
colleagues is to change the St. Elizabeth Manor rule to
make it even more restrictive.
Under St. Elizabeth Manor, an employee petition is not
cognizable if it arises after the duty to bargain has at-
tached. And, under St. Elizabeth Manor, the duty to bar-
gain attaches when a substantial and representative com-
plement has been hired and a demand for recognition has
been made. In the instant case, the demand for recogni-
tion was not made until October 29. Thus, the employee
petition of October 24 or 25 was timely.
My colleagues abandon the distinction between peti-
tions dated before the duty to bargain attaches and those
dated after. They assert that the employees’ decertifica-
tion efforts are untimely irrespective of whether they
occur before or after the commencement of the duty to
bargain. As discussed above, this is contrary to the pre-
cise wording of St. Elizabeth Manor.5
That is, St. Elizabeth Manor supports giving effect to
the employees’ petition when no demand for recognition
has yet been made. Where, as here, the petition is filed
before the demand for recognition, the only element pre-
5 My colleagues say that my approach is “formalistic.” I have sim-
ply relied upon their language in St. Elizabeth Manor, which language
was stated as a general rule to cover “the successorship situation.” My
colleagues now modify their own rule. Similarly, my colleagues say
that I have placed “critical importance” on the timing of the employee
decertification effort. However, the whole point of St. Elizabeth Manor
is to render untimely that effort.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
sent at that time is the existence of a substantial and rep-
resentative complement. For my colleagues, that ele-
ment alone is now enough to bar the petition. Phrased
differently, the petition in order to be timely must be
filed before a substantial and representative complement
of employees is hired. To say the least, this is a very odd
notion. It is also contrary to St. Elizabeth Manor. As
discussed, St. Elizabeth Manor required two elements to
bar the petition, viz. the requisite complement of em-
ployees and the demand for recognition.
In view of the language of St. Elizabeth Manor, my
colleagues next try to show that the demand for bargain-
ing occurred on October 22, i.e., before the employee
petition of October 24, 1996. This contention is based on
an announcement in a newspaper article. In this regard,
my colleagues say that Respondent “published an article
in the Talladega, newspaper [stating] that it would bar-
gain with the Union.” The article in question was written
by a newspaper reporter. The article said that “Peters
[Respondent agent] said he has had no formal contact
from UNITE, the union which previously had a contract
with Crown. S[TP] officials [] do not recognize the con-
tract the union had with Crown, but Peters said company
leaders would be open to negotiations with the union.”
My colleagues treat the announcement as a recognition
of the Union, and they state that Respondent STP “as-
sumed” the Union had made a bargaining demand. I find
no basis for the majority’s reading of the announcement,
particularly because STP specifically noted therein that it
had not yet heard from the Union. Clearly, STP did not
treat the Union as having made a bargaining demand.
Rather, STP merely announced its willingness to comply
with the law should the legal requirements regarding a
bargaining obligation be met. Thus, nothing in STP’s
announcement obviated the need for the Union to make a
timely demand for recognition in order to foreclose de-
certification efforts for a reasonable period of time.
In the circumstances here, STP’s refusal to recognize
and bargain, in the face of evidence demonstrating good-
faith doubt as to the Union’s continued majority status,
was not violative of the Act. To find otherwise disre-
gards the employees’ Section 7 freedom of choice. It
also applies the successor-bar rule to a situation where
the conditions reaffirmed by St. Elizabeth Manor were
not met.
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
Union of Neeedletrades, Industrial and Textile Employ-
ees, and unlawfully refuse to bargain with it as the exclu-
sive collective-bargaining representative of the employ-
ees employed in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce our employees in the exercise of
the rights guaranteed them 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 regular full-time hourly production and mainte-
nance employees employed by us at our manufacturing
facilities located in Talladega, Alabama. Excluded
from the bargaining unit are all other employees, in-
cluding but not limited to all office and clerical em-
ployees; all sales employees; all temporary employees
(i.e., those who are hired to work for a limited duration,
not to exceed six (6) months in any calendar year); all
part-time employees (i.e., those normally and regularly
employed for less than thirty-two (32) hours per week);
all employees employed by the Company at its other
facilities; leadmen; truck drivers; managerial, confiden-
tial, professional, and technical employees; and guards
and supervisors as defined in the National Labor Rela-
tions Act, as amended.
SPECIALTY TEXTILE PRODUCTS, INC.
Andrew Brenner, Esq., for the General Counsel.
Townsell G. Marshall, Esq. and Michael D. Giles, Esq. (Con-
stangy, Brooks & Smith LLC,) of Birmingham, Alabama,
for Respondent, Crown Textile Company.
David Hodges, Esq. (The Ford Law Firm,), of Birmingham,
Alabama, for Respondent, Specialty Textile Products, Inc.
Harris Raynor, Union of Needletrades, Industrial and Textile
Employees, AFL–CIO, of Union City, Georgia, for the Un-
ion.
CROWN TEXTILE CO. 207
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. These
cases consolidated for trial was heard by me on June 18, 1997,
in Birmingham, Alabama. Based upon charges filed by the
Union of Textile Needletrades, Industrial and Textile Employ-
ees,1 filed charges against Crown Textile Company, Inc., on
June 14, 1996, in Case 10–CA–29382. The Union thereafter
filed charges against Specialty Textile Products, Inc.,3 on Janu-
ary 16, 1997, in Case 10–CA–29886. An Order consolidating
cases, consolidating complaint, and notice of hearing issued
March 18, 1997, alleging violations of Section 8(a)(1) and (5)
of the Act (GC Exhs. 1(a) through 1(m)).
1. The issue presented is whether Respondent Crown vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally changing
its vacation pay policy without bargaining with the Union.
2. Whether Respondent STP is the legal successor to Crown
Textile Company.
3. Whether Respondent STP as the successor to Crown Tex-
tile Company violated Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with the Union.
Charges in the complaint and notice of hearing were served
upon all parties.
1. I find herein that Respondent Crown did not violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally changing its vaca-
tion pay policy without bargaining with the Union.
2. Respondent Specialty, or STP, is the legal successor to
Crown Textile Company.
3. Respondent Specialty, or STP, as the successor to Crown
did not violate Section 8(a)(1) and (5) of the Act by refusing to
recognize and bargain with the Union.
On March 18, 1997, the Regional Director issued an Order
Consolidating Cases 10–CA–29382 and 10–CA–29886 in a
consolidated complaint and notice of hearing.
In paragraphs 9 through 11 of the complaint, the General
Counsel alleges that on or about May 10, 1996, Respondent
Crown altered the schedule for payment of vacation pay for
unit employees without bargaining with the Charging Party
(Union) over those changes or the effects of those changes.
The General Counsel further alleges that by the conduct de-
scribed in paragraphs 9 through 11 Respondent Crown failed
and refused to bargain collectively and in good faith with the
Union and thereby violated Section 8(a)(1), (5) and Section
8(d) of the Act.
There are no crucial issues of fact for which credibility resolu-
tions must be made to resolve the issues raised by this complaint.
All parties were afforded full opportunity to call and exam-
ine and cross-examine witnesses and to present all relevant
evidence, and file posttrial briefs. Based upon my observations
of the demeanor of witnesses while testifying under oath and
the briefs which were filed by Crown Textile Company, Spe-
cialty Textile Products, Inc., Union of Needletrades, Industrial
and Textile Employees, and the counsel for the General Coun-
sel, I make the following

1 Hereinafter referred to as Union or UNITE.
3 Hereinafter referred to as STP or Respondent STP.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the answer admits that Respondent
Crown Textile Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. The
complaint alleges and the answer admits that Specialty Textile
Products, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It is further alleged that the Amalgamated Clothing & Textile
Workers Union (ACTWU) is a labor organization within the
meaning of Section 2(5) of the Act and is the predecessor to the
Charging Party herein. The complaint alleges, the answer ad-
mits, and the evidence establishes that Union of Needletrades,
Industrial and Textile Employees (UNITE) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. FACTUAL BACKGROUND
A. Crown Textile Company
Respondent Crown was a vertically integrated manufacturer
of woven, nonwoven, and wuft insertion at interfacings for use
in men’s and women’s apparel, as well as knitted fabric for
women’s apparel that began operations in Talladega, Alabama,
in 1964 (Jt. Exh. 2).
It is admitted that Respondent Crown suffered economic
problems in the early 1990s. In 1992, ACTWU (the predeces-
sor of Charging Party) began an organizing campaign at Re-
spondent Crown’s Talladega, Alabama facilities and on Octo-
ber 7, 1992, ACTWU filed a petition for an election in Case
10–RC–14299 (Jt. Exh. 2). Respondent Crown and ACTWU
entered into a stipulated election agreement for an election to
be held on November 19, 1992, among “all full time and regu-
lar part time production and maintenance employees including
plant clerical employees employed by Respondent Crown at its
plants 1, 2, 3, and 4 located in Talladega County, Alabama, but
excluding all office clerical employees, technical employees,
lead persons, confidential employees, professional employees,
guards and supervisors as defined in the Act. At this time,
October 7, 1992, the unit consisted of approximately 450 em-
ployees. (Jt. Exh. 2)
On November 13, 1992, ACTWU filed charges in Case 10–
CA–26357 which blocked the election. Those charges were
withdrawn on December 23, 1992, however, unfair labor prac-
tice charges in Case 10–CA–26451 had been filed on December
22, 1992, which continued to block the election. A complaint
was issued in Case 10–CA–26451 on February 8, 1993.
During the interim Respondent Crown’s economic misfor-
tunes continued and, as a result Respondent Crown’s owners
offered the Company for sale. This decision was made in order
to obtain infusion of capital for Respondent Crown to continue
operations and absent the sale it had become apparent that
Crown would probably close. At about this time Crown en-
tered into negotiations for the sale of the business with Heller
Equity Capitol Corporation of Chicago, Illinois. During nego-
tiations for the sale of Respondent Crown, Heller became aware
of the labor relations situation at Crown and would not proceed
with the sale unless the labor relations situation was resolved.
In order to resolve this issue Crown agreed to voluntary recog-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208
nition of ACTWU if they could demonstrate that they repre-
sented a majority of the bargaining unit employees.
To resolve this issue Crown called a meeting at a local movie
theater in Talladega, Alabama, on April 6, 1993, where at rep-
resentatives of Crown, Heller, and ACTWU spoke to employ-
ees. The employees were informed by Heller representatives
that Respondent Crown had financial difficulties and had of-
fered the company for sale; that if it was not sold, that it might
mean liquidation of the company; and that Heller wished to
purchase the company, but outstanding labor relations situa-
tions had to be resolved. A representative of ACTWU also
spoke to Respondent Crown’s employees at that meeting. The
ACTWU representative reinforced Heller’s warning about the
possible outcome for employees if the sale to Heller did not go
through and the need to settle the labor unrest in order for that
to happen.
Following this meeting Crown allowed ACTWU representa-
tives access to its breakrooms to meet with employees to,
among other things, obtain signed union membership cards.
Thereafter ACTWU and Heller requested that the State of Ala-
bama, Department of Labor, conduct a card check and signature
of verification of union membership cards to determine whether
ACTWU represented a majority of Respondent Crown’s em-
ployees. This card check took place on April 14, 1993, at the
department facilities in Montgomery, Alabama, at the time of
the card check there were 417 employees in the designated unit.
A total of 311 membership cards were presented to the depart-
ment representative and after examining the cards it was de-
clared that 274 of the cards were valid and that the ACTWU
(now UNITE) had been designated by a majority of employees
in the unit. On April 15, 1993, Respondent Crown’s employees
ratified a collective-bargaining agreement between Respondent
Crown and the Amalgamated Clothing and Textile Workers
Union which became effective on May 6, 1993.
Thereafter the Amalgamated Clothing and Textile Workers
Union requested withdrawal of the unfair labor charges in Case
10–CA–26451 which was approved by the Regional Director
for Region 10 on May 6, 1993, and the sale of Respondent
Crown to Heller was closed.
However, Crown’s business continued to endure economic
problems during the next several years and closed its plant 4
and moved its cutting operations to plant 1 during the last week
of May 1995. After Heller’s purchase of Respondent Crown
the employee complement dropped from 400 plus employees in
1993 to 268 employees as of the week ending January 7, 1996.
On January 2, 1996, Respondent Crown filed for Bankruptcy in
the United States Bankruptcy Court for the Northern District of
Illinois, Eastern Division.
After Crown filed Bankruptcy its business continued to de-
cline and during the week of September 3, 1996, Respondent
Crown stopped production at plant 2, and as of the week ending
October 6, Respondent Crown employed only 15 employees at
plant 1 and 35 employees at plant 3, and finally on October 15,
1996, Specialty Textile Products, Inc. (STP) purchased plants 1
and 3 from Respondent and Respondent Crown’s manufactur-
ing operations ceased. STP began, or continued the operations,
on October 16, 1996.
B. Specialty Textile Products, Inc.
Respondent STP admits that it continued operations at plants
1 and 3 with the same employees and supervisors as had been
employed by Respondent Crown. STP produced essentially the
same materials sold to the same customers, hired the same em-
ployees and supervisors, as had been employed by Crown.
There was no hiatus in the operation of the business.
It is abundantly clear that STP became a legal successor to
Crown under the criterion set forth in Fall River Dying Corp. v.
NLRB, 482 U.S. 27, 43 (1987), wherein the Supreme Court set
out the test to determine whether a substantial continuity of
identity is present:

Whether the business of both employers is essentially
the same and whether the employees in the new company
are doing the same jobs in the same working conditions
under the same supervisors and whether the new entity has
the same production process, produces the same products
and basically has the same body of customers.

Since no one factor in determinative the totality of the circum-
stances must be examined in order to decide whether an em-
ployer is the successor to a predecessor’s bargaining obligation.
Respondent STP satisfies all of the Fall River criteria and contin-
ues as the employing entity and thus a legal successor to Crown.
While many other cases could be cited, in this case the evi-
dence is so clear that it is unnecessary to go through the Burns
Security Services, 406 U.S. 272 (1972), case and its prodigy,
particularly when its compared with Capital Steel & Iron Co.,
299 NLRB 484, 487 (1990). Thus there is no serious conten-
tion that STP is not a successor to Crown and thus responsible
for Crown’s bargaining obligations with the Union.
III. ALLEGED UNFAIR LABOR PRACTICES
ALLEGEDLY
COMMITTED BY CROWN
As indicated above on October 15, 1996, Respondent STP
purchased certain assets of Crown including its plant 3 in Tal-
ladega, Alabama and all of the equipment and inventory for that
plant, but not Respondent Crown’s receivable. Additionally
STP bought another facility in Talladega from Respondent
Crown which has been referred to as plant 1 and is located
adjacent to and uses small tools and equipment from Respon-
dent’s other plants. However, production by Crown in plant 1
was not purchased by STP when it purchased the building in
early November 1996.
As noted, there is no issue that STP is a successor to Crown,
therefore as a successor it may not, without affirmative proof,
show that it was not aware of any unfair labor practices of Crown
prior to its successorship. The evidence is mixed as to whether
STP was aware of Crown’s alleged unfair labor practices.
The practice by Crown before and after it entered into an
agreement with UNITE and its predecessor was to permit em-
ployees with more than 10 years seniority, and thus, entitled to
three weeks vacation to request that they be paid for the third
vacation week in lieu of taking vacation. This practice was in-
corporated into the agreement in part and provided that the vaca-
tion year commenced with the last full pay period prior to June
CROWN TEXTILE CO. 209
30, the following year. The eligible employees could not request
this pay in lieu of vacation prior to the third week in January.
As noted, Crown filed for Bankruptcy on January 2, 1996, at
which time it employed 15 employees in plant 1 and 35 em-
ployees in plant 3. STP bought the assets and continued to
operate the 2 plants with 27 employees.
Shortly after STP began operations UNITE made a demand
that it bargain with UNITE as a successor employer. A short
time later STP published an article in the Talladega newspaper
that it would bargain with the Union.
Prior to scheduling a bargaining date an admitted unit em-
ployee, Ronald Roberts, circulated a petition which was signed
by 25 of the 27 employees stating they did not want UNITE or
any other union to represent them. (R-STP-1) as a result this
was filed as an RD Petition to decertify the Union.
Upon receipt of this Petition STP stated that they had a rea-
sonable doubt as to the Union’s continued majority status and
refused to bargain. This action brought about the relevant
charges herein.
The Government and the Union contend that STP cannot
raise a question concerning representation, or majority status,
during the pendency of alleged unremedied unfair labor prac-
tices against its predecessor.
The complaint alleges that Respondent Crown altered the
schedule of vacation pay for unit employees without bargaining
with the Union over those changes or the efforts of such changes.
This allegation is not borne out by the evidence. The Union was
well aware that the employer was in precarious financial circum-
stances at this time. The CEO or plant manager immediately noti-
fied the Union that it could not pay the inordinate number of re-
quests as it had in the past. Respondent says that it received 60
requests for vacation pay under this plan, whereas in the past it had
received 5–15 such requests. When Surratt, the union business
agent, was notified of this, he and the plant manager had several
meetings in which they discussed the employer’s financial inability
to pay the vacation requests prior to August 1.
Several options were discussed. Among them total payment
to some of those requesting them and a breakdown of those
requesting to pay 1 day each payday. James Surratt, the B.A.
considered all of these. There were at least three negotiating
sessions held, however, no agreement was reached.
Finally, about May 9, the employer posted a notice to employ-
ees; advising them that the payments would be made—one day at a
time—on alternate paydays or in a lump sum on August 1, 1996.
The Union, thereafter filed charges alleging that because the to-
tal vacation payment was not made prior to June 30, 1996. Crown
had violated the contract and Section 8(a)(1), (5) and Section 8(d)
of the Act for failure to notify, negotiate, and bargain with the Un-
ion over the change of the vacation payment schedule.
First, Crown notified the Union immediately that because of
its precarious financial condition it would not be able to pay the
vacation pay as usual. Thereafter the plant manager and the
union business agent met on several occasion to negotiate a
way of paying the pay. A number of options were considered
including some by Surratt, the union B.A. and the plant man-
ager—an option was presented by Surratt to pay some of the 60
employees who had requested vacation pay each week, but was
refused by Respondent because of its financial condition.
There were also discussions concerning paying each of the 60 1
day a week during each pay period. At that time Respondent
rejected this for financial reasons. Neither the Government nor
the Union contends that STP was acting in bad faith or to dis-
credit the Union.
Analysis
Based upon the following, I find that the nature of Crown’s
alleged unfair labor practices, id altering or changing its vaca-
tion pay policy did not have a causal relationship with the Un-
ion’s loss of majority support.
In Master Slack Corp., 271 NLRB 78 (1984), the Board
adopted a 4-factor test to determine whether there exists a
causal relationship between unremedied unfair labor practices
and a union’s loss of majority support:

(1) the length of time between the unfair labor prac-
tices and the withdrawal (or refusal) of recognition; (2) the
nature of the illegal acts, including the possibility of their
detrimental or lasting effect on employees; (3) any possi-
ble tendency to cause employee disaffection from the Un-
ion; and (4) the effect of the unlawful conduct on em-
ployee morale, organizational activities, and membership
in the union.

Here, Crown’s alleged unfair labor practice; its’ inability to
pay all requested vacation pay prior to June 30, but instead did
not complete said payments for a month, until August 1, is not
of the nature of an illegal act having a detrimental or lasting
effect on employees. Neither does it have a tendency to cause
disaffection from the Union nor have an effect on employee
morale, organizational activities, or membership in the Union.
There is no contention by the Government or the Union that
Crown could have, from its financial ability, made the vacation
payments earlier than it did. Nor do they contend that its failure
to do so arose from antiunion animus or to discredit the Union.
There is not a scintilla of evidence that either Crown or STP
had any animus toward the Union or engaged in said conduct to
rid itself of the Union.
CONCLUSIONS OF LAW
1. Respondents Crown and STP are employers within the
meaning of Section 2(2), (6), and (7) of the Act as admitted.
2. The Union and its predecessor are labor organizations
within the meaning of Section 2(5) of the Act as admitted.
3. Respondent Crown did not violate Section 8(a)(1), (5) or
Section 8(d) as alleged, and even if there was a technical viola-
tion, beyond the control of Crown it would not effectuate the
purposes of the Act to issue a remedial Order herein.
[Recommended Order omitted from publication.]