Textron, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1124 (N.L.R.B. 1990)

1124
300 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to certain credibility findings made by the
judge. It is the Board’s established policy not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance 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.
We agree with the judge that under the particular terms of the settlement
agreement the Union was entitled to a reasonable period of time following the
expiration of the 18-month moratorium in which to bargain. Further, even if
under the terms of that agreement the Respondent could raise a good-faith
doubt of the Union’s majority status after the 18-month moratorium, we find,
for the reasons set forth by the judge, that the Respondent failed to establish
that it had a good-faith doubt when it withdrew recognition from and refused
to bargain with the Union. We thus find it unnecessary to pass on his use of
the term ‘‘irrebuttable presumption.’’
The judge incorrectly stated that the 10 employees who had conversations
with the Respondent about the Union constituted ‘‘less than one half of one
percent of the hourly employees.’’ Because the Respondent had over 200 hour-
ly employees, those 10 employees represent about 5 percent of the hourly em-
ployees. This error, however, in no way affects our finding that the Respond-
ent failed to establish that it had a good-faith doubt of the Union’s majority
status.
Member Oviatt fully agrees with the judge that the Respondent and the
Union entered into a binding settlement agreement that required the Respond-
ent to bargain with the Union, on request, after the expiration of 18 months
from the date that the Respondent received clear title to the facility in issue
here. When it came time to bargain, however, the Respondent refused. Settle-
ments play a significant and important role in labor relations, and the Board’s
policy of encouraging settlements is clear and established. See Independent
Stave Co., 287 NLRB 740 (1987). When, as here, a party reneges on its settle-
ment agreement, the substantial policy favoring settlements is undermined. In
Member Oviatt’s view, this Respondent’s action, in failing to honor a settle-
ment agreement freely made, has resulted in a waste of the Board’s limited
resources and has done a serious disservice to the national labor policy.
Randall Division of Textron, Inc. and International
Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America,
UAW. Case 25–CA–19864
December 31, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On May 2, 1990, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed answer-
ing 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 and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Randall Division of Tex-
tron, Inc., Indianapolis, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Mark Dabertin and Rick Lineback, Esqs., for the General
Counsel.
Hudnall A. Pfeiffer and Todd Nierman, Esqs., of Indianap-
olis, Indiana, for the Respondent.
Janice Kreuscher and Barry A. Macy, Esqs., of Indianapolis,
Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on a charge filed April 3, 1989, by International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW (Union), the Regional Director
for Region 25 issued a complaint and notice of hearing dated
May 25, 1989, alleging that Randall Division of Textron,
Inc. (Randall or Respondent) by withdrawing recognition
from and refusing to bargain with the Union has violated
Section 8(a)(1) and (5) of the National Labor Relations Act
(Act).
A hearing was held in this matter on November 14 and
15, 1989, in Indianapolis, Indiana. Briefs were received from
the parties on or about March 16, 1990. Based on the entire
record, including my observation of the demeanor of the wit-
nesses, and after consideration of the briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent Randall Division of Textron, Inc. is a corpora-
tion with an office and place of business, as pertinent, in
Morristown, Indiana, where it engages in the manufacture of
plastic parts used, inter alia, in the automotive industry. Re-
spondent has admitted the jurisdictional allegations of the
complaint and I find that it is now and has been at all times
material to this proceeding, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted by Respondent and I find that International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, is a labor organization
within the meaning of Section 2(5) of the Act.
1125TEXTRON, INC.
1 The involved unit is described as follows:
All production, laboratory and maintenance employees employed at the
Morristown, Indiana facility, but excluding employees who regularly work
less than forty (40) hours per month, management trainees, assistant fore-
men, expediters, layout men, time study men, estimators, draftsmen, ad-
ministrative personnel, office clericals, professional employees and all
guards and supervisors as defined in the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Complaint Allegations
The complaint alleges that since 1978, the Union has been
the exclusive bargaining representative of a unit1 of employ-
ees at the involved Morristown, Indiana facility. In 1986, Re-
spondent took over the facility from American Carco, Inc.,
and with the approval of an administrative law judge of the
Board in July 1987, entered into a private non-Board settle-
ment agreement in Case 25–CA–18504, in which, inter alia,
the Respondent agreed to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
the employees in the involved unit. The settlement agreement
also called for an 18-month moratorium on bargaining be-
tween Respondent and the Union. In March 1989, after re-
ceiving a request for bargaining from the Union, the Re-
spondent refused to bargain and withdrew recognition from
the Union stating that it had a good-faith belief that the
Union did not have majority status. The complaint further al-
leges that Respondent’s conduct violated Section 8(a)(1) and
(5) of the Act.
B. The Facts Giving Rise to the Dispute
1. Events leading to the July 13, 1987 settlement
agreement
Respondent operates eight manufacturing facilities and rec-
ognizes unions, including the involved Union, at all of these
facilities except at Morristown. The Morristown, Indiana
plant of Respondent produces molded plastic parts for auto-
motive and nonautomotive customers. The Respondent took
over the operation of this plant from American Carco of In-
diana, Inc. (ACI) after that company declared bankruptcy and
ceased operations in December 1986. The takeover was pur-
suant to a lease-purchase agreement with the bankruptcy
court which was terminable at will on 60 days’ notice and
which expired on December 31, 1987. Under this agreement,
custody of the plant passed to the Respondent on December
19, 1986, and the plant resumed operations on January 5,
1987.
The Union and ACI were parties to a collective-bargaining
agreement, which was to have remained in effect until No-
vember 15, 1987. Since 1978, ACI had recognized the Union
as the collective-bargaining representative of the above-de-
scribed unit of its employees. Because of its representational
status, representatives of the Respondent and the Union met
in early December 1986. At this meeting Respondent in-
formed the Union of its plans to consolidate the operations
of its South Haven, Michigan and Cambridge, Ohio plants
into the Morristown plant. It was understood by both parties
that with this new work, the work force would eventually ex-
pand to approximately 500 employees and the product mix
of the Morristown plant would change. Additionally, the new
products would be molded from different types of plastic res-
ins and in different colors than the products that ACI had
produced.
The Union requested recognition from the Respondent at
this meeting, but the Respondent denied that it was a suc-
cessor to ACI and declined the Union’s request. Respond-
ent’s witness claimed that at this meeting and at subsequent
meetings, the Union’s representatives wanted immediate rec-
ognition as the exclusive bargaining representative for Re-
spondent’s Morristown employees to keep other unions from
being able to organize the plant. The Union’s witnesses de-
nied making such a statement. I credit their denial. The
Union was legitimately claiming that Respondent was a suc-
cessor to ACI and was already the designated representative
of the involved employees.
Representatives of the two parties met for a second time
in February 1987, after the Respondent had begun operations
at the plant. The Union again requested recognition and the
Respondent again declined to extend it. The Union based its
demand for recognition on Respondent’s having acquired the
assets of ACI, including the real estate, improvements to the
real estate, machinery and equipment, and Respondent’s en-
gaging in the same business operation, at the same location,
with the same supervisors, selling the same products to sub-
stantially the same customers, and having as a majority of
its employees, individuals who were previously employed by
ACI and who were members of the bargaining unit rep-
resented by the Union. During the first several months Re-
spondent operated the facility, the work was the same as had
been done by the plant’s previous owner. The product was
primarily small molded plastic products that were plated,
painted, and sometimes molded on the premises and were
used in the automotive and appliance industries. The Union
responded to this refusal by filing a charge with the Board
on February 17, 1987. Following an investigation, the Re-
gional Director issued a complaint in Case 25–CA–18504,
which, inter alia, alleged that Respondent was a successor
employer to ACI. The Regional Director additionally filed
suit in Federal district court seeking 10(j) injunctive relief.
On July 13, 1987, a hearing was held in this case. At that
time, the Morristown facility had approximately 100 hourly
employees working primarily in molding, painting, tool and
die, maintenance, and plating departments. The hourly em-
ployees had a common orientation procedure, work rules,
worked in a single building, shared restrooms, a lunchroom
breakroom, and parking lot, and were subject to the same
rules and procedures of shift preference, leaves of absence,
overtime, and complaints. In July 1987, the Morristown facil-
ity was producing the same small plastic products with the
same equipment it had used since December. Shortly after
the hearing was convened, the Respondent and the Union
agreed to conduct off-the-record settlement negotiations. The
negotiations resulted in the execution of a document entitled,
‘‘Memorandum of Agreement.’’ This document reads as fol-
lows:
1. The Union will withdraw its pending 8(a)(5)
charge, with prejudice.
2. The Union recognizes that, based on its with-
drawal of the charge, the Board will dismiss the Section
10(j) petition currently pending before the United States
District Court for the Southern District of Indiana, Indi-
anapolis Division.
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Webster’s Seventh New Collegiate Dictionary defines the word morato-
rium as follows: 1. a: a legally authorized period of delay in the performance
of a legal obligation or the payment of a debt; b: a waiting period set by an
authority; 2: a suspension of activity.
3. The Union will withdraw its pending 8(a)(3)
charge with prejudice.
4. Randall will grant recognition to the International
Union, UAW, and its Local 2052 as the exclusive col-
lective bargaining representative for an appropriate pro-
duction and maintenance unit at Randall’s Morristown,
Indiana, plant, effective upon the approval of the with-
drawal of the above-described charges.
5. The Union agrees that there will be a total mora-
torium on any obligation by Randall to bargain over
wages, hours and other terms and conditions of employ-
ment for a period of eighteen (18) months from the date
Randall receives clear title to the Morristown plant real
estate and improvements as evidenced by its receipt of
valid deeds, with the exception identified in paragraph
6.
6. Six months after Randall receives clear title as de-
scribed in paragraph 5, the Union may file a grievance
for a non-probationary employee within the appropriate
production and maintenance unit who has been dis-
charged from employment with Randall, alleging that
the discharge was for other than just cause. Such griev-
ance must be filed within five (5) days of the date of
discharge. Such grievance will be subject to a one-step
grievance procedure in which the Company’s Vice-
President for Personnel and the Union’s International
Representative, or their designated representatives, shall
meet to discuss the grievance. If, following such discus-
sion, the Union determines to take the discharge griev-
ance to arbitration, it shall so notify the Company with-
in ten (10) days from the grievance meeting, and the
parties thereafter shall select a mutually agreeable arbi-
trator independently or from a panel submitted by the
Federal Mediation & Conciliation Service. The losing
party shall pay the cost of the arbitrator. Any dispute
about the employee’s status as a non-probationary em-
ployee within the appropriate production and mainte-
nance unit shall be resolved by the arbitrator for the
purpose of application of this grievance procedure only.
The arbitrator’s decision will be final and binding on
the Company, Union and employee and the Union
agrees that it will not initiate or sanction any strike or
other concerted activity regarding the discharge.
To the extent that any testimony given by the witnesses
at the instant hearing conflicts with the clear terms of the
above agreement, I wholly discredit such testimony. Further,
to the extent that the testimony of Respondent’s witnesses
conflicts with that of the Union’s witnesses with regard to
the agreement, I credit the testimony of the Union’s wit-
nesses and discredit the opposing testimony of the Respond-
ent’s witnesses. Specifically, I credit the testimony of witness
Richard Swanson over that of Robert Hicks and David Shane
to the extent of any conflict between them. I based this de-
termination of my observation of the testimony and the rela-
tionship between that testimony and other evidence of record.
The 18-month ‘‘moratorium’’ on bargaining resulted from
a compromise between the Union’s desire to have immediate
bargaining and the Respondent’s desire to have a period of
time in which to do business without being challenged on a
grievance or dealing with the Union subsequent to recogni-
tion. The term ‘‘moratorium’’ was carefully selected by the
parties.2 It was the Union’s understanding, based upon the
statements of the Respondent’s representatives, that the par-
ties would enter into collective-bargaining negotiations fol-
lowing the 18-month moratorium. There was no mention by
any party that the Union would have to establish majority
status before bargaining would commence. It is also impor-
tant to note that at the time of the execution of the agreement
that both parties recognized that the involved plant’s oper-
ation would expand to a considerable degree and that its
product mix would likewise expand. I do not credit the testi-
mony of Respondent’s witnesses that their understanding of
the agreement was that if the Union did not have majority
status after 18 months, there was no obligation to bargain;
and to the contrary, credit the testimony of witness Swanson
that Respondent’s representatives stated that Respondent
would bargain after 18 months.
I find that the clear import of the language of the agree-
ment, including the accepted definition of the word morato-
rium, leads only to the conclusion that Respondent extended
unqualified recognition to the Union as the exclusive rep-
resentative for collective bargaining for an appropriate unit
of Respondent’s employees, and that bargaining over the
terms of a collective-bargaining agreement would begin,
upon request, after the passage of 18 months. The very terms
of the agreement also make it obvious that withdrawal of
charges by the Union was the quid pro quo for Respondent’s
immediate full recognition. Such recognition also carries with
it the legal obligation to bargain. That the parties recognized
this obligation is also obvious, as they felt it necessary to
agree to a moratorium on bargaining in order to delay the
start of negotiations. The agreement’s unit description of ‘‘an
appropriate production and maintenance unit’’ was the result
of a compromise between the Respondent and the Union re-
garding some laboratory workers. The Union had proposed
that the unit in the agreement should be identical to the unit
set forth in the collective-bargaining agreement with ACI.
The Respondent rejected this proposal because it included
the laboratory workers, who are salaried employees. The par-
ties agreed to use the word ‘‘appropriate’’ to settle this argu-
ment. The parties believed that disputes over the contours of
the unit could be resolved either in negotiations or arbitra-
tion.
The grievance procedure in the agreement was also a com-
promise of position. Originally the Union sought a multistep
grievance process where anything could be grieved, but the
Company would agree only to a one-step grievance process
for discharges of nonprobationary personnel providing that
the international representative, rather than an employee,
serve as the Union’s representative. Respondent’s goal was
to have as little interference in its day-to-day operations as
possible during the moratorium period. In exchange for the
grievance procedure, the Union agreed to a no-strike provi-
sion.
The ‘‘Memorandum of Agreement’’ was considered by all
parties at the hearing on Case 25–CA–18504 to be a settle-
ment agreement. The transcript of the proceeding held before
Administrative Law Judge Robert Leiner, in pertinent part,
reads as follows:
1127TEXTRON, INC.
JUDGE LEINER: . . . it is my understanding, General
Counsel, that the parties have been wise enough to
come to an understanding, which settles this and other
litigation, is that correct?
GENERAL COUNSEL: That’s correct.
JUDGE LEINER: Mr. Swanson (Union Counsel), do
you agree to come to a settlement satisfying to the
Union?
MR. SWANSON: Yes.
JUDGE LEINER: And you agree, too, Mr. Shane (Re-
spondent’s Counsel)?
MR. SHANE: Yes.
JUDGE LEINER: . . . and in an off the record discus-
sion, since this is a non-board disposition of the case,
neither the Union, or the Respondent-Employer desires
the settlement to be made part of the record, is that cor-
rect, Mr. Swanson?
MR. SWANSON: Yes, that is correct.
JUDGE LEINER: The parties, as I understand it, are
not desirous of having the settlement on the record, is
that right?
MR. SWANSON: Yes.
MR. SHANE: Yes.
JUDGE LEINER: All right. I won’t mention any of the
terms, although I have reason to believe I know some
of the terms, but it’s satisfactory to the Union, is that
right?
MR. SWANSON: Yes.
JUDGE LEINER: And to the Company?
MR. SHANE: Yes, sir.
JUDGE LEINER: All right. Now we go to the General
Counsel. General Counsel, are you familiar with the
terms and conditions of the settlement?
GENERAL COUNSEL: Yes, sir.
JUDGE LEINER: As far as the General Counsel rep-
resenting the region goes, is it your position that you
will not oppose the settlement?
GENERAL COUNSEL: Yes, General Counsel does not
oppose the settlement.
MR. SWANSON: The Union moves to withdraw its
pending 8(a) [sic] and Section 8(a)(3) charges.
JUDGE LEINER: All right. There is not 8(a)(3) charge
before me, counselor. That’s another matter. But it is
part of the settlement, then for purposes of this record
to withdraw all the charges?
MR. SWANSON: Yes.
JUDGE LEINER: Fine. I can, of course, act only on the
charge in 25–CA–18504, but you may technically have
to deal with that other charge before Mr. Little, the Re-
gional Director, but it is your intent, nevertheless, to
withdraw all the charges?
MR. SWANSON: Yes.
JUDGE LEINER: Is there any opposition?
MR. SHANE: No.
JUDGE LEINER: Hearing none, your motion to that
extent is granted.
JUDGE LEINER: General Counsel?
GENERAL COUNSEL: General Counsel moves to dis-
miss or withdraw the complaint in 18504.
JUDGE LEINER: The motion is granted. ‘‘There being
nothing further to come before me, . . . I’m going to
close this hearing absolutely, because as I understand it,
. . . the parties are satisfied with the status of their
agreement, establishing . . . a recognized relationship.’’
In turn, the Regional Director approved the withdrawal of
charges and additionally withdrew the Board’s petition for
injunctive relief before the Federal district court. Clearly, the
‘‘Memorandum of Agreement’’ was a settlement agreement
of the involved charges. The Board’s involvement in the set-
tlement was substantial as Judge Leiner, with knowledge of
at least the most important feature of the settlement, ap-
proved the withdrawal of charges and thus approved of the
settlement. His approval was also with the blessing of the
General Counsel who knew all the terms of the settlement.
The Regional Director, who is presumed to have known the
terms of the agreement, based upon the General Counsel’s
knowledge, also approved the settlement by approving with-
drawal of charges and dismissal of the attendant law suit.
2. Events leading to the respondent’s withdrawal of
recognition and refusal to bargain
In August 1987, the plant was still producing small mold-
ed plastic parts which were often plated on the premises.
Products included automotive wheel covers, appliance bases,
and trim for auto headlights. The basic process for most of
the parts was the same. Plastic was injected in molds and the
molded part was then trimmed and packed. The packed parts
were inspected and, if approved, were sent to be pointed,
plated, or shipped. Despite any expansion that occurred over
the 2 years, the basic process would remain the same as
would the basic job functions of the tool and die makers,
molders, painters, platers, etc., who produced the parts. In
March 1989, the Respondent was using some different resins
in its molding process, it had improved quality controls, had
created a new classification of employee to do ‘‘fixturing,’’
had modernized its paint department, and had more than dou-
bled the work force. It contends that many of the jobs per-
formed in March 1989, though essentially the same classi-
fication of job performed in 1987, required a higher degree
of training or skill. I have difficulty accepting this evidence
at face value in light of the fact that the company was con-
stantly securing new workers from a personnel referral com-
pany and was experiencing a high turnover of employees.
The turnover indicates to me that the jobs involved were fair-
ly simple to learn and the referred employees were not
shown to possess any special skills or training. The most sig-
nificant change in the Respondent’s operation from 1987 to
1989 was its growth, not what it produced or how it pro-
duced its products.
The Union’s first written contact with the employees of
the Respondent subsequent to the execution of the settlement
agreement was a letter dated September 8, 1987. In this let-
ter, the Union advised the employees, inter alia:
As part of the settlement (see enclosed Memorandum
of Agreement), the Randall Company agreed to recog-
nize the Union immediately upon the Union’s with-
drawal of all out-standing charges and litigation before
the National Labor Relations Board. The Union in re-
turn agreed to delay contract negotiations until eighteen
(18) months after Randall Division of Textron, Incor-
porated obtains clear title to the property and buildings.
. . . .
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Randall Company Division of Textron, Incor-
porated granted recognition to the Union it was the
equivalent of winning an organizing election before the
National Labor Relations Board. I realize that some em-
ployees were worried about speaking to me and about
joining the Union. As a recognized Union you will
need to sign membership cards, if you wish to join for
the upcoming Local Union elections. There will be no
dues deducted for membership in the UAW until we
have a signed contract with Randall, approximately
eighteen (18) months from today.
I am enclosing a Union membership card for each of
you to fill out and return to my office. Again, remem-
ber that this card is not needed to gain recognition, but
only to verify union membership for the upcoming
Union election.
Because the terms of the agreement did not permit bar-
gaining until the expiration of the 18-month moratorium and
because it did not contemplate a role for local officers in the
grievance process, no local union elections were scheduled
during 1987 or 1988. However, the Union International rep-
resentative assigned to the facility testified that he kept in
touch with bargaining unit personnel and would have inves-
tigated and possibly filed grievances pursuant to the agree-
ment had affected employees sought his assistance. No one
did.
On September 19, 1988, the Union wrote to Robert Hicks,
a vice president of Respondent, requesting information in
preparation for collective-bargaining negotiations, which the
Union believed ‘‘should commence on or about March 1,
1989.’’ The letter also requested permission to post written
notices in the plant, ‘‘[i]n order to insure each employee is
informed of upcoming important meetings . . .’’ Hicks re-
sponded to this letter by a letter of his own, dated December
14, 1988, to which he attached information that the Union
had requested. Additionally, in lieu of permitting the Union
to post notices, Hicks furnished the names of the employees
and their addresses. The Union in turn wrote back to Hicks
on December 19, 1988, acknowledging that it had received
all of the information that it required for bargaining.
On January 5, 1989, the Union wrote to the employees ad-
vising them of meetings to be held regarding the status of
contract negotiations with the Respondent. These meetings
were held during the morning and afternoon of January 11,
1989. At these meetings, Union Representative Max Jeffrey
explained to bargaining unit members that the Union had
been recognized almost 2 years before and that bargaining
was scheduled to begin soon, necessitating an election of a
bargaining committee. Accordingly, Union adherents agreed
to start soliciting membership cards to demonstrate support
during the upcoming negotiations and to verify membership
for internal elections. No effort was made to use cards to or-
ganize the plant and, in fact, the yellow membership cards
being distributed were not the green cards used in UAW or-
ganizing drives.
The Union’s next communication to the Respondent’s em-
ployees was a letter dated February 21, 1989. This letter an-
nounced that ‘‘Bargaining Representative[s]’’ would be elect-
ed at a meeting to be held on March 1, 1989. At this meet-
ing, four employees were elected to bargaining representative
positions. They later were identified to the Respondent in a
letter sent by the Union to Hicks, dated March 10, 1989, in
which the Union also advised Hicks that it would be in touch
with him to arrange dates for negotiations.
The bargaining representatives first meeting for formu-
lating negotiating strategies was scheduled for Saturday,
March 11, 1989. One of the newly elected representatives,
Harold Davis, was scheduled to work on that day. Davis was
concerned about the possibility that he would be charged
with an unexcused absence if he chose to attend the meeting.
Thus, Davis went to the Morristown plant’s personnel man-
ager, Harry Parker, on Friday morning, March 10, 1989.
Davis asked Parker if his absence on Saturday would be ex-
cused or unexcused. Parker responded by telling Davis that
he was unaware of anything to do with the Union and would
have to ask Hicks. On cross-examination, Parker admitted
that the plant manager, Tom Collins, had told him back in
January 1989, that the Union believed that it had gained rec-
ognition without an election through the memorandum of
agreement. In this conversation, Davis stated that he believed
that a majority of the employees had signed union cards.
Parker testified that this statement was in the context of the
Union having enough cards to organize the plant. As will be
discussed later in this decision, I do not find it significant
whether Davis used or did not use the word ‘‘organize’’ in
this conversation. Based on Parker’s earlier conversation with
Plant Manager Collins, he knew the Union believed it was
already recognized.
Parker discussed this conversation with Hicks who defi-
nitely knew the Union had been previously recognized and
who personally had acknowledged the status of the Union
by, inter alia, responding completely to the Union’s Sep-
tember 1988 information request. Both Hicks and Parker tes-
tified about conversations they had with hourly employees in
the period January–March 1989, which they believed indi-
cated employee dissatisfaction with the Union. Hicks testified
that on an unspecified date at an unspecified time, employee
Barbara Theobold made a statement to him and Parker to the
effect that she had been unhappy with UAW representation
at a previous employer’s facility and did not want to be rep-
resented by the UAW.
Between January and March 1989, during the membership
solicitations, 10 hourly employees of Respondent spoke with
Parker about the union solicitation. At this time, the Com-
pany had over 200 hourly employees. Parker testified that in
general, these employees approached him because they were
concerned about their job security if they signed a union
card. They were concerned whether they would still have a
position with the Company if they did so sign. Specifically,
Parker testified that on an unspecified date in January 1989,
in addition to Theobold’s conversation, employee Sena Bran-
denburg told him that she had been a UAW member at a an-
other employers facility and was dissatisfied with UAW rep-
resentation at that facility. She further stated that she would
not join or be represented by that union at Morristown. She
would quit first. With regard to this conversation, it was
shown that the UAW does not represent the facility she men-
tioned.
Parker further testified that on an unspecified date in Janu-
ary, he had a conversation with employee John Collins. Al-
though Parker could not recall the words used in the con-
versation, the import of it was that Collins did not want to
join the Union and wanted to know if he could keep his job
1129TEXTRON, INC.
3 Hicks testified that Jeffrey initially agreed to a card count. Jeffrey testified
that he never agreed to the count, but told Hicks that he would have to look
at the memorandum of agreement which was at his office. I credit the testi-
mony of Jeffrey in this regard as his position is consistent with all of his other
actions and because Hicks was a less than credible witness.
4 In November 1988, Respondent began using Manpower and Personnel
Management as referral sources for employees. Initially the arrangement was
that 90 days after the referral the employee was placed on Respondent’s pay-
roll. In December 1988, Respondent and Manpower negotiated a shorter refer-
ral period of 6 to 8 weeks. Under the agreement after 6 to 8 weeks, a referred
employee was converted to the Respondent’s payroll. Pursuant to the agree-
ment, Respondent used Manpower as its exclusive source for referrals. In Jan-
uary 1989, Respondent and Manpower shortened the period to 3 to 5 weeks.
Typically, a referred employee would be evaluated in his third week and con-
verted to Respondent’s payroll in his fourth week of employment. The purpose
of shortening the referral period was to reduce turnover. Generally, the evi-
dence reflects that Respondent treated Manpower referred employees much
like it would its own probationary employees during the referral period. Sev-
eral hundred employees had been referred under this process, though not many
stayed evidently, as the Respondent only employed about 250 employees as
of March 1989.
if he did not join. Parker testified that employee Diane
Tressler asked him whether or not she had to sign a union
card to maintain employment with the Company. Tressler
was a lead person with Respondent at the time. Employee
Les Becraft told Parker that the Union had asked him to run
for union office and he did not want to run. He did not want
the Union to represent him and wanted to make sure he had
a job if he did not sign a union card. Parker testified that
around March, employees Christy Owens and Ruth Self
came to his office and after asking some general questions
about unions, asked if they would be able to keep their jobs
if they did not sign a union card. In the last week of March,
employee Cindy Callahan came to his office and said that a
fellow employee had told her that if she did not sign a union
card, she would not be able to keep her job. Parker in later
testimony remembered that in January or February, two other
employees, Rebecca Karnes and Jim Phillip had expressed
concern over job security if they did not sign union cards.
At the hearing, Parker could not remember exactly what each
of the 10 had said, but remembered that the message they
had given him was that they did not want to be represented
by the Union.
This evidence of employee conversations was offered by
Respondent to demonstrate what formed the basis for what
it claims is a good-faith doubt about the Union’s majority
status, which doubt arose for the first time after the March
10 letter requesting bargaining. As a factual matter, much
less a legal one, I cannot find that the conversations with
employees set out above could rationally give rise to a good-
faith doubt of the Union’s majority status. First the conversa-
tions took place over a 3-month period and in the best light
for Respondent, can only be considered to be isolated expres-
sions of dissatisfaction. Additionally, these expressions came
from less than one half of one percent of the hourly employ-
ees. I also believe that the conversations truly were expres-
sions of employee concerns over whether joining the Union
was mandatory rather than expressions of concern over rep-
resentation by the Union. In any event, I do not believe these
10 conversations could lead to a good-faith doubt that the
majority of the Respondent’s hourly employees did not want
to be represented by the Union.
At some point between March 10 and 20, 1989, Hicks dis-
cussed the Union’s March 10 request to bargain with the Re-
spondent’s legal counsel. Based on these discussions, an idea
of having the Union prove its majority support to a third
party emerged. Hicks testified that this request for a card
check was prompted by the Parker–Davis conversation and
by the conversations with the other employees noted above.
I do not believe this testimony is credible. I have already
found that the 10 employee conversations noted above could
not rationally form the basis for a good-faith doubt. Even
giving full credit to Parker’s version of the conversation,
Davis only said that the Union had sufficient cards to orga-
nize the plant. He did not specify in any manner how many
cards the Union possessed. I find it patently unbelievable that
an off-the-cuff remark from an hourly employee that the
Union had signed cards from a majority of Respondent’s em-
ployees could lead Hicks to the conclusion that the Union
did not have majority support. On the other hand, I find it
very easy to believe that in trying to find a way out of its
bargaining obligation, Hicks and his counsel would seize on
a card count to try to force the Union to prove its majority
status.
Thus, on March 20, 1989, Hicks called Union Representa-
tive Jeffrey, who was at home in the shower. Hicks began
the conversation by telling Jeffrey that he had received a let-
ter from Jeffrey requesting bargaining and that he was calling
in response to this request. Hicks then informed Jeffrey that
the Respondent would only bargain with the Union if the
Union agreed to have a third party count union cards to de-
termine whether or not the Union had majority support. Jef-
frey responded to this by telling Hicks that he believed that
the Union already had recognition through the memorandum
of agreement. Jeffrey further stated that he wanted to have
the Union’s lawyers review the agreement and that in the in-
terim, he would like Hicks to provide him with the number
of people who Hicks felt were in the unit.3 Hicks telephoned
Jeffrey with the number of employees in the unit on March
22, 1989.
Jeffrey’s next contact with Hicks was by letter. On March
28, 1989, Jeffrey wrote to Hicks, rejecting the Respondent’s
proposed card count and advising Hicks that the Union did
not consider employees of Manpower, Inc.4 to be included
in the unit.
Hicks responded to Jeffrey’s March 28 letter, in a letter
dated March 31, 1989. In his letter, Hicks, on behalf of the
Respondent, stated that the Union’s refusal to submit to a
card count ‘‘suggests to us that the UAW does not have ma-
jority status.’’ Hicks additionally asserted that ‘‘the law does
not permit an employer to bargain with a union unless it has
majority status.’’ Hicks then discussed the Respondent’s ra-
tionale for including Manpower employees in the unit and
concluded the letter of position by stating that ‘‘we do not
believe that a dispute about the total numbers of employees
is reason to delay a card count.’’
Jeffrey reacted to Hicks’ March 31, 1989 letter by filing
a charge with the Board on April 3, 1989. The charge alleges
that the Respondent has violated Section 8(a)(5) of the Act
by refusing to abide by its commitment to bargain pursuant
to the memorandum of agreement. The charge additionally
requests 10(j) injunctive relief. Following an investigation of
the allegations set forth in the charge, the Regional Director
issued a complaint which alleges that the Respondent has
violated and continues to violate Section 8(a)(1) and (5) of
the Act by refusing to bargain with the Union.
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Did Respondent Violate the Act by Refusing
to Bargain
Settlement negotiations were initiated by Judge Leiner at
the hearing for Board Case 25–CA–18504, which included,
inter alia, a claim that the Respondent was a successor em-
ployer to ACI. The Union and the Respondent agreed to con-
duct off-the-record settlement negotiations, which resulted in
a settlement agreement titled, ‘‘Memorandum of Agree-
ment.’’ In pertinent part, the terms of the agreement granted
the Union immediate recognition, albeit, subject to a mutu-
ally agreed-on 18-month delay in bargaining over wages,
hours, and other terms and conditions of employment, which
was to run from the date on which the Respondent received
clear title to the Morristown plant.
As the quid pro quo for the grant of recognition, the
Union, with the judge’s knowledgeable approval and the
General Counsel’s knowledgeable approval, withdrew its
charges in Cases 25–CA–18504 and 25–CA–18713. In addi-
tion, the Regional Director approved the withdrawal of the
charges and additionally withdrew the Board’s petition for
injunctive relief.
On March 10, 1989, at roughly the time at which the
Union had calculated bargaining should commence, the
Union contacted the Respondent regarding setting up dates
for negotiations. In response to this request, the Respondent
attempted to impose preconditions to bargaining that appear
nowhere on the face of the settlement agreement. In par-
ticular, the Respondent demanded that the Union submit to
a card count to test its majority status.
When the Union refused to submit to the card check,
which it was not required to do by either the terms of the
settlement agreement or by Board law, the Respondent un-
equivocally communicated to the Union that it was refusing
to bargain.
The Respondent offered a number of defenses to the al-
leged violation of the Act, none of which has merit in my
opinion. Its primary defense is that the Union lacked major-
ity support among Respondent’s employees at the time the
bargaining request was made and that it would have been un-
lawful for it to bargain with a minority union. I will address
this defense in a later part of this decision because I believe
that under the circumstances of this case, the matter of ma-
jority support, vel non, is not determinative of the Respond-
ent’s duty to bargain with the Union. It is my belief and
finding that Respondent and the Union entered into a settle-
ment agreement which required the Respondent to bargain
with the Union, upon request, after the expiration of 18
months from the date Respondent received clear title to the
involved facility. I further find that the Union enjoyed an
irrebuttable presumption of majority status for a reasonable
period of time, which period of time did not start until the
18-month moratorium passed. Therefore, the Respondent had
not afforded the Union a reasonable period of time to rep-
resent its employees when it refused to bargain with the
Union in March 1989 and its refusal violated the Act, as al-
leged in the complaint. My reasons for these findings will be
discussed fully below.
1. The memorandum of agreement was a binding
settlement agreement imposing a duty to
bargain upon Respondent
The ‘‘Memorandum of Agreement’’ is a settlement agree-
ment, rather than a collective-bargaining contract as urged by
Respondent. The agreement, unlike a collective-bargaining
contract, does not contain specific provisions as to wage,
hours, and working conditions for a specified time. Rather,
the agreement contains concessions relating to the allegations
contained in the complaint, which cannot be logically sepa-
rated from the Union’s withdrawal of its charges. See Straus
Communications, 246 NLRB 846 (1979), affd. 625 F.2d 458
(1980). The uncontested facts and the terms expressed on the
face of the agreement clearly demonstrate that the Union
withdrew its charges in exchange for recognition and its at-
tendant obligation to bargain; albeit, following an 18-month
moratorium. Hence, the withdrawal of the charges was the
quid pro quo or consideration for the Respondent’s conces-
sions, which were as follows: a commitment to implement a
grievance procedure, recognition of the Union as the collec-
tive-bargaining representative of the production and mainte-
nance employees and a commitment to bargain 18 months
from the date on which it received clear title to the Morris-
town plant.
The addition of the abbreviated grievance procedure, arbi-
tration mechanism, and no-strike provision do not in my
mind convert the settlement agreement into a collective-bar-
gaining agreement. The items were made necessary because
of the agreed-on 18-month moratorium before bargaining
would begin. Having granted recognition to the Union, but
withholding bargaining over a collective-bargaining agree-
ment for 18 months, the Union’s role at the facility for the
18-month period must of necessity be defined. I find that the
establishment of the grievance procedure as well as the no-
strike provision does nothing more than to define the limited
role to be played by the Union until the moratorium passed,
and bargaining over its full role could begin.
2. The unit description contained in the agreement does
not relieve Respondent of duty to bargain
The fact that the parties were unable to reach agreement
as the precise scope of the unit does not preclude enforce-
ment of the memorandum of agreement as a settlement
agreement. The Board has approved of an ‘‘appropriate unit’’
language in the past. In Van Ben Industries, 285 NLRB 77
(1987), for example, the parties entered into a non-Board set-
tlement agreement whereby the company agreed to ‘‘recog-
nize the Union as the sole and exclusive bargaining agent for
its production employees in an appropriate unit’’ in ex-
change for the Union’s withdrawal of unfair labor practice
charges relating to the successor employer’s refusal to recog-
nize the union. After the company refused to abide by the
settlement agreement, the Board found that the company had
violated the Act by refusing to bargain with an ‘‘appropriate
bargaining unit’’ that was identical to the unit that had been
recognized by the successor employer’s predecessors.
Further, as the Board noted in Straus, 246 NLRB at 847:
1131TEXTRON, INC.
It is immaterial that the agreement may not have fully
resolved every allegation in the complaint, as Respond-
ent would have it do, because the agreement, taken as
a whole, clearly settled to the satisfaction of the Re-
spondent and the Union the outstanding complaint. The
agreement, therefore, is a typical settlement agreement
warranting application of the Poole Foundry test of de-
termining whether ‘‘a reasonable time has elapsed be-
tween the execution of the settlement agreement and the
refusal to bargain,’’ in which the parties may bargain
free from any question of the union’s majority status.
On brief, Respondent does defend its actions based on a
question of what constitutes an appropriate unit. The only se-
rious question raised about the scope of the bargaining unit
is concerning whether the Manpower, Inc. employees should
be included or excluded from the unit. This question is only
raised in the context of Respondent’s majority status argu-
ment to increase the size of the unit in relation to the number
of membership cards the Union had secured. At the negotia-
tions which lead to the involved settlement agreement, the
parties agree that there was some dispute as to whether lab-
oratory employees should be exluded, and there was perhaps
some dispute over lead persons and plant clericals. The par-
ties knew that during the moratorium period, the plant’s op-
erations would expand and that some changes in the manner
of operation might occur. The anticipated expansion and
changes presumably were addressed when the agreement was
drafted in 1987 and the phrase ‘‘appropriate unit’’ was cho-
sen. However, there has been no showing in this record why
the historical unit description set out in this decision (see fn.
1) is not currently appropriate.
As noted by the General Counsel on brief, Hicks testified
that as of July 1987, ‘‘production was production out in the
plant and maintenance was maintenance in the plant.’’ Noth-
ing presented in the evidence would make this statement any
less true as of March 1989. The proper focus in determining
whether a particular bargaining unit is appropriate includes
whether the unit members share similarities in skills, inter-
ests, duties, and working conditions; whether unit members
have contact with one another and can transfer classifica-
tions, and whether the employer’s organizational and super-
visory structure is centralized and terms of employment are
uniformly applied to unit member. Armco, Inc. v. NLRB, 832
F.2d 357 (6th Cir. 1987). The evidence shows that the rel-
evant factors did not change significantly between July 1987,
and March 1989, and thus, any changes that Respondent
made in the Morristown plant did not affect the appropriate-
ness of the historical bargaining unit.
Changes in operation must result in substantive, significant
alterations of working conditions to impact the unit structure
or bargaining obligation. See D & K Frozen Foods., 293
NLRB 859 (1989). The evidence shows that though there has
been a change of resin composition and color, level of qual-
ity control and shift in the direction of the business with re-
spect to customers, the evidence also shows that Respond-
ent’s painters still paint, molders still mold, and inspectors
still inspect small plastic products despite changes in color
or weight. If because of changes in operations of the plant,
there does exist some question about the scope of the unit,
it can be resolved and the unit revised through negotiations,
arbitration or a unit clarification proceeding. As can be seen
from the terms of the settlement agreement, the parties were
able to agree on arbitration as a means to define the unit
under the grievance provisions of the agreement. The matter
of the Manpower, Inc. employees being in or out of the unit
for that period before they are transferred to Respondent’s
payroll should be decided in this manner. I find it unneces-
sary to decide whether they should be included in the unit
for purposes of determining majority status as their status in
that regard is irrelevant given my disposition of all the other
issues. In conclusion, I find that the unit description utilized
historically at the Morristown facility is currently appro-
priate.
3. The settlement agreement requires that Respondent
bargain with the Union after the 18-month moratorium
without regard to majority status
Additionally, while the Respondent contends that the lan-
guage of the memorandum of agreement does not obligate it
to bargain with the Union following the expiration of the 18-
month moratorium period, there are numerous reasons, both
factual and legal, why this argument is totally unpersuasive.
To begin with, even assuming, arguendo, that the agreement
actually was silent regarding the Respondent’s obligation to
bargain (as was the situation in Straus), the obligation would
still exist. As the Second Circuit pointed out in Straus re-
garding the lack of an explicitly stated obligation:
The Board could reasonable infer that the Union would
not have agreed to withdraw its pending charges unless
it was satisfied with the resolution of the issues con-
tained in the complaint, including a commitment by the
company to bargain. [625 F.2d at 464.]
In actuality, the agreement at issue is not silent regarding
the Respondent’s obligation to bargain. By its terms, it mere-
ly provides for a period of delay, i.e., a moratorium, prior
to the commencement of negotiations. Despite the Respond-
ent’s belated attempts to disavow its obligation to bargain in
testimony at the hearing, the fact that the Respondent fur-
nished the Union with confidential information, 15 months
after the agreement was entered into, which had been re-
quested ‘‘in order to prepare for the upcoming negotiations,’’
clearly refutes the idea that there was no discussion regarding
the Respondent’s obligation during the settlement negotia-
tions. To the contrary, based on the credible evidence of
record, I have found that the Respondent did commit itself
to bargain after the 18-month delay period.
Many of the same arguments advanced by Respondent
were also advanced by the respondent in the recent similar
case of Van Ben Industries, 285 NLRB 77 (1987), where the
Board affirmed the decision of an administrative law judge.
The judge in Van Ben, at 78–79, found:
It is settled law that the parties to a settlement agree-
ment resolving refusal to recognize and bargain charges
filed under Section 8(a)(5) of the Act by providing for
a respondent’s assumption of the duty to recognize and
bargain with a union as the exclusive collective-bar-
gaining representative of such respondent’s employees
are entitled to a reasonable period of time after the exe-
cution of same in which to conclude an agreement and
that during such reasonable period of time, the respond-
ent is precluded from questioning the union’s majority
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
status. Poole Foundry Co., 95 NLRB 34 (1951). The
principle has been held firmly applicable to non-Board
settlement agreements as involved herein. VIP Lim-
ousine, 276 NLRB 871 (1985), and Mammoth of Cali-
fornia, 253 NLRB 1168 (1981). While Respondent as-
serts that the Board’s decision in Harley-Davidson Co.,
273 NLRB 1531 (1985), holding a successor employer
has the right to question a union’s majority status at
any time should be controlling herein such decision is
inopposite [sic] when, as here, the Employer involved
entered into a settlement agreement resolving refusal-to-
bargain charges, the quid pro quo for the withdrawal of
the charges and dismissal of complaint being the Em-
ployer’s undertaking of the duty to recognize and bar-
gain with the Union for a reasonable period of time un-
like the situation in Harley-Davidson, supra; where the
employer, believing he ‘‘might be a successor’’ recog-
nized the union initially, bargained with it and when
later faced with proof of employee repudiation of the
union withdrew recognition. Poole Foundry Co., supra
at 36; and, compare NLRB v. Vantran Electric Corp.,
580 F.2d 921 (7th Cir. 1978). The principle that the
parties’ agreement, supported by important consider-
ation of both sides including the relinquishment of sig-
nificant rights ‘‘if it is to achieve its purpose must be
treated as giving the parties thereto a reasonable time
in which to conclude a contract,’’ is too readily appar-
ent a necessary corollary to the parties’ agreement to
need further explanation, and has been confirmed re-
cently since the Poole decision. VIP Limousine, supra.
Respondent contends that its situation is distinguishable
from the one presented in Van Ben because, inter alia, it did
not admit that it was a successor corporation to ACI. Be-
cause of the settlement being reached before evidence was
taken in the prior proceeding, no evidence was adduced con-
cerning the successorship issue. However, in the instant pro-
ceeding, evidence was adduced which establishes that Re-
spondent was indeed a successor to ACI and thus, had a bar-
gaining obligation with the Union. Moreover, I believe that
Respondent is estopped from relying on this claim. As the
Tenth Circuit noted in W. B. Johnston Grain Co. v. NLRB,
365 F.2d 582, 587 (10th Cir. 1966):
It is true that the settlement agreement was not an
admission that the Company had been guilty of an un-
fair labor practice by refusing to bargain, but a party
who enters into a valid compromise agreement for the
settlement of litigation may not thereafter escape its ob-
ligation to carry out the settlement agreement, on the
ground that the claim asserted against it, which was set-
tled by the agreement, was groundless.
I further find that the Respondent’s assertion that the non-
Board settlement here is not entitled to the same treatment
as the Board afforded the settlement in Van Ben is meritless.
It argues that the settlement agreement lacked sufficient
Board involvement to find intent for it to incorporate the full
complement of statutory bargaining obligations. I disagree.
First, Judge Leiner approved the withdrawal of charges by
the Union, stating on the record his understanding that the
quid pro quo therefor included recognition of the Union by
the Respondent. The General Counsel involved in the pro-
ceeding was familiar with all of the terms of the agreement
and approved of it. The fact that such approval took the form
of an affirmative response to the Judge’s inquiry as to wheth-
er she had no opposition to the agreement does not change
the fact that approval was given. Had the General Counsel
opposed the agreement, the judge could not have accepted it
without full knowledge of its contents. The Regional Director
approved the withdrawal of charges with knowledge of the
terms of the agreement and himself withdrew the petition for
10(j) relief solely because the refusal to bargain dispute had
been settled. The only difference between the instant case
and Van Ben in this regard is that the settlement was not
placed in the record. I cannot see how this difference is sig-
nificant considering the degree of knowledge of the instant
settlement agreement’s terms by the judge, the General
Counsel, and the Regional Director, all of whom approved
the agreement.
I find therefore, that the Union was entitled to an
irrebutable presumption of majority status for a reasonable
period of time as was the union in Van Ben, supra. The Re-
spondent asserts that if that is the case, more than a reason-
able period of time elapsed between its recognition of the
Union and its assertion that the Union lacked majority status.
I disagree. As the Board noted in Brennan’s Cadillac, 231
NLRB 225, 226 (1977), a ‘‘reasonable time does not depend
upon either the passage of time or the number of calendar
days.’’ Rather, the parties to a settlement agreement are enti-
tled to a reasonable period of time ‘‘in which to conclude
a contract’’ and the test is whether or not there has been ‘‘a
substantial period of time during which good faith negotia-
tions could have ensued.’’ Van Ben, supra at 79. In Van Ben,
the judge found that ‘‘negotiations were at a nascent stage
when the Respondent severed the [bargaining] relationship
. . .’’ after one ‘‘preliminary meeting.’’ Id. at 79. In the in-
stant case, the Respondent’s act of severing the bargaining
relationship was even more egregious, as negotiations were
completely prevented from taking place at all.
The concept that the reasonable period of time is to be
measured by whether or not the parties have an adequate op-
portunity to bargain, rather than by the passage of time, is
clearly illustrated in All Brand Printing Corp., 236 NLRB
140 (1978), enfd. 594 F.2d 926 (2d Cir. 1979). In All Brand
the union was certified as the collective-bargaining represent-
ative of the company’s skilled employees. The company re-
fused to negotiate, however, claiming that it could not afford
a union contract. The union then filed an 8(a)(5) charge, and
following an investigation of the charge, the Board issued a
complaint. On the same day that the complaint issued, the
company filed for chapter 11 bankruptcy. During a recess of
the ensuing bankruptcy proceedings, the company and the
union entered into a settlement agreement. Under the terms
of the agreement, the company promised that it would begin
bargaining with the union 60 days after the bankruptcy court
worked out an agreement with its creditors. This event did
not take place until 3 years later and bargaining did not com-
mence until 4 months further down the road from that. Nev-
ertheless, the Board rejected the company’s attempt to estab-
lish a good-faith doubt of the union’s majority status. Id. at
148. In reaching this decision, the Board, by adoption of the
judge’s decision, noted:
1133TEXTRON, INC.
5 See Forbidden City Restaurant, 256 NLRB 409, 411 (1982); Louisiana-
Pacific Corp., 283 NLRB 1079 (1987).
[The] Respondent’s alleged doubt did not rest on any
reasonable basis in fact. Finally, regardless of the merit
of the issue, it was an irrelevant issue under the facts
of this case, because the bargaining relationship estab-
lished by the settlement agreement was entitled to a
reasonable time in which to function free of any chal-
lenge to the Union’s majority status, Poole Foundry
and Machine Co., supra. 95 NLRB at 36–37, enfd. 192
F.2d at 743–744. [Id. at 148.]
Even in the context of a voluntary grant of recognition, as
opposed to recognition granted in a settlement agreement,
‘‘[t]he Board has consistently held that . . . the union is en-
titled to an irrebuttable presumption of majority status until
a reasonable time for bargaining has elapsed.’’ Royal Coach
Lines, 282 NLRB 1037, 1038 (1987). In Royal Coach Lines,
the employer voluntarily executed an agreement recognizing
the union then later refused to bargain because a majority of
the unit employees had signed a petition stating that they did
not wish to be represented by the union. The Board rejected
the employer’s argument that the petition gave rise to a
good-faith doubt of the union’s majority status for the fol-
lowing reasons:
We need not decide whether the employee petition
could support a good-faith doubt as to the Union’s ma-
jority status or a finding of no majority in fact. A rea-
sonable time for bargaining had not elapsed. Absent a
threshold finding that a reasonable time for bargaining
has elapsed, evidence of actual employee disaffection
with the Union is irrelevant. Brennan’s Cadillac, above,
231 NLRB at 226. [Id. at 1038.]
In light of the facts of the instant case, where by mutual
agreement, the parties precluded any opportunity for bar-
gaining until 18 months after the Respondent had obtained
clear title to the plant, it would be virtually impossible to
justify a conclusion that a reasonable opportunity for bar-
gaining had elapsed. Therefore, I find that by withdrawing
recognition and refusing to bargain with the Union on or
about March 31, 1989, Respondent violated and continues to
violate Section 8(a)(1) and (5) of the Act.
D. Respondent’s Good-Faith Doubt of Majority Status,
Though Found to be Irrelevant, was not
Proven in this Record
As I have found that the Union is entitled to an
irrebuttable presumption of majority status for a reasonable
period of time after the expiration of the 18-month morato-
rium, Respondent’s assertion of a good-faith doubt of major-
ity status is irrelevant to the disposition of this case. How-
ever, it will be addressed in the event it subsequently deemed
to have a bearing on the outcome of this case. First, I do
not believe that Respondent had a good-faith doubt with re-
spect to the Union’s majority status.
1. The Respondent’s reasons given to the Union for
doubting majority status are not credible
The only reason given to the Union for doubting majority
status at the time of the refusal to bargain was the Union’s
refusal to consent to a card count. I fully agree with General
Counsel that the reasons given for requesting the card count
are both suspect and fall short of establishing an objective
basis for manifesting a good-faith doubt. Hicks testified that
the decision to request a card count began when an hourly
employee Harold Davis, stated to Respondent’s plant per-
sonnel manager Harry Parker that the Union had enough
cards to organize the plant. At the time of this conversation
in March 1989, Parker was aware that the Union had taken
the position in recent meetings with employees that the Com-
pany had already been recognized by the Respondent. The
conversation was relayed to Hicks, who certainly knew that
the Union took that position and that it had expressed that
position to employees as far back in time as the September
1987 notice to employees from the Union. That same notice
encouraged employees to sign membership cards to be able
to vote in union elections, while noting that the cards had
nothing to do with recognition. In fact, Parker testified that
he had found a union membership card in the plant before
his conversation with Davis.
Therefore, Hicks, on hearing of the conversation between
Davis and Parker knew full well that the matter of card sign-
ing had nothing to do with organizing and recognition, and
to the extent that his testimony reflects otherwise, it is not
credited as the truth. If he had had any doubts about the sta-
tus of the Union’s recognition, he certainly would not have
responded to the Union’s information request for the purpose
of negotiations in September 1988. Yet, he did respond and
furnished the Union with the requested information. After
Hicks learned of the Davis-Parker conversation, and more
significantly, after the Union’s March 10, 1989 request for
negotiations from Jeffrey, Hicks visited the Respondent’s
labor counsel.
Hicks called Jeffrey on the morning of March 20 for the
purpose of requesting a card count to verify majority status.
Hicks started the conversation by telling Jeffrey ‘‘that we
needed to satisfy that question whether they did represent a
majority of the employees.’’ At this point, Respondent had
no right under the law to request such a count. The Company
had recognized the Union in the settlement agreement and
had continued to reflect recognition in the December 1988
response to the Union’s information request. The settlement
agreement said nothing about a card count being necessary
before bargaining could begin. What then could give rise to
the good-faith doubt of majority status that would prompt the
card count request.
Hicks and Parker testified that between them they had had
conversations with some 10 employees who they felt ex-
pressed a desire not to either join or be represented by the
Union. These conversations took place when the employee
complement of the plant was well over 200 hourly employ-
ees. I cannot find that these conversations meet the Board’s
general test that at least 50 percent of the employees must
express dissatisfaction with the Union to give rise to a good-
faith doubt of majority status.5 Close examination of the tes-
timony about these employee conversations will also reflect
that Hick’s and Parkers’ opinion that they reflected a desire
not to be represented by the Union was highly subjective.
The conversations, to the extent that either Hicks or Parker
could recount them seem to me to reflect either a desire not
to join the Union and pay dues, or an expression of fear of
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See United Supermarkets., 214 NLRB 958, 966 (1974); Richard O’Brien
Plastering, 268 NLRB 676, 678 (1984); Northeast Truck Center, 296 NLRB
753 (1989); NLRB v. North American Mfg. Co., 563 F.2d 894 (8th Cir. 1977).
employer retaliation if they did join the Union. In any event,
these conversations are clearly not legally sufficient to raise
a good-faith doubt about the Union’s majority status.6
I have already found that there was nothing in the credited
testimony about the Parker-Davis conversation which would
create a good-faith doubt. The Board has held that solicita-
tion of membership cards does not raise such a good-faith
doubt. See Odd Fellow Rebekah Home, 233 NLRB 143
(1977); Club Cal-Neva, 231 NLRB 22 (1977); NLRB v.
Washington Manor., 519 F.2d 750 (6th Cir. 1975). The union
witnesses testified that the Union had two reasons for solic-
iting membership cards: first, International elections required
knowing who actually were members and secondly, the cards
were to be used once bargaining began. Hicks knew that the
cards were unnecessary for recognition.
For the reasons set forth above, I find that Respondent did
not have a good-faith doubt about the Union’s majority status
when it demanded a card count as a precondition to contin-
ued recognition or bargaining. As it did not have an objec-
tive good-faith doubt of majority status prior to making the
card count demand, the request for the card count was im-
proper and the refusal by the Union to submit to such a
count cannot form the basis for the Respondent’s alleged
good-faith doubt. See VIP Limousines, supra; Louisiana Pa-
cific Corp., supra.
2. After-the-fact reasons asserted by respondent for its
alleged good-faith doubt
After withdrawing recognition from the Union, the Re-
spondent has offered certain other reasons for its alleged
good-faith doubt which were not communicated to the Union
at the time recognition was withdrawn. I do not believe these
reasons are properly considered as I firmly believe they
played no part in the decision to withdraw recognition and
refuse to bargain. However, I will address each such reason
advance in order to fully consider all of Respondent’s asser-
tions.
a. The change in the composition of the unit
I have already found that the changes in Respondent’s op-
erations from 1987 to 1989 not to be significant from the
standpoint of employee job classifications and the type of
work performed. There is no showing whatsoever that any
job classification changed or that some other significant
change in direction of company operations occurred after
March 10, 1989, a date on which the company still recog-
nized the Union with no good-faith doubt as to its majority
status. Martin of Mississippi, 283 NLRB 258 (1987). Simi-
larly, there is no showing that any significant expansion in
the Respondent’s work force and increase in employee turn-
over after March 10, which would supply an objection reason
for a good-faith doubt of majority status. If one is to believe
that these factors played a role in raising Respondent’s good-
faith doubt, why did they not come to mind when the Re-
spondent, in December 1988, supplied employee information
to the Union to be used in negotiations. Certainly at that
juncture, Respondent would have realized that its manner of
operation had changed to some degree and that its workforce
has significantly grown.
Even though I do not believe that the unit composition
factors came to mind as a reason for Respondent alleging a
good-faith doubt as to majority status until after recognition
had been withdrawn, use of these factors in the cir-
cumstances of this case is not legally supportable. The rule
that a large turnover of employees unaccompanied by objec-
tive evidence that the new employees do not support the
union is no evidence of loss of majority status by the Union.
See NLRB v. Hondo Drilling Co., 525 F.2d 864 (5th Cir.
1976); NLRB v. Washington Manor, Inc., supra; VIP Lim-
ousines, 276 NLRB 871, 878 (1985); Odd Fellow Rebekah
Home, supra. Respondent herein has failed to offer any ob-
jective evidence that would overcome the presumption that
new employees support the Union in the same ratio as the
employees they replaced. The matter of plant expansion does
not offer a valid reason for the expressed good-faith doubt.
The expansion had been ongoing since Respondent had got-
ten clear title to the plant and had been anticipated by the
parties before and at the time of the execution of the settle-
ment agreement. See El Torito-La Fiesta Restaurants, 284
NLRB 518 (1987); NLRB v. King Radio Corp., 510 F.2d
1154 (10th Cir. 1975); Sahara-Tahoe Hotel v. NLRB, 581
F.2d 767 (9th Cir. 1978); Pioneer Inn Casino v. NLRB, 578
F.2d 835 (9th Cir. 1978).
b. The Union’s involvement with Respondent and unit
employees between grant of recognition
and withdrawal thereof
The Respondent now asserts that it doubted the Union’s
majority status for the additional reasons that the Union had
slight contact with it and the bargaining unit after recognition
was granted. Specifically, Respondent contends that the
Union failed to communicate with it, failed to file griev-
ances, failed to appoint shop steward or other union rep-
resentatives, failed to hold meetings, and notes that no one
ever requested dues check off. I believe the last of these rea-
sons given by Respondent is a good indication of how seri-
ously it takes its own argument. How can there be dues
checkoff with no agreement in place between the Union and
Respondent calling for such a procedure. How could the
Union request dues checkoff when there was an 18-month
moratorium in bargaining.
It appears that the Respondent wants to, in the words of
the old saying, ‘‘have its cake and eat it, too.’’ The terms
of the settlement agreement effectively preclude union pres-
ence at the Respondents’ facility for 18 months. This lack of
presence was what the Respondent wanted when it nego-
tiated the settlement. There was no need for shop stewards
or local union officers for the moratorium period as they
would have had no function under the settlement agreement.
There could be no bargaining in that period of time, and the
limited grievance procedure specifically called for grievances
to be handled by a union International representative, not a
company employee. Likewise, there would be no need for
meetings until bargaining was to commence, which is when
the Union scheduled the meetings. There was no need for
local officers until bargaining was to commence, which is
when the Union elected local officers. There would be no
need to grieve a discharge of a nonprobationary employee
1135TEXTRON, INC.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
unless a request to grieve was received by the Union, and
no requests were received.
Almost immediately after the execution of the settlement
agreement, the Union contacted the unit employees and in-
formed them of the terms of the agreement, including the 18-
month moratorium. Jeffrey testified without contradiction that
he continued to have contact with unit members. Jeffrey con-
tacted the Respondent itself on the only occasion which it
would have necessity to make contact, that is, in preparation
for bargaining.
It appears to me that the Company did not doubt the ma-
jority status when the Union was doing little and maintaining
its required low profile under the settlement agreement. The
alleged ‘‘doubt’’ surfaced only when the Union became ac-
tive and began to do all the things the Respondent urges a
Union should do, seek members, hold meetings, commu-
nicate with the employer, elect officers, etc. Under the cir-
cumstances, I do not find that the Union’s asserted inactivity
can form the basis for a good-faith doubt of its majority sta-
tus. See Sahara-Tahoe Hotel, supra; Pioneer Inn Casino,
supra; NLRB v. Washington Manor, supra; NLRB v.
Leatherwood Drilling Co., 513 F.2d 270 (5th Cir. 1975);
NLRB v. All Brand Printing Corp., supra; Amscot Coal, 281
NLRB 170 (1986); VIP Limousine, supra; NLRB v. North
American Mfg. Co., supra; Cut & Curl, 227 NLRB 1869
(1977); Club Cal-Neva, 231 NLRB 22 (1977); Flex Plastics,
262 NLRB 651 (1982); U-Save Food Warehouse, 271 NLRB
710, 717 (1984).
In conclusion, on the matter of Respondent’s good-faith
doubt about the Union’s majority status, I find that Respond-
ent did not have a good-faith doubt when it withheld rec-
ognition and refused to bargain. Thus, I again find and con-
clude that Respondent violated Section 8(a)(1) and (5) when
it withdrew recognition from and refused to bargain with the
Union.
CONCLUSIONS OF LAW
1. Respondent, Randall Division of Textron, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 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 employees of Respondent in the unit described
below constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
All production, laboratory and maintenance employees
employed at the Morristown, Indiana facility, but ex-
cluding employees who regularly work less than forty
(40) hours per month, management trainees, assistant
foremen, expediters, layout men, time study men, esti-
mators, draftsmen, administrative personnel, office
clericals, professional employees and all guards and su-
pervisors as defined in the Act.
4. At all times since July 13, 1987, the Union has been
and is currently the exclusive bargaining representative of the
employees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(a)
of the Act.
5. Since on or about March 30, 1989, the Respondent has
withdrawn recognition from the Union and has failed and re-
fused to bargain collectively with it as the exclusive collec-
tive-bargaining representative of the employees in the unit
herein found appropriate, and by virtue of its actions, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, it is recommended that it be ordered to
cease and desist and take certain affirmative action necessary
to effectuate the policies of the Act.
As the Respondent has unlawfully withdrawn recognition
from the Union and failed and refused to bargain collectively
with the Union as the exclusive collective-bargaining rep-
resentative of its employees in the unit found to be appro-
priate, it is recommended that Respondent be ordered to, on
request, extend recognition to the Union and bargain with the
Union in good faith with respect to wages, hours of work,
and any other terms and conditions of employment of such
employees, and to post appropriate notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
Respondent, Randall Division of Textron, Inc., Indianap-
olis, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Withdrawing recognition from and refusing to bargain
collectively in good faith concerning wages, hours, and other
terms and conditions of employment with International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, as the exclusive collec-
tive-bargaining representative of its employees in the fol-
lowing appropriate unit:
All production, laboratory and maintenance employees
employed at the Morristown, Indiana facility, but ex-
cluding employees who regularly work less than forty
(40) hours per month, management trainees, assistant
foremen, expediters, layout men, time study men, esti-
mators, draftsmen, administrative personnel, office
clericals, professional employees and all guards and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain collectively in good
faith with International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
UAW, as the exclusive collective-bargaining representative
of the employees in the bargaining unit found appropriate
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
above, with respect to their wages, hours of work, and other
terms and conditions of employment and, if an agreement is
reached, embody it in a signed contract.
(b) Post at its facility in Morristown, Indiana, copies of the
attached notice marked ‘‘Appendix.’’8 Copies of said notice,
on forms provided by the Regional Director for Region 25,
after being duly signed by Respondent’s representative, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order, what steps have been taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 withdraw recognition from and refuse to
bargain in good faith concerning rates of pay, wages, hours,
and other terms and conditions of employment with Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW, as the exclusive
collective-bargaining representative of our employees in the
following appropriate unit:
All production, laboratory and maintenance employees
employed at the Morristown, Indiana facility, but ex-
cluding employees who regularly work less than forty
(40) hours per month, managmement trainees, assistant
foremen, expeditors, layout men, time study men, esti-
mators, draftsmen, administrative personnel, office
clericals, professional employees and all guards and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively in
good faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW, as the exclusive collective-bargaining representative
of our employees in the bargaining unit described above,
with respect to their rates of pay, wages, hours of work, and
other terms and conditions of employment and, if an agree-
ment is reached, embody it in a signed contract.
RANDALL DIVISION OF TEXTRON, INC.