S. Bent & Bros.

National Labor Relations Board - Board Decisions

Oct 1, 2001

336 N.L.R.B. 788 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
S. Bent & Brothers and Samuel Bent LLC and Inter-
national Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, Local
154, AFL–CIO a/w Communication Workers of
America

Samuel Bent LLC and International Union of Elec-
tronic, Electrical, Salaried, Machine and Furni-
ture Workers, Local 154, AFL–CIO a/w Com-
munication Workers of America. Cases 1–CA–
37851, 1–CA–37988, and 1–CA–38328
October 1, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On March 2, 2001, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent Samuel Bent LLC (Samuel Bent) filed cross-
exceptions and a supporting brief.1 The General Counsel
and Samuel Bent each filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,2
and conclusions3 except as modified below, and to adopt
the recommended Order4 as modified and set forth in full
below.
1. The judge found that the Respondent Samuel Bent is
a perfectly clear successor to Respondent Bent within the
meaning of NLRB v. Burns Security Services, 406 U.S.
272 (1972). He found further that Samuel Bent did not
have sufficient grounds to support a good-faith doubt that
the Union retained the support of a majority of unit em-
ployees after the transition and, consequently, it violated
Section 8(a)(5) and (1) of the Act when it failed and re-
fused to recognize and bargain with the Union and im-
plemented unilateral changes in terms and conditions of
employment. Alternatively, the judge found that Samuel
Bent could not have lawfully refused to recognize the
Union even if it held a good-faith doubt that the Union
retained majority support, under the Board’s rationale in
St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). We
agree with the judge, and we adopt and elaborate on his
reasoning as follows.

1 No exceptions were filed by Respondent S. Bent and Brothers
(Bent).
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s conclusions of law to conform to his
findings.
4 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
There is no longer any dispute that Samuel Bent was a
Burns successor to Bent, as Samuel Bent has not ex-
cepted to this finding. Samuel Bent was therefore obli-
gated to recognize and bargain with the Union concern-
ing the terms and conditions of employment of unit em-
ployees. Samuel Bent claims that it refused to recognize
the Union after receiving information that raised a doubt
that the Union continued to represent a majority of unit
employees after the transition. To support its purported
doubt, Samuel Bent relies on the statements of six to
eight employees that the Union was not important, the
statement of one employee that he did not need the Un-
ion anymore, the statement of another employee that he
did not care about the Union, and the failure of a major-
ity of employees to authorize dues checkoff.
We agree with the judge that the factors relied on by
Samuel Bent are insufficient to support a good-faith
doubt that the Union retained the support of a majority of
unit employees. As the judge noted, the comments by
employees that the Union was not important right now
compared to their jobs were not negative and were lim-
ited to the immediate concern of retaining their jobs after
the sale of the business to Samuel Bent. While two other
employees made arguably negative statements regarding
the Union, those employees did not purport to represent
the sentiments of the approximately 54 other employees
at the time. Further, it is well settled that a low percent-
age of employees using dues checkoff does not establish
that those employees do not want the Union to be their
collective-bargaining representative. Henry Bierce Co.,
328 NLRB 646, 649 (1999), enfd. in relevant part and
remanded 234 F.3d 1268 (6th Cir. 2000); and Petroleum
Contractors, 250 NLRB 604 (1980), enfd. 671 F.2d 496
(3d Cir. 1981).
In Levitz, 333 NLRB 717 (2001), which issued subse-
quent to the judge’s decision, the Board overruled the
“good-faith doubt” standard and held that “an employer
may unilaterally withdraw recognition from an incum-
bent union only where the union has actually lost the
support of the majority of the bargaining unit employ-
ees.” Id. at 717. The Board further held, however, that it
would not apply the new standard in cases pending when
Levitz issued, such as the case here. Id at 723. Accord-
ingly, in the present case, we have applied the good-faith
doubt standard in the manner that it has been interpreted
336 NLRB No. 72
S. BENT & BROS. 789
by the Supreme Court in Allentown Mack Sales & Ser-
vice v. NLRB, 522 U.S. 359 (1998). The Supreme Court
in Allentown Mack held that the “good-faith doubt” stan-
dard must be interpreted to permit an employer to act
where it has a “reasonable uncertainty” of the union’s
majority status, so that the test could be phrased in terms
of whether the employer “lacked a genuine, reasonable
uncertainty about whether [the union] enjoyed the con-
tinuing support of a majority of unit employees.” Id. at
367. We agree with the judge that Samuel Bent's as-
serted basis for its refusal to recognize the Union fails to
meet the requisite test: a “genuine, reasonable uncer-
tainty about whether [the Union] enjoyed the continuing
support of a majority of unit employees.”
We further agree with the judge that Samuel Bent’s re-
fusal to recognize the Union would be unlawful even if it
could show that the refusal was grounded on a good-faith
doubt that the Union continued to have majority support.
In St. Elizabeth Manor, Inc., supra, the Board returned to
the principle expressed in Landmark International
Trucks, 257 NLRB 1375 (1981), enf. denied 699 F.2d
815 (6th Cir. 1983), that a successor employer violates
Section 8(a)(5) if it withdraws recognition before a rea-
sonable period of time for bargaining has elapsed. In Inn
Credible Caterers, Ltd., 333 NLRB 898 (2001), which
issued subsequent to the judge’s decision, the Board ex-
plained that under the holding in St. Elizabeth Manor,
once a successor employer’s obligation to bargain at-
taches, a union is entitled to a reasonable period of bar-
gaining without challenge to its majority status—whether
through a decertification effort, election petitions, or em-
ployer claims of union loss of majority support or good-
faith doubt as to that majority status. Id. at 898. In this
case, a reasonable period for bargaining clearly had not
elapsed when Samuel Bent refused to recognize the Un-
ion based on an alleged good-faith doubt of the Union’s
continuing majority status.
Based on the above, we conclude, in agreement with
the judge, that Samuel Bent violated Section 8(a)(5) and
(1) by failing and refusing to recognize and bargain with
the Union and by implementing unilateral changes in unit
employees’ terms and conditions of employment.5

5 Samuel Bent argues that the issue of its refusal to bargain is moot
because it ceased business operations on February 2, 2001, after de-
faulting on its loan obligations. According to Samuel Bent, its lender
has taken over its plant and inventory. It is well settled, however, that
mere discontinuance of business does not moot allegations of unfair
labor practices against a respondent. See, e.g., Redway Carriers, Inc.,
301 NLRB 1113 (1991) (issuing affirmative bargaining order and di-
recting make-whole remedy despite finding that respondent was de-
funct). Accordingly, we find no merit in Samuel Bent’s argument that
the issue of its refusal to bargain is moot.
2. We further agree, for the reasons fully set forth in
Caterair International, 322 NLRB 64 (1996), and Wil-
liams Enterprises, 312 NLRB 937 (1993), enfd. 50 F.3d
1280 (4th Cir. 1995), that an affirmative bargaining order
is warranted in this case as a remedy for Samuel Bent’s
unlawful refusal to recognize and bargain with the Un-
ion. We adhere to the view, reaffirmed by the Board in
Caterair, that such an order is “the traditional, appropri-
ate remedy for an 8(a)(5) refusal to bargain with the law-
ful collective-bargaining representative of an appropriate
unit of employees.” 322 NLRB 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 Vincent, the court summarized
the court’s law as requiring that an affirmative bargain-
ing order “must be justified by a reasoned analysis that
includes an explicit balancing of three considerations: (1)
the employees’ Section 7 rights; (2) whether other pur-
poses of the Act override the rights of employees to
choose their bargaining representatives; and (3) whether
alternative remedies are adequate to remedy the viola-
tions of the Act.” 209 F.3d 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 Samuel
Bent’s unlawful refusal to recognize and bargain with the
Union. In contrast, the affirmative bargaining order and
its attendant bar to raising a question concerning the Un-
ion’s continuing majority status for a reasonable time
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation,
because the duration of the order is no longer than is rea-
sonably necessary to remedy the ill effects of the viola-
tions.
Samuel Bent never recognized or bargained with the
Union after the transition, despite repeated demands by
the Union. Moreover, Samuel Bent unilaterally imple-
mented a health insurance plan and modified vacation
policies. These actions clearly signal to employees Sam-
uel Bent’s continuing disregard for their bargaining rep-
resentative and would likely have a long-lasting effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
(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 discouraging support for the Union. It also ensures
that the Union will not be pressured, by the possibility of
a decertification petition or by Samuel Bent’s withdrawal
of recognition, to achieve immediate results at the bar-
gaining table following the Board’s resolution of its un-
fair labor practice charge 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 Samuel
Bent’s violations because it would permit a decertifica-
tion petition to be filed before Samuel Bent had afforded
the employees a reasonable time to regroup and bargain
through their representative in an effort to reach a collec-
tive-bargaining agreement. Such result would be particu-
larly unfair in circumstances such as those here, where
Samuel Bent’s unfair labor practices were of a continu-
ing nature and were likely to have a continuing effect,
thereby tainting any employee disaffection from the Un-
ion 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 continued representa-
tion.
Finally, the successor bar rule adopted in St. Elizabeth
Manor effectively provides the same reasonable period
for bargaining here as would an affirmative bargaining
order.
For all of the foregoing reasons, we find that an af-
firmative bargaining order with its temporary decertifica-
tion bar is necessary to fully remedy the violations in this
case.
3. The judge found that Samuel Bent could not be held
liable as a successor under Golden State Bottling Co. v.
NLRB, 414 U.S. 168 (1973), for unremedied unfair labor
practices committed by Bent, because it did not know at
the time it purchased Bent’s assets that unfair labor prac-
tice charges had been filed by the Union. We disagree.
Preliminarily, the fact that Samuel Bent did not know
of the unfair labor practice charges filed by the Union
does not preclude a finding that it is a Golden State suc-
cessor. In Golden State the Court held that one who ac-
quires and operates a business in basically unchanged
form, under circumstances that charge him with notice of
an outstanding Board order against his predecessor, can
be held responsible for remedying his predecessor’s
unlawful conduct. The issue was not raised in Golden
State, and therefore the Court did not pass on, whether
knowledge of unfair labor practices of a predecessor
would be sufficient to hold a successor liable, absent a
formal charge. However, the Board and courts have
since determined that the public policy reasons underly-
ing the decision in Golden State apply in such circum-
stances.6 Thus, in determining whether a successor had
notice of its potential liability, the Board does not con-
sider whether the successor has seen the particular
charges or complaints, but rather, whether the successor
was aware of conduct that the Board ultimately found
unlawful. Robert G. Andrew, Inc., 300 NLRB 444
(1990); NLRB v. St. Mary’s Foundry Co., 860 F.2d 679,
681–682 (6th Cir. 1988);7 and Cumberland Nursing &
Convalescent Center, 263 NLRB 428, 434 (1982). Re-
sponsibility for establishing that a successor was without
notice of its predecessor’s unfair labor practices rests
with the successor. Robert G. Andrew, Inc., supra; and
Blu-Fountain Manor, 270 NLRB 199, 210 (1984), enfd.
sub nom. NLRB v. Jarm Enterprises, 785 F.2d 195 (7th
Cir. 1986). We find that Samuel Bent has not carried
that burden.
The unfair labor practices committed by Bent con-
sisted of unilaterally terminating unit employees’ medi-
cal, dental, and vision plans; group term life insurance;
group term accidental death and dismemberment insur-
ance; long-term disability insurance; and the section 125
plan. The record shows that before Samuel Bent ac-
quired Bent’s assets, Samuel Bent was aware, through its
owner and president, Hamburg, of the existence of the
collective-bargaining agreement and the provisions of
that agreement requiring Bent to provide a medical plan
and a dental plan. Samuel Bent was also aware that Bent
had been providing its employees with a vision plan,
group term life insurance, group term accidental death

6 Regarding the public policy underlying its decision, the Court
stated
Avoidance of labor strife, prevention of a deterrent effect on the exer-
cise of rights guaranteed employees by Section 7 of the Act, and pro-
tection for the victimized employee-all important policies subserved
by the National Labor Relations Act-are achieved at a relatively
minimal cost to the bona fide successor. Since the successor must
have notice before liability can be imposed, “his potential liability for
remedying the unfair labor practices is a matter which can be reflected
in the price he pays for the business, or he may secure an indemnity
clause in the sales contract which will indemnify him for liability aris-
ing from the seller’s unfair labor practices.”
414 U.S. at 184–185 (citing Perma Vinyl Corp., 164 NLRB 968, 969
(1967), enfd. sub nom. U.S. Pipe & Foundry Co. v. NLRB, 398 F.2d
544 (5th Cir. 1968).
7 The court in St. Mary’s Foundry also stated that, in addition to
awareness of the conduct itself, “appreciation of the significance of the
predecessor’s conduct” is a key factor in determining successor liability
under Golden State. 860 F.2d at 682. As explained below, we reject
Samuel Bent’s argument that it lacked an appreciation of the fact that
Bent’s termination of the medical, dental, and vision plans could consti-
tute an unfair labor practice.
S. BENT & BROS. 791
and dismemberment insurance, long-term disability in-
surance, and a section 125 plan. Before acquiring Bent’s
assets, Samuel Bent learned that Bent had terminated the
medical, dental, and vision plans. Samuel Bent argues,
however, that it was not aware of the circumstances of
the termination of the medical, dental, and vision plans,
including whether or not Bent bargained with the Union
before terminating the plans, and it therefore lacked an
appreciation of the fact that Bent’s termination of the
plans could constitute an unfair labor practice. We are
not persuaded by that argument.
The Board has long held that a successor that takes
over a business with actual or constructive knowledge of
conduct amounting to an unfair labor practice can be held
liable to remedy the unfair labor practice. Brook Farm
Foods, Inc., 101 NLRB 1486, 1487 (1952); and L. B.
Hosiery Co., 88 NLRB 1000 (1950), enfd. 187 F.2d 335
(3d Cir. 1951), cert. denied 347 U.S. 976 (1954). The
concept of constructive knowledge incorporates the no-
tion of “due diligence,” i.e., a party is on notice not only
of facts actually known to it but also facts that with “rea-
sonable diligence” it would necessarily have discovered.
Nursing Center at Vineland, 318 NLRB 337, 339 (1995).
Thus, while a successor employer is not required to ag-
gressively investigate its predecessor in order to meet the
reasonable diligence standard, it cannot with impunity
ignore its predecessor’s noncompliance with a collective-
bargaining agreement, as Samuel Bent in this case did,
and then rely on its ignorance to argue that it was not on
notice of the predecessor’s unfair labor practices. Here,
Samuel Bent was on notice of the existence of the collec-
tive-bargaining agreement, of its provisions for medical
and dental plans, of the fact that Bent had also been pro-
viding employees with a vision plan, and of Bent’s ter-
mination of all three plans. Reasonable diligence re-
quired Samuel Bent to inquire as to whether Bent had
bargained with the Union before terminating these plans.
Therefore, we find that Samuel Bent knew, or reasonably
should have known, that Bent had terminated the unit
employees’ medical, dental, and vision plans in violation
of Section 8(a)(5) and (1) of the Act. See South Harlan
Coal, Inc., 844 F.2d 380, 386 (6th Cir. 1988) (evidence
supported the finding that successor “had knowledge, or
reasonably should have known” of predecessor’s unfair
labor practices; successor was therefore liable under
Golden State).
We further find that Samuel Bent knew or should have
known that Bent had terminated the group term life in-
surance, group term accidental death and dismemberment
insurance, long-term disability insurance, and section
125 plan in violation of the Act. Through its due dili-
gence investigation, Samuel Bent knew that Bent had
been providing its employees with each of these benefit
plans, as well as the medical, dental, and vision plans.
Samuel Bent also knew that Bent had terminated the
medical, dental, and vision plans. Reasonable diligence
required Samuel Bent to inquire whether Bent had termi-
nated any other benefit plans, and if so, whether Bent had
bargained with the Union first. Therefore, we find that
Samuel Bent knew, or reasonably should have known,
that Bent had terminated the group term life insurance,
group term accidental death and dismemberment insur-
ance, long-term disability insurance, and section 125
plan in violation of Section 8(a)(5) and (1) of the Act.8
We further find that other factors support finding
Samuel Bent to be a Golden State successor. The deter-
mination of whether a successor is obligated to remedy
its predecessor’s unfair labor practices involves a balanc-
ing of “the conflicting legitimate interests of the bona
fide successor, the public, and the affected employee[s].”
414 U.S. at 181. The balancing process includes an em-
phasis on protection for the victimized employee, who
may be “without meaningful remedy when title to the
employing business operation changes hands.” Id. (cit-
ing Perma Vinyl Corp., 164 NLRB at 969). Guided by
these principles, we find that the interests of the public
and the victimized employees in this case are best served
by requiring Samuel Bent to remedy the unfair labor
practices of its predecessor, Bent.9 Further, it does not
work an undue hardship on Samuel Bent. As the Board
observed in Perma Vinyl, the successor who has taken
over control of the business is generally in the best posi-
tion to remedy unfair labor practices effectively. 164
NLRB at 969. Moreover, when Samuel Bent substituted
itself in the place of Bent, it became the beneficiary of
Bent's unremedied unfair labor practices. Finally, since
Samuel Bent had notice of Bent’s unfair labor practices,
its potential liability for remedying the unfair labor prac-
tices is a matter that it could have reflected in the price it
paid for the business. 414 U.S. at 184–185 (quoting
Perma Vinyl, supra).

8 In the absence of record evidence that Samuel Bent knew of Bent’s
termination of the group term life insurance, group term accidental
death and dismemberment insurance, long-term disability insurance,
and sec. 125 plan, Member Truesdale would not find Samuel Bent
jointly and severally liable under Golden State for Bent’s termination of
those plans in violation of Sec. 8(a)(5) and (1) of the Act. Thus, Mem-
ber Truesdale does not agree with his colleagues that reasonable dili-
gence required Samuel Bent, upon learning that Bent had terminated
the medical, dental, and vision plans, to inquire whether Bent had ter-
minated any other benefit plans and, if so, whether Bent had bargained
with the Union first.
9 Interests of the public, which must be weighed, include avoidance
of labor strife and prevention of a deterrent effect on the exercise of
Sec. 7 rights, which may occur if victimized employees find themselves
without remedy. 414 U.S. at 184–185.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
In this regard, Samuel Bent contends that the rationale
stated in Golden State and Perma Vinyl for imposing
liability on a purchaser for the unfair labor practices of
the seller—that the purchaser can reflect its potential
liability in the negotiated purchase price or through in-
demnification by the seller—is missing in this case.
Samuel Bent purchased the assets of Bent from Wells
Fargo and First International Bank in a secured private
party transaction for approximately $2,284,000. Accord-
ing to Hamburg, that price, which was the amount of the
banks’ outstanding loans to Bent plus several hundred
dollars, was not negotiable. Samuel Bent contends,
therefore, that it should not be required to remedy Bent’s
unfair labor practices, as it had no opportunity to insulate
itself from liability. We do not agree.
As discussed, the Perma Vinyl rationale adopted by the
Court in Golden State for holding a purchaser responsi-
ble for the seller’s unfair labor practices is predicated on
the purchaser’s ability to reflect the potential liability in
the negotiated purchase price or through indemnification
by the seller. 414 U.S. at 185. Thus, the Board has held
that some pecuniary or security interest, or other “clearly
identifiable and connecting interest” between the prede-
cessor and the successor, is critical to establish a Golden
State successorship. Glebe Electric, Inc., 307 NLRB
883, 886 (1992). Moreover, even where a business rela-
tionship or other “clearly identifiable and connecting
interest” is found to exist, the Board will examine the
nature of the relationship to determine if the purchaser
could have effectively negotiated a method of insulation
from liability for the seller’s unfair labor practices. Gen-
erally, if the purchaser had no opportunity to insulate
itself from liability, no Golden State successorship will
be found. Hill Industries, 320 NLRB 1116 (1996).
We find that there was a business relationship, or
“clearly identifiable and connecting interest,” between
Samuel Bent and Bent. Bent remained, through the sale,
a viable corporate entity, and its assets, although sold
through Wells Fargo and First International, were still
Bent’s assets, not the banks’ assets. Further, there was
nothing in the nature of the transaction to indicate that
Samuel Bent could not have effectively negotiated a
method of insulation from liability for Bent’s unfair labor
practices. That Samuel Bent purchased the assets in a
secured private party sale through the banks is not, in
itself, dispositive of this issue. Nor is Hamburg’s testi-
mony that the banks were unwilling to negotiate disposi-
tive, particularly considering that the record contains no
evidence that Hamburg ever requested a lower price from
the banks. Furthermore, the price fixed by the banks and
paid by Samuel Bent was approximately $2,284,000.
This price reflected the amount of Bent’s indebtedness
rather than the actual value of the assets. While the re-
cord does not indicate their value, less than 2 months
before purchasing Bent’s assets through the banks, Ham-
burg offered to purchase the assets directly from Bent for
approximately $4,500,000. Thus, by purchasing the as-
sets from the banks instead of Bent, it received a reduc-
tion in price well in excess of the liability for Bent’s un-
fair labor practices. Contrary to Samuel Bent, we do not
think that imposing liability in these circumstances im-
poses an undue hardship on Samuel Bent.10 Nor do we
think that it will have the effect, as Samuel Bent argues,
of “chilling investor's ardor for purchasing failing com-
panies and saving jobs.” Accordingly, we reverse the
judge and find that Samuel Bent is a successor under
Golden State, jointly and severally liable with Bent for
remedying Bent’s unlawful termination of the employee
benefit plans.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4.
“4. Respondent Bent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) by termi-
nating the medical, dental, and vision plans; group term
life insurance; group accidental death and dismember-
ment insurance; long-term disability insurance; and sec-
tion 125 plan.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
A. The Respondent, S. Bent & Brothers, Gardner,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally and without notice to the Union termi-
nating the medical, dental, and vision plans; group term
life insurance; group term accidental death and dismem-
berment insurance; long-term disability insurance; and
the section 125 plan.
(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) Jointly and severally with Respondent Samuel Bent
LLC, reimburse unit employees for any expenses ensuing
from Respondent S. Bent and Brothers’ unlawful termi-
nation of the medical, dental, and vision plan; group term
life insurance; group term accidental death and dismem-

10 As the Board and courts have recognized, successorship is an eq-
uitable doctrine. Consequently, fairness is a prime consideration.
S. BENT & BROS. 793
berment insurance; long-term disability insurance; and
section 125 plan, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, mail
signed and dated copies of the attached notice marked
“Appendix A”11 to the Union and to all unit employees
employed as of January 19, 2000. Copies of the notice,
on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized
representative, shall be mailed at the Respondent’s ex-
pense to the last known address of each employee.
(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.
B. The Respondent, Samuel Bent LLC, Gardner, Mas-
sachusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, Local 154, AFL–
CIO a/w Communication Workers of America, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All production and maintenance employees employed
by Respondent Samuel Bent at the Gardner, Massachu-
setts facility, excluding all other employees, office and
clerical employees, firemen and employees of the re-
search and development department, executives, guards
and supervisors as defined in the Act.

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.”
(b) Unilaterally changing wages, hours, and other con-
ditions of employment without bargaining about these
changes with the Union.
(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 collectively
with the Union as the exclusive representative of the Re-
spondent’s employees in the above unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed document.
(b) On request of the Union, rescind the unilateral
changes in vacation policies and health insurance, and
make the employees whole for any loss of earnings and
other benefits attributable to its unlawful conduct. Back-
pay shall be computed in accordance with Ogle Protec-
tion Service, supra, with interest as prescribed in New
Horizons for the Retarded, supra. Further, the Respon-
dent shall reimburse unit employees for any expenses
ensuing from the unlawful conduct, as set forth in Kraft
Plumbing & Heating, supra, such amounts to be com-
puted in the manner set forth in Ogle Protection Service,
supra, with interest as prescribed in New Horizons for the
Retarded, supra.
(c) Jointly and severally, with Respondent S. Bent and
Brothers, reimburse unit employees for any expenses
ensuing from Respondent S. Bent and Brothers’ unlawful
termination of the medical, dental, and vision plans,
group term life insurance; group term accidental death
and dismemberment insurance; long-term disability in-
surance; and section 125 plan, as set forth in Kraft
Plumbing & Heating, supra, such amounts to be com-
puted in the manner set forth in Ogle Protection Service,
supra, with interest as prescribed in New Horizons for the
Retarded, supra.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Gardner, Massachusetts facility copies of the attached
notice marked “Appendix B.”12 Copies of the notice, on
12 See fn. 11, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
forms provided by the Regional Director for Region 1,
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 facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 11, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX A
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 unilaterally terminate the medical,
dental, and vision plans; group term life insurance; group
term accidental death and dismemberment insurance;
long-term disability insurance; and the section 125 plan.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, jointly and severally with Samuel Bent
LLC, reimburse unit employees, with interest, for any
expenses ensuing from our unlawful termination of the
medical, dental, and vision plans; group term life insur-
ance; group term accidental death and dismemberment
insurance; long-term disability insurance; and the section
125 plan

S. BENT & BROTHERS

APPENDIX B
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 refuse to recognize and bargain in
good faith with International Union of Electronic, Elec-
trical, Salaried, Machine And Furniture Workers, Local
154, AFL–CIO a/w Communication Workers of America
as the exclusive collective-bargaining representative of
employees in the following appropriate unit.

All production and maintenance employees employed
by Respondent Samuel Bent at the Gardner, Massachu-
setts facility, excluding all other employees, office and
clerical employees, firemen and employees of the re-
search and development department, executives, guards
and supervisors as defined in the Act.

WE WILL NOT unilaterally change wages, hours, and
other conditions of employment without bargaining
about these changes with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL recognize, and on request, bargain collec-
tively with the Union as the exclusive representative of
our employees in the above unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment and, if an agreement is reached, embody it
in a signed document.
WE WILL, on request of the Union, rescind our
unlawful unilateral changes in terms and conditions of
employment, and WE WILL make employees whole for
any loss of earnings and other benefits attributable to our
unlawful conduct, with interest.
WE WILL, jointly and severally with S. Bent and
Brothers, reimburse unit employees, with interest, for
S. BENT & BROS. 795
any expenses ensuing from S. Bent and Brothers’ unlaw-
ful termination of the medical, dental, and vision plans;
group term life insurance; group term accidental death
and dismemberment insurance; long-term disability in-
surance; and the section 125 plan.
SAMUEL BENT LLC

Thomas J. Morrison, Esq., for the General Counsel.
John V. Woodard, Esq., of Boston, Massachusetts, for Respon-
dent S. Bent & Brothers.
Michael F. Kraemer, Esq., of Philadelphia, Pennsylvania, for
Respondent Samuel Bent LLC.
Wendy M. Bittner, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on December 4 and 5, 2000,1 in Bos-
ton, Massachusetts, pursuant to consolidated complaints and
notices of hearing (the complaint) issued by the Acting Re-
gional Director for Region 1 of the National Labor Relations
Board on September 5. The complaint, based on original and
amended charges in the above-noted cases filed by Interna-
tional Union of Electronic, Electrical, Salaried, Machine, and
Furniture Workers, Local 154, AFL–CIO (the Charging Party
or Union), alleges that S. Bent & Brothers and Samuel Bent
LLC, its successor (Respondent Bent or Bent & Brothers) and
Samuel Bent LLC (Respondent Samuel Bent or Bent LLC), has
engaged in certain violations of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party, Respondent Bent, and
Respondent Samuel Bent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Bent was at all material times a corporation up
until about February 11, with an office and place of business in
Gardner, Massachusetts, engaged in the manufacture and sale
of furniture. Respondent Samuel Bent, at all times since Feb-
ruary 11, is a limited liability company with an office and place
of business at the Gardner facility and has been engaged in the
manufacture and sale of furniture. Both Respondent Bent and
Respondent Samuel Bent, in conducting its business operations,
purchased and received at the Gardner facility goods valued in
excess of $50,000 directly from points outside the Common-
wealth of Massachusetts. Both Respondent Bent and Respon-
dent Samuel Bent admit and I find that they are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

1 All dates are in 2000 unless otherwise indicated.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
There is no dispute that on February 11, Respondent Bent
ceased all operations on the sale of its assets through a secured
party private sale to Respondent Samuel Bent and that on or
about May 3, Respondent Bent filed a voluntary petition in the
United States Bankruptcy Court District Of Massachusetts pur-
suant to Chapter 7 of Title 11 of the United States Code.
The Board, by the General Counsel, filed a motion in United
States District Court for the District of Massachusetts, seeking
a preliminary injunction under Section 10(j) of the Act ordering
Respondent Samuel Bent to recognize and negotiate with the
Union. By memorandum and order dated August 11, United
States District Court Judge Nathaniel M. Gorton denied the
relief sought by the General Counsel. Judge Gorton’s decision
has been appealed to the United States Court of Appeals for the
First Circuit.
At all material times G. L. (Peter) Alcock was the president
of Respondent Bent, Diane M. Myntti served as chief financial
officer for Respondent Bent and held the position of comptrol-
ler for Respondent Samuel Bent, Arcelia A. Miarecki was the
director of administration for Respondent Bent and served as
the director of human resources for Respondent Samuel Bent,
Anthony J. Menegoni was the plant manager for Respondent
Bent and served as a manager with Respondent Samuel Bent
and Peter Beestrum held the position of vice president/general
manager for Respondent Samuel Bent.
B. Facts
Alcock purchased Bent & Brothers in December 1992. At
that time the Union represented the production and mainte-
nance employees. Bent & Brothers and the Union were parties
to a collective-bargaining agreement dated October 1, 1997, to
September 30 (GC Exhs. 26 and 27). The parties’ agreement
contained a number of employees’ plans including medical,
dental, and vision, group term life insurance, group term acci-
dental death & dismemberment insurance, short-and long-term
disability, and a 401(k) plan.
In July 1999, Respondent Bent experienced financial diffi-
culties due to its failure to integrate a new computer system at
the Gardner facility and the loss of skilled employees that
proved difficult to replace. Alcock explored a number of op-
tions to sell the business including contacting a broker. In Au-
gust 1999, the broker put Eric Hamburg, president of Industrial
Renaissance, in touch with Alcock to explore purchasing the
business. Hamburg visited the Gardner facility, reviewed pre-
sent and recent past financial statements, but after serious con-
sideration declined to make an offer to purchase the business.
After receipt of the August 1999 sales figures, that reflected
an upturn in business, Alcock forwarded the results to Ham-
burg. After reviewing those figures, Hamburg expressed a
renewed interest in purchasing the business. Alcock submitted
a nonbinding agreement to sell the business to Hamburg (GC
Exh. 12). By letter dated October 11, 1999, Hamburg submit-
ted a nonbinding letter of intent to acquire the assets of Re-
spondent Bent (GC Exh. 13). The letter of intent contained
provisions for a “Due Diligence” investigation of the financial
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
condition and other facets of the business.2 Additionally, the
letter of intent, made clear that Industrial Renaissance would
not assume any benefit plans pending at Respondent Bent.
Alcock and Hamburg exchanged numerous documents in-
cluding an asset purchase agreement. Alcock became discour-
aged when comparing the revisions to the letter of intent with
the provisions contained in the asset purchase agreement, and
by letter dated January 6, terminated the letter of intent (GC
Exh. 20).
After failing to agree to the sale of the business to Industrial
Renaissance, Respondent Bent notified its major creditors,
Wells Fargo Business Credit and First International Bank, that
it would begin to liquidate the company to pay off most of its
debt. Wells Fargo first instructed Respondent Bent to develop
a liquidation plan but by letter dated February 2, Wells Fargo
demanded that it pay all of its obligations. Wells Fargo notified
Respondent Bent that all collateral pledged to it would be sold
at a secured party private sale on or after February 8 (GC Exh.
21).
By letter dated February 11 (GC Exh. 22), Industrial Renais-
sance notified Respondent Bent that Bent LLC, a Delaware
limited liability company, has purchased all of its property and
assets from Wells Fargo and First International Bank. It also
informed Respondent Bent that it has not assumed any liabili-
ties, obligations, or indebtedness of Respondent Bent to any
person or entity. The operation of Respondent Bent ceased at
the close of business on Friday, February 11. The work force
had been reduced to 50 employees as of that date, the remain-
ing 80 employees having been laid off on January 21 and 28,
respectively.
Bent LLC began operations on Monday, February 14.
C. The 8(a)(1) and (5) Violations
1. Successorship
The General Counsel alleges in paragraph 5 of the complaint
in Cases 1–CA–37988 and 1–CA–38328 that since Bent LLC
purchased the business of Respondent Bent, and has continued
to operate the business at the Gardner facility in basically un-
changed form, and has employed as a majority of its employees
individuals who were previously employees at Respondent
Bent, that Bent LLC has continued the employing entity and is
a successor to Respondent Bent.
Bent LLC stipulated to the above facts but did not admit that
it was a successor to Respondent Bent.
The Board has held that “[a] mere change in ownership of
the employing business enterprise does not itself absolve the
new owner from the obligation to recognize and bargain with
the labor organization that represented the employees of the
former owner.” Premium Foods, Inc., 260 NLRB 708, 714
(1982), enfd. 709 F.2d 623 (9th Cir. 1983). Where there is

2 During the conduct of the “Due Diligence” investigation in De-
cember 1999, Hamburg learned that Respondent Bent had a union that
represented its production and maintenance employees, a current col-
lective-bargaining agreement and certain benefit plans in effect. Like-
wise, Hamburg admitted that in a conversation with Alcock on January
22, he learned that Respondent Bent had terminated its employee health
plan but that payments were being made to reimburse employees for
medical expenses.
substantial continuity between the predecessor business and the
new employer, and where the bargaining unit remains un-
changed and a majority of the employees hired by the new em-
ployer are represented by the union, the new employer will be
obligated to recognize and bargain with the union representing
the predecessor’s bargaining unit employees.3
In making a “continuity” determination, the Board looks to
whether (1) there has been substantial continuity of business
operations; (2) the new employer uses the same plant with the
same machinery, equipment and production methods; and (3)
the same or substantially the same employees are used in the
same jobs under the same working conditions and supervisors
to produce the same product or provide the same service.4 This
approach is primarily factual in nature and is based on a con-
sideration of the totality of the circumstances in any given
situation.
The totality of the circumstances here persuades me that
Bent LLC is a successor to Respondent Bent. In this regard,
Bent LLC admits that it like Respondent Bent is engaged in the
manufacture and sale of furniture at the same Gardner facility,
that Bent LLC’s initial work force consisted entirely of indi-
viduals employed solely by Respondent Bent, that Bent LLC
performs substantially the same services for substantially the
same customers, and Bent LLC employees perform the same
work using the same equipment.
In sum, I find that there is substantial continuity of business
operations between Bent LLC and Respondent Bent. Accord-
ingly, I find that, effective February 11, Bent LLC, as successor
to Respondent Bent, was obligated to bargain with the Union.
Since Respondent Samuel Bent refused to recognize and bar-
gain with the Union, it violated Section 8(a)(1) and (5) of the
Act (R. Samuel Bent Exh. 10).
2. “Perfectly Clear” successor
The General Counsel alleges in paragraph 18 of the com-
plaint in Cases 1–CA–37988 and 1–CA–38328 that Respondent
Samuel Bent was also a “perfectly clear” successor to Respon-
dent Bent pursuant to NLRB v. Burns Security Services, supra,
and was therefore, precluded from failing to recognize and
bargain with the Union over wages, benefits, and other terms
and conditions of employment for employees in the bargaining
unit.
In Burns, the Supreme Court stated:

Although a successor employer is ordinarily free to set initial
terms on which It will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him initially con-
sult with the employees’ bargaining representative before he
fixes terms. In other situations, however, it may not be clear
until the successor employer has hired his full complement of
employees that he has a duty to bargain with a union, since it
will not be evident until then that the bargaining representa-
tive represents a majority of the employees in the unit.

3 NLRB v. Burns Security Services, 406 U.S. 272 (1972); and Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).
4 Premium Foods, Inc., 260 NLRB at 714.
S. BENT & BROS. 797
Interpreting the Burns “perfectly clear” caveat, the Board, in
Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiam 529
F.2d 516 (4th Cir. 1975), ruled that when an employer who has
not yet commenced operations announces new terms before or
at the same time he invites the previous work force to accept
employment under those terms, it cannot be said that the new
employer plans to retain all of the employees in the unit, as
referred to in Burns, since the old employees may choose not to
accept employment in that situation. The Board held:

We believe the caveat in Burns, therefore, should be
restricted to circumstances in which the new employer has
either actively or, by tacit inference, misled employees
into believing they would all be retained without change in
their wages, hours or conditions of employment, or at least
to circumstances where the new employer . . . has failed to
clearly announce its intent to establish a new set of condi-
tions prior to inviting former employees to accept em-
ployment.

Thereafter, in Canteen Co., 317 NLRB 1052 (1995), enfd. 103
F.3d 1355 (7th Cir. 1997), the Board found that where a suc-
cessor employer expressed to the union its desire to have the
predecessor employees serve a probationary period, without
indication of any changes in employment terms, the new em-
ployer “effectively and clearly communicated to the union its
plan to retain the predecessor employees” and, since, as of that
date it was perfectly clear that the successor planned to keep
those employees, it “was not entitled to unilaterally implement
new wage rates thereafter.”
In applying the above case law to the subject case, the record
conclusively establishes that unit employees were tendered
unconditional offers of hire, with no indication that the prede-
cessor’s terms would be changed. In this regard, on February
11 after the sale was consummated, Miarecki credibly testified
that she was instructed by Beestrum to inform employees that
they would be offered the same rate of pay, seniority, and bene-
fits if they commenced employment with Respondent Samuel
Bent.
Based on the forgoing, I find that it was “perfectly clear” on
February 11, that the Unions’ majority status would continue in
the work force at the Gardner facility. Accordingly, Respon-
dent Samuel Bent was obligated on and after that date to recog-
nize the Union and to bargain with it prior to setting new terms
and conditions of employment.5
Consistent with the above discussion, I find that Respondent
Samuel Bent violated Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with the Union from Febru-
ary 11, and by unilaterally announcing and implementing uni-
lateral changes in conditions of employment. In this regard, as
set forth in paragraph 19 of the complaint, Respondent Samuel
Bent unilaterally and without notice to the Union on or about

5 The record reflects that the Union on February 15, March 1, and
again on March 15, requested that Respondent Samuel Bent recognize
the Union as the exclusive collective-bargaining representative of the
unit and bargain collectively with the Union (GC Exh. 29 and CP Exhs.
1 and 2).
March 1, provided health insurance to unit employees and on or
about May 9, modified vacation policies.
3. Affirmative defenses
Respondent Samuel Bent, in its answer to Cases 1–CA–
37988 and 1–CA–38328, raises as an affirmative defense that it
lawfully refused to recognize and bargain with the Union. In
this regard, Respondent Samuel Bent asserts that it had a rea-
sonable good-faith doubt that the Union did not enjoy the con-
tinuing support of a majority of unit employees, pursuant to the
United States Supreme Courts holding in Allentown Mack Sales
& Services v. NLRB, 522 U.S. 359 (1998). This affirmative
defense was enunciated to the Union on March 6 (GC Exh. 30),
and again on March 20 (GC Exh. 31). In the letter dated March
20, Beestrum also apprised the Union for the first time, that as
an independent and alternative ground, that a minority of the
bargaining unit belonged to the Union and paid via checkoff.6
Thus, Beestrum noted this lack of support, especially in a State
that does not have a right-to-work law, engenders considerable
uncertainty as to whether the majority of the employees support
the Union.
Miarecki testified that on the evening of February 11 (Fri-
day), she telephoned approximately 8–10 of the team leaders
that had worked that day to apprise them that the sale had gone
through.7 Miraecki told the team leaders that she did not know
the status of the union but she was authorized to offer them
employment with Bent LLC to commence on February 14
(Monday), at the same rate of pay, seniority and benefits. Be-
tween six and eight of the team leaders responded that the
status of the Union was not important right now compared with
getting their jobs back. One employee noted that he did not
care about the Union and another employee stated that he did
not need the Union anymore.
In order to contact the approximately 50 employees that were
on layoff, Miarecki was assisted on February 12 (Saturday), by
former Respondent Bent Plant Manager Menegoni and Union
Representative Bruce Blouin. Of the 13 or so employees that
Miarecki reached on Saturday, a few commented that the status
of the Union did not matter right then, it was more important to
get their jobs back. None of her contacts that day commented
negatively about the Union. Neither Blouin nor Menegoni
reported to Miarecki that any of the employees who they con-
tacted said anything negative about the Union.
On February 24, the Union filed a grievance alleging that
Respondent Samuel Bent refused to deduct union dues from the
paychecks of union members as required by the predecessor’s
contract. On receipt of the grievance, Miarecki inquired of
6 Art. 17.2 of the parties’ collective-bargaining agreement provides
that “[n]o employee shall be required to join the Union or maintain
their membership in the Union as a condition of employment.” If an
employee joined the Union, he/she was required to pay union dues. As
of the week ending February 12, 32 percent of the employees were
union members (Bent LLC Exh. 8).
7 On February 11, approximately 50 employees were employed by
and working for Respondent Bent. Those employees were scheduled to
return to work on February 14, since it had previously been announced
that all employees working would continue to do so until the shutdown
date on February 25, in the event no sale of the business occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
Beestrum whether she should deduct union dues from employ-
ees’ paychecks that formerly were on checkoff at Respondent
Bent. After consideration, Beestrum informed Miarecki to drop
the union dues. By letter dated March 6, Beestrum apprised the
Union that Bent LLC is not a party to a collective-bargaining
agreement with the Union, and is neither obligated by law, nor
by contract, to recognize or process this “grievance.”
On February 24, when meeting with Beestrum about the
grievance, Miarecki apprised him for the first time about the
conversations that she had with employees on February 11 and
12. It was based on this discussion that Respondent Samuel
Bent developed its affirmative defense that the Union no longer
represented a majority of the employees in the unit.
Based on the above discussion, I am not convinced that Re-
spondent Samuel Bent had a reasonable good-faith doubt that
the Union no longer represented a majority of the employees at
the Gardner facility. In this regard, the statements of six to
eight team leaders that the status of the Union is not important
right now in comparison to getting their jobs back cannot,
standing alone, support Bent LLC’s good-faith doubt that the
Union lacked the majority support of its employees. In my
opinion, it is obvious that employees confronted with the poten-
tial of losing their jobs, would first indicate that getting them
back and returning to work was of the utmost importance. It is
noted that Miarecki, after offering employment to the employ-
ees at the same rate of pay, seniority, and benefits, indicated
she did not know the status of the Union. Thus, it was natural
for any employee to respond that the status of the Union is not
important right now when compared to getting their jobs back.
In any event, such comments by employees were not negative
and were limited to the immediate concern of getting their jobs
back. While the statements of 2 employees were negative
about the Union, such statements did not represent the senti-
ment of the approximately 54 other employees that were con-
tacted. Indeed, since approximately 46 employees did not ex-
press any negative comments about the Union, and 6 to 8 em-
ployees’ expressions were limited to getting their jobs back,
such evidence does not support a “reasonable good-faith doubt”
that the Union no longer represents a majority of employees at
the Gardner facility.8 Scepter Ingot Castings, Inc., 331 NLRB
1509 (2000).
Likewise, I am not convinced that because less then 50 per-
cent of the employees were on dues checkoff, such evidence is
sufficient support for Respondent Samuel Bent to raise a “rea-
sonable good faith doubt.” First, it is axiomatic that the Union
is the exclusive representative of all employees in the unit re-
gardless of whether they are on dues checkoff. Second, Re-
spondent Samuel Bent did not independently investigate nor

8 The Supreme Court stated in Fall River Dyeing Corp. v. NLRB,
482 U.S. 27 (1987):
If the employees find themselves in a new enterprise that sub-
stantially resembles the old, but without their chosen bargaining
representative, they may well feel that their choice of a union is
subject to the vagaries of an enterprise’s transformation. This
feeling is not conducive to industrial peace. In addition, after be-
ing hired by a new company following a layoff from the old, em-
ployees initially will be concerned primarily with maintaining
their new jobs.
did it submit any evidence regarding whether any of the em-
ployees pay union dues by check or cash without use of the
dues-checkoff provisions of the contract. Additionally, it did
not present any evidence that employees were not active in
discussing conditions of employment with union representa-
tives or did not attend union meetings even if they were not
dues paying members.
For all of the above reasons, I am not convinced that Re-
spondent Samuel Bent sufficiently established that the com-
ments made by employees about the Union supported their
conclusion that the Union no longer represented the employees
in the unit.
Additional support for the proposition that Respondent Sam-
uel Bent violated Section 8(a)(1) and (5) of the Act when it
refused to recognize and bargain with the Union can be found
in the Board’s decision in St. Elizabeth Manor, Inc., 329 NLRB
341 (1999). The Board held that once a successor’s obligation
to recognize an incumbent union has attached (where the suc-
cessor 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 decertification effort, an em-
ployer petition, or a rival petition.9
In the subject case, the Union demanded recognition and the
right to negotiate, both of which were rejected by Respondent
Samuel Bent.10
Under these circumstances, Respondent’s affirmative de-
fenses are rejected and it must recognize and negotiate with the
Union.
4. Unilateral changes
The General Counsel alleges in paragraph 11 of the com-
plaint in Case 1–CA–37851 that about January 19, Respondent
Bent failed to continue in effect all the terms and conditions of
the parties’ 1999–2000 contract by terminating the employee
health and dental plan, and eliminating paid timeoff benefits
and short-term disability benefits.
In its July 20 answer to the complaint, Respondent Bent ad-
mits that on or about January 19, as a result of a third party
administrator’s cancellation of its contract with Respondent
Bent to process medical claims coupled with Respondent
Bent’s financial condition, it was compelled to terminate its
employee welfare plans, including health and dental plans.
Respondent Bent argues that any failure to pay paid timeoff
was the result of intervention by agents of Wells Fargo, its
principal lender and the secured party through which Respon-
dent Samuel Bent acquired its assets on February 11.
9 In a successorship situation, the successor employer’s obligation to
recognize the union attaches after the occurrence of two events: (1) a
demand for recognition or bargaining by the union; and (2) the em-
ployment by the successor employer of a “substantial and representa-
tive complement” of employees, a majority of whom were employed by
the predecessor. 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 chal-
lenge to the union’s majority status begins, whether or not the employer
has actually extended recognition to the union as of that time.
10 I also note that the Respondent refused to recognize the Union at a
time prior to its learning from Miarecki that certain employees no
longer cared about or needed the Union.
S. BENT & BROS. 799
By letter dated January 19, the Union strongly protested the
cancellation of the welfare, health, and dental plans and ac-
cused Respondent Bent of breaching the parties’ collective-
bargaining agreement (GC Exh. 9). On January 20, Respon-
dent posted a notice to all employees that as a result of the
Company’s financial condition it was canceling the Medical
Dental and Vision Plan, the Group Term Life Insurance, the
Group Term Accidental Death & Dismemberment Insurance
Plan, the Long Term Disability Plan and the section 125 Plan
(GC Exh. 10). By letter dated January 24, Respondent Bent
responded to the Union and explained that the above actions
were taken only after the Company was informed by Health
Plans, Inc., the administrator of the Company’s health and den-
tal plan, that it intended to cease processing claims or confirm
benefits as a result of a dispute over the Company’s funding
obligations.
There is no dispute that the cancellation of the above-noted
plans was done unilaterally without advance notice to the Un-
ion and without permitting the Union to negotiate over the con-
duct. Under these circumstances, any defense that Health
Plans, Inc., or Wells Fargo caused the cancellation is rejected.
In agreement with the General Counsel, Respondent Bent vio-
lated Section 8(a)(1) and (5) of the Act when it terminated all
of the employees’ plans set forth in General Counsel’s Exhibit
10. Specialty Envelope Co., 321 NLRB 828 (1996).
5. The Golden State successor issue
The General Counsel alleges in paragraph 4(b) of the com-
plaint in Case 1–CA–37851, that Respondent Samuel Bent
before purchasing the assets of Respondent Bent was put on
notice of Respondent Bent’s potential liability by engaging in a
“Due Diligence” search of Respondent Bent’s operation. As
part of the remedy, the General Counsel seeks an order consis-
tent with the decision in Golden State Bottling v. NLRB, 414
U.S. 168 (1973), that Respondent Samuel Bent be jointly and
severally liable with Respondent Bent for the unfair labor prac-
tices of Respondent Bent.
Liability under Golden State normally attaches only if the
successor acquires the predecessor’s business with the knowl-
edge that the predecessor has committed unfair labor practices.
If a successor employer acquires and continues a business with
knowledge that the predecessor employer committed unfair
labor practices then it may be held jointly and severally liable,
with the predecessor, to remedy the unlawful conduct.
Although the General Counsel and the Charging Party
sought to extract admissions against interest from Respondent
Samuel Bent and Respondent Bent witnesses concerning
knowledge of the pending unfair labor practices, I find that
these efforts proved unsuccessful for the following reasons.
First, the original charge in Case 1–CA–37851 was filed on
January 28 and served on Respondent Bent on January 31 (GC
Exh. 1(g)). It must be presumed that Respondent Bent received
the unfair labor practice charge sometime in early February
2000. An examination of the charge shows that while Respon-
dent Bent, Wells Fargo Business Credit, Inc. and Sherman
Lavallee & Associates are named, Respondent Samuel Bent is
not found in the caption or narrative portion of the charge.
Alcock testified that on January 19, he apprised Hamburg that
Respondent Bent terminated its medical and dental plan but
acknowledged that he had no discussions with Hamburg prior
to February 11, that such conduct was alleged by the Union to
be an unfair labor practice.11 Second, although Wells Fargo
was named in the January 28 unfair labor practice charge, the
General Counsel did not present any evidence that representa-
tives of the Bank apprised Hamburg that unfair labor practice
charges concerning the termination of employees’ medical
plans were pending against Respondent Bent. Indeed, Ham-
burg credibly testified that no representative of the Banks in-
formed him at any time prior to February 11, that Respondent
Bent’s health plans had been terminated nor that unfair labor
practices were filed by the Union concerning the termination of
the health insurance plan. Third, both Miarecki and Beestrum
credibly testified that they had no discussions with Alcock or
Bank officials prior to February 11, about unfair labor practices
that had been filed against Respondent Bent. Indeed, Miarecki
admitted that she was unfamiliar with unfair labor practices
filed with the Board and did not see the January 28 charge at
any time prior to the subject hearing. While Beestrum in-
spected the Gardner facility on February 2, and became aware
on February 10, that Respondent Bent did not have a health
insurance plan for employees, he credibly testified that it was
not until February 15, when he received a letter from the Union
that he first learned about the January 28, unfair labor practice
charge (CP Exh. 1). I also note that during the initial negotia-
tions between Alcock and Hamburg to sell the business, Ham-
burg included in the Letter of Intent that no benefit plans or
liabilities would be assumed (GC Exh. 13). Likewise, in the
bill of sale negotiated with Wells Fargo and First International
it was provided that no liabilities would be acquired when pur-
chasing the assets of Respondent Bent (Samuel Bent/R. Exhs.
5 and 6).
In sum, when Respondent Samuel Bent purchased the assets
from Wells Fargo and First International, it did not know in
advance about the unfair labor practices that had been filed by
the Union against Respondent Bent. Accordingly, I find that
Respondent Samuel Bent is not a Golden State successor to
Respondent Bent and therefore, it is not jointly and severally
liable with Respondent Bent for the latter’s 8(a)(1) and (5)
violations. Navajo Freight Lines, Inc., 254 NLRB 1272, 1281
(1981).
CONCLUSIONS OF LAW
1. Respondent Bent and Respondent Samuel Bent have en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees’ constitutes a unit appropriate
for collective bargaining within the meaning of Section 9(b) of
the Act.

11 Alcock further admitted that he did not know what a unfair labor
practice was and could not discern the difference between a grievance
filed by the Union or a unfair labor practice charge filed with the
Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
All production and maintenance employees employed by Re-
spondent Samuel Bent at the Gardner, Massachusetts facility,
excluding all other employees, office and clerical employees,
firemen and employees of the research and development de-
partment, executives, guards and supervisors as defined in the
Act.

4. Respondent Bent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act by terminat-
ing the medical, dental, and vision plan, group term life insur-
ance, group term accidental death & dismemberment insurance,
short and long term disability, paid time off benefits, and the
section 125 Plan.
5. Respondent Samuel Bent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act by
unilaterally implementing a health insurance plan and modify-
ing vacation policies.
6. Respondent Samuel Bent is a “perfectly clear” successor
to Respondent Bent with respect to the obligations to bargain
with the Union representing employees in the above unit.
7. By refusing, on and after February 11, 2000, to recognize
and bargain with International Union of Electronic, Electrical,
Salaried, Machine, and Furniture Workers, Local 154, AFL–
CIO as the exclusive collective-bargaining representative for
employees in the above unit, Respondent Samuel Bent violated
Section 8(a)(1) and (5) of the Act.
8. Respondent Samuel Bent is not jointly and severally liable
for the unfair labor practices committed by Respondent Bent.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Specifically, I shall order Respondent Samuel Bent, on re-
quest of the Union, to rescind the changes in employment terms
made on or about March 1 and May 9, 2000. As to those em-
ployment terms (health insurance and vacation policies) for
which rescission is requested, Respondent Samuel Bent shall be
ordered to make whole all unit employees for any loss of wages
and other benefits suffered, as calculated in accordance with
Ogle Protection Service, 183 NLRB 682, 683, (1970), with
interest computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]