R.J.B. Knits

National Labor Relations Board - Board Decisions

Oct 6, 1992

309 N.L.R.B. 201 (N.L.R.B. 1992)

201
309 NLRB No. 22
R.J.B. KNITS
1 The judge issued an errata and a supplemental errata on May 4
and 19, 1992, respectively.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
In fn. 3 of his decision, the judge found that 31 of the 33 employ-
ees hired by the Respondent between July 26, 1989, and the date
of the instant hearing, April 1, 1992, did not remain employed for
more than a year. The record (R. Exh. 1), however, shows that there
were 29 employees who did not remain employed for more than a
year, rather than 31. This matter does not, in any event, affect our
result.
In the fourth paragraph of his Analysis section, the judge found
that the lack of union membership on the part of any of the unit
employees did not serve to legitimize the Respondent’s withdrawal
of recognition from the Union. We agree with the judge. In doing
so, however, we do not rely on his particular factual finding in that
paragraph that most of the unit employees were still probationary
employees at the time of withdrawal of recognition. Although there
is no specific exception to this finding, we find that it is not sup-
ported by a preponderance of the evidence.
R.J.B. Knits, Inc. and Local 149, International La-
dies’ Garment Workers Union, AFL–CIO. Case
22–CA–18172
October 6, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 27, 1992, Administrative Law Judge Ste-
ven B. Fish issued the attached decision.1 The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
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,2 and con-
clusions and to adopt the recommended Order, as
modified below in accordance with the May 4, 1992
errata.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, R.J.B.
Knits, Inc., Perth Amboy, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) Notify the Union in writing that its agents’ ac-
cess to the Respondent’s premises and employees has
been restored pursuant to the terms of article XXI of
its collective-bargaining agreement which expired on
December 31, 1991.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT withdraw recognition from, or refuse
to bargain collectively with, Local 149, International
Ladies’ Garment Workers Union, AFL–CIO, as the ex-
clusive bargaining representative of employees in the
following appropriate unit:
All non-supervisory production, maintenance,
packing, shipping, and trucking employees em-
ployed by us, including regular and trial period
employees, but excluding office clerical and man-
agerial employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT deny agents and representatives of the
Union reasonable access to our premises and our em-
ployees.
WE WILL NOT unilaterally cease to make contribu-
tions to the Union’s fringe benefit funds as provided
in the collective-bargaining agreement between the
parties which expired on December 31, 1991.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively with the
Union as the exclusive bargaining representative of our
employees in the aforesaid unit and, if an understand-
ing is reached, embody the same in a signed agree-
ment.
WE WILL notify the Union in writing that its agents’
access to our premises and employees has been re-
stored pursuant to the terms of article XXI of our col-
lective-bargaining agreement which expired on Decem-
ber 31, 1991.
WE WILL make all fringe benefit contributions as
provided in the collective-bargaining agreement which
expired on December 31, 1991, and make whole the
unit employees by reimbursing them with interest for
any losses they may have suffered as a result of our
failure to make the various fund contributions.
R.J.B. KNITS, INC.
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved below, my findings are
based on my examination of the entire record, my observation of the
witnesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony. Therefore, any testimony in the record
which is inconsistent with my findings is discredited.
2 There are 16 employees who fall into that category.
3 Out of the 33 employees employed by Respondent, 31 were not
employed for over a year.
Julie Kaufman, Esq., for the General Counsel.
Sanford Browde, Esq. (Krieger & Browde), of Jersey City,
New Jersey, for Respondent.
Jesse Strauss, Esq. (Reitman, Parsonnet & Duggan), of
Newark, New Jersey, for the Charging Party.
DECISION
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by Local 149, Inter-
national Ladies Garment Workers Union, AFL–CIO (the
Union), the Regional Director for Region 22, issued a com-
plaint and notice of hearing on January 30, 1992, alleging in
substance that R.J.B. Knits, Inc. (Respondent) has violated
Section 8(a)(1) and (5) of the Act, by in substance failing
and refusing to meet and bargain with the Union. Thereafter,
on February 28, 1992, the Regional Director issued a first
amended complaint, which added allegations that Respondent
withdrew recognition from the Union, failed and refused to
abide by the terms of its collective-bargaining agreement by
failing and refusing to make pension and health and welfare
contributions, and denied union representatives access to Re-
spondent’s employees at its facility, all in violation of Sec-
tion 8(a)(1) and (5) of the Act.
The trial with respect to the above was held before me on
April 1, 1992, in Newark, New Jersey. Briefs have been filed
by General Counsel and Respondent and have been carefully
considered.
Based on my review of the entire record,1 including my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a corporation with an office and place of
business in Perth Amboy, New Jersey (Respondent’s facil-
ity), where it is engaged in the assembly of women’s gar-
ments. During the past year, Respondent sold and shipped
from its facility products, goods, and materials valued in ex-
cess of $50,000 directly to points outside the State of New
Jersey. It is admitted and I so find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
It is also admitted and I so find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
II. FACTS
Respondent’s president and chief executive is Al
Carpenito. His daughter Judy Carpenito is employed by Re-
spondent as a more or less office manager and assistant to
her father.
From 1963 to 1988, Al Carpenito had been a partner in
a firm named Kent Knitting Mills in Jersey City, New Jer-
sey. During that period of time, Kent had been a party to a
collective-bargaining agreement with the ILGWU. In 1988,
Carpenito split with his partner and formed Respondent. At
that time, he voluntarily recognized the Union as the collec-
tive-bargaining representative of Respondent’s employees,
and negotiated a contract with the Union covering such em-
ployees.
The last collective-bargaining agreement between the par-
ties was effective by its terms from January 2, 1989, to De-
cember 31, 1991. The agreement contains a union-security
clause which requires membership in the Union as a condi-
tion of employment on and after 30 days of employment, but
not before completion of the trial period. The trial period for
employees varies from 30–90 days, depending on the classi-
fication of employees.
The agreement provides for payment by Respondent into
the Union’s Health and Welfare, Retirement, and Health
Services Funds of specific amounts, on behalf of all unit em-
ployees, which change on various dates from January 1,
1989, to December 15, 1991.
The agreement also provides that the Union will have ac-
cess to the plant for the purpose of taking up employee com-
plaints, and ascertaining whether the terms of the agreement
are being complied with. However, the agreement further
states that in the event the union representative wishes to talk
to any individual employee concerning a complaint or griev-
ance, an appropriate place will be designated for such discus-
sion so as not to interfere with production.
Respondent has employed from four to nine employees in
the bargaining unit over the course of its existence. They
have consisted of floorworkers and knitters. Respondent has
also employed from one to three mechanics who were not
part of the bargaining unit. Most of Respondent’s employees
have been knitters, who under the contract have a 90-day
probationary period because of the extensive training that is
required for this position. Respondent experiences significant
turnover in this position because of the difficulty of training
employees to master the job. In that connection, Respond-
ent’s records reveals that for the period from July 26, 1989,
to the date of the hearing, it has employed 33 different em-
ployees, many of whom did not last the 90-day probationary
period,2 with most of such employees being employed for
less than a year.3
The agreement also provides for a checkoff of union dues,
on execution of checkoff authorizations. As of January 4,
1991, and March 2, 1991, the Union was receiving dues
from six knitters employed by Respondent. As of May 3,
1991, the number was reduced to three. The other three em-
ployees left the employ of Respondent in the interim for un-
specified reasons. The number of employees who had their
dues checked off was further reduced to two as of July 1991,
and to one employee Juan Meri, from August 1991 to Octo-
ber 1991. Meri, in fact, left Respondent’s employ voluntarily
on October 18, 1991. At the time, Meri left Respondent em-
ployed six knitters, including Meri. They were with their
starting dates next to their name, as follows:
Alfredo Quezadas 2/13/91
Hector Vargas 5/2/91
Eduardo Picazo 7/5/91
Carlos Perez 7/30/91
Saul Martinez 10/2/91
203R.J.B. KNITS
On October 24, 1991, Respondent hired Felix Perez (ap-
parently to replace Meri), who was also employed as a knit-
ter.
On October 2, 1991, the Union by letter notified Respond-
ent that it desired to meet with Respondent to bargain con-
cerning the terms of a new contract, which was about to ex-
pire on December 31, 1991. During the month of October
1991, Carpenito did not respond to the Union’s letter, be-
cause he was thinking about what he could afford to pay
when he signs a contract with the Union.
After employee Meri left, and was apparently replaced by
Felix Perez, on November 24, 1991, Respondent employed
six employees in the bargaining unit. None of these employ-
ees were members of the Union. Nor had the Union rep-
resentative ever approached these six employees about join-
ing the Union.
In early November, Rosario Charita Machin, a representa-
tive of the Union visited Respondent’s facility. She spoke to
all six employees working on that day. According to Machin,
she gave authorization and checkoff cards to only two em-
ployees, since these were the only two who had passed their
probationary period. However, she told all the employees
that the Union and Respondent were parties to a contract that
required all the employees to become members of the Union
once they completed their probationary periods. She also told
them about some of the benefits that they would receive
under the contract, and discussed the waiting periods in-
volved for some of these benefits. Additionally, in response
to a question from one of the employees as to what would
happen if he did not become a member, Machin replied that
Respondent is obligated under the contract to dismiss such
an employee. The two employees to whom Machin gave au-
thorization cards to, told Machin that they would fill out the
cards as requested.
According to Machin, at that point, Carpenito asked her
and she agreed to extend the probationary period of one of
the two employees to whom she gave cards. Carpenito denies
asking that Machin agree to extend the probationary period
of any employee. I do not deem it necessary to resolve this
conflict in testimony.
After Machin left the premises, employees Alfredo
Quezades and Carlos Perez approached Respondent’s me-
chanic Manuel Feliciano. Feliciano was by far the most sen-
ior of Respondent’s employees, and in fact was employed
with Respondent for the entire time since it began in 1988,
as well as being an employee of Carpenito’s various compa-
nies for 25 years. Feliciano is also fluent in Spanish, which
is apparently the only language that the employees speak.
Quezadas and Perez told Feliciano that the lady from the
Union had told them that they had to join the Union or they
couldn’t work for Respondent, and asked Feliciano how to
fill out the cards. Feliciano explained to them how to do it.
They then asked Feliciano if it was true as told to them by
the lady from the Union, that they had to join the Union or
they couldn’t work for Respondent. Feliciano responded that
it was up to them whether they wanted to join the Union.
The employees at that point told Feliciano that they didn’t
want to join the Union, and they were going to quit. They
added that they didn’t want to pay dues and if they had to
join the Union and pay dues, they were going to quit.
Later on that same day, while at lunch with all six of Re-
spondent’s employees, Feliciano and the employees again
discussed the Union. Employee Eduardo Picazo said that he
had problems and experiences with the Union before, and he
also would rather quit than join the Union. All the other em-
ployees in the shop (six in total) told Feliciano that they
didn’t want to pay union dues because the Union takes their
money and doesn’t do anything, and added that they would
rather quit their job than have to join the Union.
After these conversations, Feliciano spoke to Al Carpenito.
Feliciano informed Carpenito that Charita (Machin) had
given cards to employees to fill out and told them that if
they didn’t fill out the cards and join the Union, they
couldn’t work. Feliciano added that all six of Respondent’s
employees had told him that they didn’t want to pay dues
or become members of the Union, and that all of the em-
ployees were going to quit if they were forced to join the
Union.
Subsequent to this conversation with Feliciano, Carpenito
contacted an attorney. As a result of his discussions with his
attorney, Carpenito decided not to negotiate with the Union,
because he felt that the employees didn’t want the Union,
and if he signed a new contract, they would quit.
On November 25, 1991, Harold Krieger, Respondent’s at-
torney, sent a letter to the Union, reading as follows:
Please be advised that we are the attorneys for RJB
Knitting Mills, Inc. Your letter of October 21, 1991 has
been referred to this office for our attention.
As you are aware, there are only six employees in
this plant and we have been informed that they are not
members of the Union. The collective bargaining agree-
ment expires on December 31, 1991. Under the cir-
cumstances it would be a violation of law to enter into
any agreement with the Union on their behalf. If there
are any questions, please do not hesitate to commu-
nicate with this firm.
By letter dated December 2, 1991, Jesse Strauss, attorney
for the Union, responded to Krieger’s letter of November 25,
1991. Strauss’ response is as follows:
I am counsel to the New Jersey Region of the Inter-
national Ladies’ Garment Workers’ Union, and I have
been asked to respond to your letter of November 25,
1991 regarding RJB Knitting Mills.
In view of the labor background which I understand
you have, I am quite surprised at the position you have
taken in this letter.
A collective bargaining agreement is in effect be-
tween the ILGWU and RJB Knitting Mills. The only
reason the 6 employees are not members of the Union
is because they are currently in a probationary period,
a status which is clearly set forth in the collective bar-
gaining agreement. Without question, they are members
of the bargaining unit.
Accordingly, the bargaining obligation of the Em-
ployer has not changed one wit. I would like to know
what violation of law would exist upon entering into an
agreement with the Union on behalf of these employ-
ees.
Unless we are notified at once of the willingness of
a representative of the firm to meet with the Union to
commence negotiations, an unfair labor practice charge
will be filed with National Labor Relations Board and
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 While Machin testified that this visit occurred on December 30,
1991, I credit the mutually corroborative testimony of Feliciano and
Al Carpenito that the plant was closed the last 2 weeks of December
1991. Therefore, I conclude that the visit took place in early January
1992.
5 In past years, when Machin went to the shop, she would ask
Judy Carpenito for permission to speak to employees, and Carpenito
would routinely grant such permission without exception and without
conditions.
all other actions will be taken to the full extent of the
law.
Neither Krieger nor Respondent responded to the Strauss’
letter, and there was no further contact between the Union
and Respondent until after the contract expired on December
31, 1991. Respondent continued in force all terms and condi-
tions of employment contained in the contract until Decem-
ber 31, 1991, including the payments to the Union’s funds.
In that connection, Respondent made its final payment to the
Union’s fund on January 20, 1992, which under the terms of
the contract covered the month of December 1991.
In early January 1992, Machin went to Respondent’s facil-
ity.4 She spoke to Judy Carpenito and asked to speak to the
workers in the shop. Judy Carpenito replied that she had
been instructed by her father not to let Machin inside the
shop, because the shop was nonunion and the workers were
nonunion employees.5 Machin did not reply, and left the
premises.
She then reported the situation to George Benson, the
Union’s assistant district manager. He told Machin that he
would try to arrange a meeting with Carpenito, whom he
knew from prior dealings. Benson was able to set up such
a meeting for January 10, 1992. On that date, Benson and
Machin met with Al as scheduled. Benson and Carpenito
began by renewing their acquaintance and briefly discussing
their prior relationship. Benson then asked Carpenito what
was going on, adding that they never had a problem before.
Benson also asked if there was any economic reason or prob-
lem why he wouldn’t sit down with the Union and talk about
a contract. Carpenito replied that it wasn’t up to him, it was
up to his employees. Carpenito added that the employees do
not want the Union, and that he was not going to sign a con-
tract and lose all his people. Benson responded that the
Union had a contract with Respondent, and that it was obli-
gated to continue negotiations with the Union for a new
agreement. Carpenito continued to insist that his employees
did not want the Union, and asserted that his attorney had
sent a letter explaining Respondent’s position to the local of-
fice. Carpenito also informed Machin that he had no objec-
tions to her talking to the workers to see if they wanted to
become union members, but it had to be done away from the
premises and not during working hours.
There were no subsequent contacts between the parties
with respect to the matter of union recognition or bargaining.
As noted, Respondent made its last payment to the
Union’s funds on January 20, 1992, to cover December
1991. Thereafter, Respondent ceased payments into the
funds. Insofar as the record discloses, Respondent made no
other changes in terms and conditions of employment of its
employees.
On January 28, 1992, Respondent’s attorney sent to the
Region a statement of position in response to the Union’s
charge, which had been filed on December 16, 1991. The po-
sition made no reference to the fact that employees had spe-
cifically indicated to Respondent, through Feliciano or other-
wise, their desires as to union representation or union mem-
bership. The document relied on the fact that as of the date
the contract expired, Respondent did not employ any mem-
bers in the bargaining unit, as well as the fact that most of
Respondent’s workers were unskilled, nonnaturalized aliens
who resign prior to passing their probationary period. There-
fore, Respondent asserted that it had a good-faith doubt that
the Union represented a majority of its employees.
My findings above are based on my overall assessment of
the credibility of the witnesses, of whom I found Carpenito
to be most believable. He impressed me as a sincere small
businessman trying to run his business with the least possible
controversy, with absolutely no antagonism or animus to-
wards the Union. Indeed, the record reveals that he had a
long harmonious relationship with the Union when he was
associated with another company and, more importantly, he
voluntarily recognized the Union, as the representative of Re-
spondent’s employees, before he even had hired any employ-
ees.
In these circumstances, I find no basis for General Coun-
sel’s contention that the testimony of Feliciano and Carpenito
concerning the conversations with employees was contrived
or untruthful. I have considered the fact that the letters from
Respondent’s attorney to the Union and to the Region, con-
tain no reference to these conversations, but rely primarily on
the lack of union membership of employees as a basis for
the refusal to bargain. However, while the letters from Re-
spondent’s attorney should have been more carefully and ac-
curately worded, I believe that they do not substantially de-
tract from the credibility of Carpenito and Feliciano. I simply
do not believe that they would or could have made up the
story of employee dissatisfaction with the Union, as con-
tended by General Counsel.
On the other hand, I found Machin’s testimony to be often
vague, imprecise, and uncertain, and therefore I credit the
testimony of Carpenito and Feliciano where it conflicts with
that of Machin, particularly whether she visited the facility
on December 30, 1991, as she contends.
III. GENERAL COUNSEL’S MOTION TO REOPEN
THE RECORD
General Counsel filed a motion dated April 15, 1992,
along with its brief, requesting that the record be reopened
to include ‘‘newly discovered evidence.’’ General Counsel
seeks to introduce the brief filed by Respondent in a related
district court 10(j) proceeding, plus attached affidavits of Al
Carpenito and Manuel Feliciano. General Counsel asserts that
these affidavits plus a statement in the brief by its counsel,
contradicts and impeaches the testimony given by these wit-
nesses at the trial held before me on April 1, 1992. Since
General Counsel did not receive these documents until April
2, 1992, she argues that they constitute previously unavail-
able and newly discovered evidence.
However, Section 102.48(d)(1) of the Board’s Rules and
Regulations requires that for the evidence to be admissible,
a showing must be made that the evidence would require a
different result. See also Arthur Young & Co., 291 NLRB 39
fn. 1 (1988); Contemporary Guidance Services, 291 NLRB
50 fn. 2 (1988). Here as detailed below, as I have found that
205R.J.B. KNITS
6 While Respondent could also prevail if it established that the
Union did in fact lose its majority status, it is clear, and Respondent
does not argue otherwise, that this more stringent standard has not
been met.
Respondent has violated Section 8(a)(1) and (5) of the Act,
the introduction of such evidence would not require a dif-
ferent result. Moreover, I would add that because, as I out-
lined above, I found Carpenito and Feliciano to be extremely
candid and credible witnesses, even had I received the prof-
fered evidence, my credibility findings as set forth would not
be altered.
Accordingly, I shall deny General Counsel’s motion to re-
open the record, and shall not receive the documents in evi-
dence.
IV. ANALYSIS
Whether a union is certified or voluntarily recognized, it
enjoys a rebuttable presumption of majority status on the ex-
piration of a collective-bargaining agreement. Cobb Theatre,
260 NLRB 856, 859 (1982); Pioneer Inn Associates, 228
NLRB 1263 (1977), enfd. 578 F.2d 835 (9th Cir. 1978). Dur-
ing the terms of a collective-bargaining agreement, a union
enjoys an irrebuttable presumption of majority status. There-
fore, during the term of a collective-bargaining agreement, an
employer may not withdraw recognition from a union, nor
make unilateral changes in terms and conditions of employ-
ment of its employees. W. A. Krueger Co., 299 NLRB 914
(1990); Sisters of Mercy Hospital, 277 NLRB 1353, 1354
(1985). However, within a reasonable time prior to the expi-
ration of a collective-bargaining agreement, an employer can
lawfully announce to a union that it does not intend to nego-
tiate a new agreement, and rebut the presumption of majority
status, if it can demonstrate that on the date of withdrawal,
and in a context free of unfair labor practices, that the union
in fact has lost its majority status, or that the withdrawal was
predicated on a good-faith and reasonably grounded doubt,
supported by objective considerations, of the Union’s major-
ity status. Burger Pits, Inc., 273 NLRB 1001 (1984); Abbey
Rents, 264 NLRB 969 (1982). In such circumstances, an em-
ployer may then lawfully implement unilateral changes at the
expiration of the contract. Burger Pits, supra; Bennington
Iron Works, 267 NLRB 1285 (1985). It is important to em-
phasize that a showing of reasonably grounded doubt ‘‘re-
quires more than an employer’s mere assertion of it, and
more than proof of the employer’s subjective frame of mind.
The assertion must be supported by objective considerations,
that is, some substantial and reasonable grounds for believing
that the Union has lost its majority status.’’ United Super-
markets, 214 NLRB 958 (1974); Terrell Machine Co., 173
NLRB 1480 (1969), enfd. 422 F.2d 1088 (4th Cir. 1970);
Celanese Corp., 95 NLRB 664, 672 (1951).
In applying the above-cited principles to the instant case,
it is apparent that Respondent has during the term of the con-
tract, done nothing more than announce to the Union that it
will not bargain with it for a successor contract. Respondent
did not withdraw recognition from the Union at that time,
nor did it make any unilateral changes during the term of the
contract. While the complaint alleges an unlawful unilateral
change on December 30, 1991, by denying access to union
representatives, I have not credited Machin’s testimony that
she was denied access to employees on that date. Accord-
ingly, I shall recommend dismissal of that allegation of the
complaint. However, it is not in dispute that Respondent
made unilateral changes after the expiration of agreement by
ceasing to make payments to the Union’s funds, denying
union representatives access to employees, and by withdraw-
ing recognition from the Union as the collective-bargaining
representative of its employees. The legality of all of these
actions, as well as Respondent’s ‘‘anticipatory withdrawal of
recognition’’ in November 1991, is determined by whether
Respondent had a reasonably grounded doubt based on ob-
jective considerations of the Union’s majority status.6
The objective considerations that Respondent relies on to
support its assertion of a reasonably based doubt of the
union’s majority status, consists of the fact that none of the
employees were members of the Union, plus the statements
of all six employees related to Carpenito by employee Feli-
ciano, that these employees would rather quit than be forced
to join the Union or pay dues to the Union.
The fact that none of Respondent’s employees were in fact
union members provides no support for Respondent’s posi-
tion, particularly where as here most of them were still pro-
bationary employees, who may not have even been asked
about whether they desired union representation. Moreover,
new employees are presumed to support the Union in the
same ratio as the employees they replace. Colonna’s Ship-
yard, 293 NLRB 136 fn. 1 (1989); Pennex Aluminum Corp.,
288 NLRB 439 (1988). More significantly, it is well settled
that a showing that less than a majority of employees in the
unit are members of the union is not the equivalent of show-
ing a lack of majority support. ‘‘The theory behind this prin-
ciple is that no one can know with certainty how many em-
ployees who favor union representation do not become or re-
main members of the Union.’’ Pioneer Inn, supra at 1266;
NLRB v. Walkill Valley General Hospital, 866 F.2d 632, 637
(3d Cir. 1989); NLRB v. Gulfmont Hotel, 362 F.2d 588, 591
(5th Cir. 1966); NLRB v. North American Mfg. Co., 563 F.2d
894, 897 (8th Cir. 1977); NLRB v. Carmichael Construction
Co., 728 F.2d 1137, 1140 (8th Cir. 1984); Colonna’s Ship-
yard, supra at 140; Weathercraft Co., 282 NLRB 1127, 1129
(1987); Stratford Visiting Nurses Assn., 264 NLRB 1026
(1982). Accordingly, I conclude that Respondent cannot rely
on the absence of union membership of its employees to sup-
port its position that it had a reasonably grounded doubt of
the union’s majority status.
Respondent’s principal argument is, however, the state-
ments by the six unit employees, which were reported to
Carpenito by employee Feliciano. Before addressing the sub-
stance of the statements themselves, Respondent’s first and
significant problem in relying on such evidence is the source
of the information. The Board with court approval has con-
sistently attached little or no weight to reports of antiunion
sentiments from employees ‘‘to the extent that they purport
to convey the sentiments of employees other than them-
selves. Otherwise, a few antiunion employees could provide
the basis for a withdrawal of recognition when in fact there
is actually insufficient basis for doubting the Union’s contin-
ued majority.’’ Dalewood Rehabilitation Center, 224 NLRB
1618, 1619–1630 (1976); Alexander Linn Hospital Assn., 288
NLRB 103, 109 (1988). (‘‘The Board must view with sus-
picion and caution employee statements purporting to rep-
resent the views of other employees.’’ Accord: Louisiana Pa-
cific Corp., 283 NLRB 1079, 1080 (1987); Westbrook Bowl,
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
293 NLRB 1000, 1001 (1989), citing Sofco, Inc., 268 NLRB
159, 160 fn. 10 (1983), which stated that ‘‘testimony con-
cerning conversations directly with the employees involved
. . . is much more reliable than testimony concerning merely
a few employees ostensibly conveying the sentiments of their
fellows.’’ Larsen Supply Co., 289 NLRB 295 (1988)
(‘‘[u]nverified assertions of disenchantment conveyed to Re-
spondent secondhand are insufficient to establish a reason-
able good faith doubt of the Union’s majority status’’);
Bryan Memorial Hospital v. NLRB, 814 F.2d 1259, 1262
(8th Cir. 1987) (‘‘[u]nverified claims by employees that they
speak for others is not a sufficient basis for an employer’s
reasonable good faith doubt about union support where there
are no other reliable indicia of employee attitudes’’); Walkill
Valley, supra at 637 (the Board has held that hearsay on such
reliance on (statements by some bargaining unit employees
that a petition was supported by a majority) carries little
weight).
While the above authorities indicate that the Board sup-
ported by the courts looks with disfavor on an employer’s re-
liance on secondhand reports of employee dissatisfaction
with the union to establish good-faith doubt of majority sta-
tus, it does not rule out consideration of such evidence in ap-
propriate circumstances, where it is combined with other
more reliable indicia. Indeed, the Board has so found. U-
Save Food Warehouse, 271 NLRB 710, 717 (1984); Naylor,
Type Mats, 233 NLRB 105, 108 (1977); J&J Drainage
Products Co., 269 NLRB 1163, 1167, 1171 (1984).
It is highly questionable whether Respondent can rely on
the secondhand reports of Feliciano herein, since this evi-
dence forms the primary if not the sole basis for its assertion
of a good-faith doubt. The only authority that I have discov-
ered, which even remotely supports Respondent’s position is
J&J Drainage, supra, in which substantial reliance was
placed on statements made by a shop steward to management
that employees were not interested in the union. However,
since Feliciano was not a shop steward or otherwise an agent
of the Union, I find J&J Drainage, supra, to be distinguish-
able, even if it is still a viable case. I note in that connection
that subsequent cases have placed the continued vitality of
J&J Drainage in serious doubt. See Destileria Seralles, Inc.,
289 NLRB 51 (1988), in which the Board in distinguishing
J&J Drainage, specifically observed that it was not nec-
essarily agreeing with such case. See also Pioneer Press, 297
NLRB 972 (1990).
However, even if I were to permit Respondent to rely on
Feliciano’s secondhand reports to support its good-faith
doubt, I conclude that the statements themselves were insuf-
ficient for this purpose, even had they been made directly to
Carpenito by the employees. The remarks made by the em-
ployees that they would quit rather than join the Union or
pay dues are not much more significant than the fact that
they were not union members in the first place, which as I
have noted above does not establish that they do not wish
to be represented by the Union. Thus, ‘‘it is well established
that to support a reasonable doubt of Union majority support
employee expressions of anti-union sentiment must . . . con-
vey an intent not to be represented by the Union as distin-
guished from a desire not to become members for any of a
number of reasons or an inability or unwillingness to pay
dues.’’ Grand Lodge of Ohio, 233 NLRB 143, 144 (1977);
see also ACL Corp., 278 NLRB 474, 481 (1986); Pioneer
Inn Associates v. NLRB, 578 F.2d 835, 840 (9th Cir. 1978);
Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 490 (2d
Cir. 1975), Premium Foods v. NLRB, 709 F.2d 622, 631 (9th
Cir. 1983) (employees withdrawing from membership in the
union does not necessarily indicate that they no longer wish
to be represented by it); North American Mfg., supra (em-
ployee membership in or financial support of a union is not
an accurate gauge of union support); Colonna’s Shipyard,
supra at 139 (‘‘[n]either expressions of lack of interest in
union membership nor the number on dues check-off estab-
lishes a reasonable doubt of a union majority’’; Dalewood
Rehabilitation, supra at 1619 (a majority of employees voted
to deauthorize union shop authority and less than a majority
on checkoff, held insufficient to establish good-faith doubt.
‘‘No necessary correlation exists between union membership
and the number of union supporters.’’); Walkill Valley, supra
at 637 (‘‘[t]he issue is not how many employees belong to
the union or paid dues, but rather whether the majority de-
sired union representation for purposes of collective bargain-
ing’’).
Here, the statements made by the employees establish only
that they did not wish to become union members and/or to
pay union dues. Since the above authorities demonstrates that
such assertions do not establish that the employees are not
interested in being represented by the Union, Respondent’s
reliance on such statements do not meet its burden of sup-
porting its doubt of majority status by reasonably grounded
objective considerations.
The fallacy of Respondent’s position is exposed by
Carpenito’s own testimony. Thus, he testified that he felt that
the employees did not want the Union because they would
quit if he signed a contract with the Union. Carpenito’s be-
lief, even if sincere, that the employees did not want a union
is not determinative. His subjective frame of mind is not the
issue, but it is the objective considerations that form the be-
lief that is significant. United Supermarkets, supra; Celanese
supra. The fact is that the employees made no assertions
about their desires for union representation or whether Re-
spondent should bargain or sign a contract with the Union.
While Carpenito may have believed that he was required
to sign a new contract containing a union-security clause,
that is not so. It is well settled that the existence of a union-
security clause in previous contracts does not by itself obli-
gate the parties to include it in successive contracts. Tubari
Ltd., Inc., 299 NLRB Cook Bros. Enterprises, 288 NLRB
387, 388 (1988). Indeed, unlike other terms and conditions
of employment, such as payments into the funds and union
access to employees, the union security and checkoff clauses
do not automatically survive the contract, and an employer
is free to make unilateral changes in these items, even absent
an impasse in bargaining. Bethlehem Steel Co. 136 NLRB
1500, 1502 (1962), enf. denied on other grounds 320 F.2d
615 (3d Cir. 1963).
Therefore, while Carpenito may have feared that employ-
ees would quit, he could easily have allayed these fears by
simply bargaining with the Union and insisting on not in-
cluding a union-security clause in any contract that he signs
with the Union. Respondent did not do so, and chose to
refuse to enter into any bargaining with the Union.
Accordingly, I conclude that based on the foregoing, Re-
spondent by refusing to continue bargaining with and with-
207R.J.B. KNITS
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
drawing recognition from the Union, has violated Section
8(a)(1) and (5) of the Act.
It is also not disputed that after the contract expired, Re-
spondent denied the union representative access to its em-
ployees, in derogation of both past practice and the terms of
the collective-bargaining agreement. Such action is also vio-
lative of Section 8(a)(1) and (5) of the Act, and I so find.
Colonna’s Shipyard, supra at 141; Houston Coca-Cola Bot-
tling Co., 265 NLRB 766, 777–779 (2982).
Similarly, it is also admitted that Respondent, subsequent
to the expiration of the contract, ceased making contributions
to the Union’s funds. Since there was clearly no impasse,
waiver, or any other defense established, Respondent contin-
ues to be obligated to make such payments, and its failure
to do so violates Section 8(a)(1) and (5) of the Act.
Chemung Contracting Co., 291 NLRB 772, 725 (1988); Buck
Brown Contracting Co., 272 NLRB 851, 953 (1984).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 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. By refusing on and after October 2, 1991, to bargain
with the Union over the terms of a new collective-bargaining
agreement, and by withdrawing recognition from the Union
on and after January 1, 1992, as the exclusive majority rep-
resentative in an appropriate unit, Respondent has violated
Section 8(a)(1) and (5) of the Act.
4. By on and after January 1, 1992, denying union rep-
resentatives reasonable access to its premises and to its em-
ployees, and by unilaterally ceasing to make contributions to
the Union’s fringe benefit funds, Respondent has violated
Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act, as al-
leged in the complaint.
REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and desist
therefrom, and take certain affirmative action necessary to ef-
fectuate the policies of the Act. I shall recommend that Re-
spondent be ordered to make all fringe benefit contributions
as provided in the expired collective-bargaining agreement,
with the question of interest determined under the standards
set forth in Merryweather Optical Co., 240 NLRB 1213
(1979). It is also appropriate to recommend that Respondent
make whole the unit employees for any losses that they may
suffered from Respondent’s failure to make such contribu-
tions, in the manner set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1989), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest provided in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, R.J.B. Knits, Perth Amboy, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from, and refusing to bargain
collectively with, Local 149, International Ladies Garment
Workers Union, AFL–CIO, as the exclusive bargaining rep-
resentative of employees in the following appropriate unit:
All non-supervisory production, maintenance, packing,
shipping, and trucking employees employed by Re-
spondent, including regular and trial period employees,
but excluding office clerical and managerial employees,
guards and supervisors as defined in the Act.
(b) Denying agents and representatives of the Union, rea-
sonable access to the premises and its employees.
(c) Unilaterally ceasing to make contributions to the
Union’s fringe benefit funds as provided in the collective-
bargaining agreement between the parties which expired on
December 31, 1991.
(d) 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 bargain collectively with the Union as the
exclusive bargaining representative of its employees in the
aforesaid unit and, if an understanding is reached, embody
the same in a signed agreement.
(b) Make all fringe benefit contributions as provided in the
collective-bargaining agreement which expired on December
31, 1991, and make whole the unit employees in the manner
set forth in the remedy section of this decision by reimburs-
ing them with interest, for any losses they may have suffered
as a result of Respondent’s failure to make the various fund
contributions.
(c) Notify the Union in writing that its agents may have
access to Respondent’s premises and employees have been
restored pursuant to the terms of article XXI of its collective-
bargaining agreement which expired on December 31, 1991.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
208 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(e) Post at its facility in Perth Amboy, New Jersey, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees and members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.