Art's-Way Vessels, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 2010

355 N.L.R.B. 1142 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 192
1142
Art’s Way Vessels, Inc. and International Association
of Machinists and Aerospace Workers, AFL–
CIO. Case 33–CA–15771
September 22, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On December 23, 2009, Administrative Law Judge
Paul Bogas issued the attached decision. The Respon-
dent filed an exceptions brief.1
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 brief and has decided to affirm
the judge’s rulings, findings, and conclusions and to
adopt the recommended Order.
We agree with the judge’s rejection of the Respon-
dent’s 10(b) defense. We find that the Respondent’s
cessation of dues remittances in October 2007 did not put
the Union on notice that the Respondent had repudiated
the collective-bargaining agreement, or otherwise vio-
lated Section 8(a)(5) and (1). The cessation occurred not
because the Respondent repudiated the collective-
bargaining agreement or even the dues-deduction clause,
but because all the unit employees quit to work for their
former boss. Moreover, Union Business Representative
Wayne Laufenberg was aware that the Respondent had
lost its work force because the Respondent’s general
manager, E. W. Muehlhausen, called him for help find-
ing welders. Thus, the Union would have had no reason
to believe that the cessation of dues remittances consti-
tuted or reflected a repudiation of the collective-
bargaining agreement.
No unit employees sought to have the Respondent de-
duct dues until February 2008. The February 2008 dues-
deduction requests were made directly by the employees
to the Respondent, and there is no evidence that the Un-
ion was aware of the requests prior to September 2008.
Once these employees informed the Union in September
2008 that the Respondent would not make the deduc-
tions, Laufenberg immediately contacted the Respondent
and made several attempts to ascertain whether it was

1 The Respondent has excepted only to the judge’s rejection of its af-
firmative defenses that the charge was untimely under Sec. 10(b) of the
Act, and that the Respondent was relieved of its obligation to bargain
with the Union because another company was the Respondent’s “de
facto successor.” The Respondent has not otherwise excepted to the
judge’s findings that the Respondent violated Sec. 8(a)(5) and (1) by
withdrawing recognition from the Union, repudiating the collective-
bargaining agreement, and making unilateral changes to employees’
terms and conditions of employment.
repudiating the contract. After 6 months of unsuccessful
efforts to induce the Respondent to comply with the con-
tract, the Union filed the subject charges.
Given that the Respondent had no unit employees for a
time and had to rebuild its work force, and given, as the
judge states, that the Respondent is located in a “right to
work” state where it is unlawful to require payment of
dues or fees as a condition of employment, the Respon-
dent’s cessation of and failure to resume dues deduction
did not constitute an “open and obvious” sign of the Re-
spondent’s unlawful conduct. For the same reasons, the
Union’s failure to pursue the remittance of dues also
does not warrant finding that it was not reasonably dili-
gent. Broadway Volkswagen, 342 NLRB 1244, 1246
(2004), enfd. sub nom. East Bay Automotive Council v.
NLRB, 483 F.3d 628 (9th Cir. 2007). In this connection,
we observe that the Respondent does not argue that the
Union’s failure to visit the Respondent’s temporary facil-
ity constitutes a failure of due diligence. Accord: Com-
craft, Inc., 317 NLRB 550, 550 fn. 3 (1995). In any
event, we would find that the record is insufficient to
support such an argument because Muehlhausen refused
to tell Laufenberg the location of the temporary facil-
ity—a fact which, devoid of any explanation, establishes
that the Respondent hampered the Union’s efforts to dili-
gently represent the employees and militates against the
10(b) defense. Nursing Center at Vineland, 318 NLRB
337, 339 (1995).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Art’s Way Vessels, Inc., Du-
buque, Iowa, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

Deborah A. Fisher, Esq., for the General Counsel.
Kevin J. Visser, Esq. (Simmons Perrine Moyer Bergman, PLC),
of Cedar Rapids, Iowa, for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Peoria, Illinois, on September 21, 2009. The International
Association of Machinists and Aerospace Workers, AFL–CIO
(the Union or the Charging Party) filed the original charge on
March 5, 2009, and an amended charge on April 30, 2009. The
Regional Director for Subregion 33 of the National Labor Rela-
tions Board (the Board) issued the complaint on April 30, 2009.
The complaint alleges that Art’s Way Vessels, Inc. (the Re-
spondent) violated Section 8(a)(5) and (1) when it withdrew
recognition from the Union, ceased honoring the terms and
conditions of the collective-bargaining agreement (labor
agreement or contract) and made unilateral changes. The Re-
spondent filed a timely answer in which it denied committing
ART’S WAY VESSELS, INC. 1143
any violation of the National Labor Relations Act (the Act), and
also asserted multiple affirmative defenses. On the entire re-
cord, including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures steel tanks at
its facility in Dubuque, Iowa, where it annually sells and ships
goods valued in excess of $50,000 directly to points outside the
State of Iowa and annually purchases and receives goods val-
ued in excess of $50,000 directly from points outside the State
of Iowa. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Respondent ceased to recognize the Union and
honor the collective-bargaining agreement
The Respondent makes pressurized steel tanks that are used
to hold gases and liquids. It is located in Dubuque, Iowa, and is
a wholly-owned subsidiary of Art’s Way Manufacturing.1 On
January 25, 1995, when the Respondent’s facility was under
different ownership, the Union was certified as the collective-
bargaining representative for a unit of production and mainte-
nance employees working there.2 The Respondent took over
the facility in October 2005 when Art’s Way Manufacturing
purchased the assets of Vessel Systems, Inc. (VSI). At that
time, the Respondent recognized the Union as the bargaining
representative of its production and maintenance employees,
and honored the terms of the existing labor agreement between
the Union and VSI. That labor agreement expired in 2006, and
the Respondent and the Union entered into a new labor agree-
ment which, by its terms, was effective from August 16, 2006,
to August 15, 2009. As of the beginning of October 2007,
there were approximately 20 bargaining unit employees work-
ing for the Respondent.

In 2006 or 2007, the Respondent began to build a new, larger
facility to which it intended to relocate its operation. The new
facility was in Dubuque, just a few blocks from the original
location. The Respondent, which had been leasing the real
property where the original facility was located from the former
owners of VSI, gave notice that the Respondent would vacate
the premises as of October 2007. Subsequently, the Respon-
dent changed its mind and asked to extend its use of the loca-

1 Art’s-Way Manufacturing owns a number of other production op-
erations, but the Respondent is the only one of its companies that
manufactures steel pressure vessels and the only one located in Du-
buque, Iowa.
2 The bargaining unit is composed of:
All regular full-time and regular part-time production and mainte-
nance employees, excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act.
tion past October, but the owners of the property refused that
request. In October, while awaiting the completion of its new
permanent facility, the Respondent relocated its operations to a
temporary facility in Dubuque. Approximately 9 months later,
the Respondent moved into its permanent facility. The Re-
spondent removed all of the manufacturing equipment from the
original location and continued to use much of that equipment
in its operations.
Sometime after the October 2007 relocation and prior to the
expiration of the labor agreement, the Respondent ceased to
recognize the Union as the collective-bargaining representative
of unit employees. The date when the Respondent withdrew
recognition is hard to pinpoint since the Respondent never noti-
fied the Union of its action, either orally or in writing. Nor did
the Respondent assert to the Union that the Company believed
a majority of unit employees no longer wished to be repre-
sented. Indeed, Carrie Majeski, CEO and president of Art’s
Way Manufacturing, testified that the she did not know whether
or not the Union lacked majority support at the time the Re-
spondent withdrew recognition from the Union. After the Oc-
tober 2007 relocation and prior to the labor agreement’s August
2009 expiration date, the Respondent also ceased to honor the
terms of the labor agreement. Here again, the Respondent
failed to provide the Union with written or verbal notification
of its action.
Well before the expiration of the labor agreement in August
2009, the Respondent began making unilateral changes to em-
ployment terms covered by the agreement. The first of these
changes that is established by the record was made in August
2007—before the October 2007 time period when the Respon-
dent claims it withdrew recognition. The labor agreement pro-
vides that “Payday is every Friday,” but starting in August 2007
the Respondent unilaterally disregarded that requirement and
began paying unit employees on a biweekly, rather than a
weekly, basis.
After October 2007, and prior to the expiration of the labor
agreement, the Respondent made numerous, more significant,
unilateral changes to unit employees’ terms and conditions of
employment. These included changes to wages (including to
overtime pay), holidays, vacation, bereavement leave, accrual
of seniority, health insurance, dental insurance, prescription
coverage, short-term disability benefits, life insurance, and
retirement plans. At some point in time from late February to
March 1, 2009—still prior to the expiration date of the labor
agreement—the Respondent issued an employee handbook that
set forth terms of employment regarding, inter alia, attendance,
hours of work and overtime, wage administration, holidays,
personal leave, jury duty, bereavement leave, vacation, health
insurance, life insurance, short-term disability benefits, senior-
ity, and work rules/discipline. According to the Respondent,
the terms in the employee handbook superseded those in the
labor agreement. The Respondent also prepared a document,
dated March 1, 2009, which provided an overview of unit em-
ployees’ benefits. The Respondent did not give the Union no-
tice or an opportunity to bargain before making the changes or
issuing the employee handbook. Most, but not all, of the Re-
spondent’s unilateral changes diminished employees’ terms of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
employment below the levels that the parties agreed to in the
labor contract.
Regarding the unilateral changes individually referenced in
the complaint, the record shows the following. The labor
agreement provides that each unit employee will receive a 50-
cent-per-hour pay increase upon the completion of a 90-day
probationary period, and 25-cent-per-hour increases each cal-
endar quarter thereafter until reaching the maximum wage rate
for his or her job classification. By the fall of 2008, the Re-
spondent has ceased to provide these automatic raises. The
labor agreement provides that employees will receive overtime
pay if they work over 40 hours in a week or over 8 or 10 hours
on a particular day (depending on their schedule), but the Re-
spondent’s employee handbook limits overtime pay to employ-
ees who work over 40 hours in a week, regardless of how many
hours the employees work on a particular day. During the term
of the labor agreement, the Respondent unilaterally changed
providers for health insurance and dental insurance, and an-
nounced terms regarding, inter alia, employees’ deductibles and
share of premiums, that deviated from those previously pro-
vided under the labor agreement. The labor agreement provi-
sion regarding employees’ 401(k) plans provides that for every
quarter percent the employee contributes to the plan, the Re-
spondent will contribute 1 percent, up to a maximum Respon-
dent contribution of 4 percent. Under the terms that the Re-
spondent set forth in the employee handbook, however, the
Employer’s maximum required contribution is 1 percent, and
anything over that is at the Respondent’s discretion. In addi-
tion, the employee handbook limits participation in the Re-
spondent’s 401(k) contribution benefit to those employees who
work more than 1000 hours per year, whereas the labor agree-
ment does not contain that limitation. The employee handbook,
unlike the labor agreement, does not require that the employee
to contribute anything to the 401(k) plan in order to trigger a
contribution by the Respondent. The labor agreement provides
for a total of 11 paid holidays (8 identified holidays, plus 3
“floating” holidays to be chosen by the employee). Under the
employee handbook, the Respondent reduced this to a total of
10 paid holidays (9 identified holidays, plus 1 “floating” holi-
day), and imposed a new requirement that the employee work
the full day before, and the full day after, a holiday in order to
qualify for holiday pay. The Respondent’s employee handbook
also sets forth a different vacation benefit than is provided to
unit employees by the labor agreement. Depending on the em-
ployee’s years of service, the employee handbook in some in-
stances provides more, and in some instances fewer, vacation
days than the labor agreement.3
At some point after the Respondent relocated from the origi-
nal facility, it ceased to remit employees’ dues to the Union as
required by the labor agreement. On about February 27, 2008,
three of the Respondent’s production/maintenance employ-
ees—Robert Dolter, Jeff Henry, and David Tigges—signed

3 In addition to the unilateral changes specifically referenced in the
complaint, the record shows that the Respondent’s failure to honor the
labor agreement resulted in a number of other changes in terms and
conditions of employment. These included changes to unit employees’
short-term disability insurance and life insurance.
union “Membership Application and Check-Off Authorization”
cards which authorized the Respondent to deduct union dues
from their paychecks and forward the dues to the Union. The
employees submitted the union cards to the Respondent’s gen-
eral manager, and former president, E.W. (Swede) Muehl-
hausen. Muehlhausen sent these cards, by facsimile, to Marc
McConnell, the executive vice chairman of the board of Art’s
Way Manufacturing, along with a note stating: “Here are the
membership forms for the guys that are signing up for the un-
ion. I am assuming that the union dues are the same as they
were before.” Subsequently, Muehlhausen, Marc McConnell,
Ward McConnell (chairman of the board of Art’s Way Manu-
facturing), and Carrie Majeski (CEO and president of Art’s
Way Manufacturing) discussed how the Company should re-
spond to the union cards. After that discussion, the Respon-
dent chose not to honor the employees’ requests to have union
dues deducted from their pay.
Through the two relocations discussed above, the Respon-
dent has had the same name, ownership, and corporate struc-
ture. The Respondent has never been dissolved. It has re-
mained in the business of manufacturing pressurized steel
tanks, using substantially the same manufacturing equipment
and processes as it did at the original facility, and has continued
to employ individuals to perform bargaining unit work. The
Respondent serves the same types of customers as it did prior to
relocating in October 2007; however, since relocating it has not
supplied one customer—referred to in the record as “Vactor”—
that previously accounted for approximately 50 percent of the
Respondent’s business.
2. Employees meet with the union official in
late September 2008
Wayne Laufenberg is a business representative for the Un-
ion, District 6. He was the union negotiator for the labor
agreement between the Union and the Respondent and has been
the Union’s service representative for the bargaining unit since
1995. In September 2008, after the Respondent refused to
honor employees’ union cards, one of the employees contacted
Laufenberg by phone and asked how he could become a mem-
ber of the Union and what could be done about the Respon-
dent’s failure to adhere to certain labor agreement terms.
Laufenberg told the employee to “get some folks down to talk
to me about what was going on, so that I could get some infor-
mation about what was happening under the contract.” In late
September 2008, that employee and two others met with
Laufenberg to provide the information. Prior to receiving the
information from employees in September 2008, Laufenberg
was not aware that the Respondent had stopped paying union
dues and otherwise adhering to the labor agreement.4 Laufen-

4 I credit Laufenberg’s testimony that he was not previously aware
that the Respondent had ceased complying with the labor agreement.
That testimony was uncontradicted and facially credible. As discussed
above, the Respondent never notified Laufenberg or the Union that it
was withdrawing recognition from the Union or ceasing to honor the
labor agreement. Laufenberg testified that he services 27 collective-
bargaining agreements in six cities and does not monitor employer’s
compliance with their bargaining obligations unless “there is a call.”
He testified, without contradiction, that between October 2007 and
ART’S WAY VESSELS, INC. 1145
berg credibly testified that the Union had, at all relevant times,
been willing and able to represent the Respondent’s employees
in the bargaining unit. The Union has never disclaimed interest
in representing the Respondent’s unit employees.
In late September or early October 2008—within days after
the meeting with unit employees—Laufenberg met with the
Respondent’s plant manager, Patrick O’Neill, at the new facil-
ity. Laufenberg introduced himself to O’Neill as the service
representative for the Union and its labor agreement with the
Respondent. O’Neill reacted by telling Laufenberg that the
Respondent was a nonunion facility. Laufenberg responded: “I
beg to differ with you. I have contracts here that prove that this
is a union facility.” Laufenberg gave O’Neill copies of the
current labor agreement and asked him to distribute them to
employees and keep one for his own reference.
In October 2008, employees Dolter, Henry, and Tigges, each
signed a second “Membership Application and Check-Off Au-
thorization” card. Two other production/maintenance employ-
ees—Dustin DeMoss and Cody Walen—also signed such
cards. During this approximate time period, the Respondent
had a total of only seven employees performing bargaining unit
work. Later in October 2008, Laufenberg met with O’Neill at
the Respondent’s facility with the intent of presenting him with
the five signed union cards. However, when Laufenberg pre-
sented the cards, O’Neill refused to accept them. Instead,
O’Neill pushed the cards back to Laufenberg and said: “Why
don’t you just hang onto those for the time being. I am new
here, . . . I am just getting my feet wet.” O’Neill said he would
“get back” to Laufenberg about the union cards, but failed to do
so. In October and November 2008, and January 2009,
Laufenberg made repeated phone calls to O’Neill, but was un-
able to reach him. Laufenberg left messages requesting that
O’Neill return his calls, but neither O’Neill, nor anyone else
from the Respondent, contacted Laufenberg. In a June 4, 2009,
letter, Laufenberg informed the Respondent that the Union was
opening negotiations for a new labor agreement to replace the
one that was set to expire on August 15, 2009. The Respondent
has not responded to that letter.
B. Evidence Relating to Respondent’s de Facto
Successor Defense
The Respondent argues, as an affirmative defense, that the
Company was relieved of its bargaining obligation with respect
to the Union because another company, American Tank, was its
“de facto successor.” According to this argument, after the
Respondent relocated to the temporary facility in October 2007,
American Tank began operations at the original location and
triggered its own duty to recognize the Union and honor the
labor agreement between the Respondent and the Union. The

September 2008 none of the Respondent’s unit employees called for
assistance. In the absence of such a call he did not consider it neces-
sary to contact the Respondent because he knew that there was a bind-
ing labor agreement in place. Laufenberg also stated that he is not a
financial officer with the Union and, therefore, is not informed when an
employer remits, or does not remit, employees’ dues to the Union.
Moreover, he stated that Iowa is a “right-to-work” State where employ-
ees in the bargaining unit cannot be required to join the Union or agree
to have dues deducted from their paychecks.
Respondent contends that American Tank, by triggering such a
duty for itself, somehow relieved the Respondent of its own
duty to recognize the Union and honor the parties’ labor
agreement, even though the Respondent continued to operate as
the same corporate entity, engage in the same business, and
employ individuals to perform bargaining unit work. As is
discussed more fully below, I have concluded that this defense
is not viable as a matter of law, and, at trial, sustained the Gen-
eral Counsel’s objections to the admission of evidence relating
to it on the basis of relevance. For clarity’s sake, I summarize
the record evidence and Respondent’s offers of proof concern-
ing this defense.
When the Respondent commenced operations in 2005, it
hired one of VSI’s former owners, Mark Klausner, to serve as
the new company’s general manager. Klausner was also one of
two owners of the real property where the original facility was
located. The Respondent fired Klausner in July 2007. Subse-
quently, Klausner, and the other owner of the original location,
declined the Respondent’s request to extend the lease past the
date on which the Respondent had previously said it would
vacate the premises.
As the Respondent prepared to relocate to a temporary facil-
ity in October 2007, all of the incumbent bargaining unit em-
ployees resigned their employment. They did this despite being
offered continued employment by the Respondent at the new,
temporary, location. The Respondent immediately began seek-
ing replacements, and by the end of October had hired six em-
ployees, and in November hired two more. Although the Re-
spondent states that it had ceased to honor the labor agreement
by the time it made these hires, written employment offers that
it sent in October and November set forth wage rates and wage
increase schedules that were identical to those provided by the
labor agreement. By the fall of 2008, however, the Respondent
had ceased giving employees the automatic wage raises that
were promised by the letters offering employment and provided
for by the labor agreement.
Laufenberg was not involved in the exodus of union mem-
bers from the Respondent. He testified, credibly and without
contradiction that he first found out that large numbers of union
employees had left the Respondent when Muehlhausen (the
Respondent’s general manager) contacted him by phone and
asked for help hiring new welders. This contact occurred dur-
ing the period when the Respondent had relocated to a tempo-
rary facility, and after the unit employees had resigned their
employment with the Respondent. Laufenberg testified that he
was not able to be of much assistance to Muehlhausen because
the Union does not operate a hiring hall. However, Laufenberg
knew of one welder who had worked for the Respondent in the
past and was looking for work, and Laufenberg referred that
individual to the Respondent.
Majeski, the CEO and president of Art’s Way Manufactur-
ing, testified that after the Respondent left the original location,
Klausner began doing business from that location using the
name American Tank. According to Majeski, American Tank
is engaged in the same type of business as the Respondent. In
addition, Majeski asserted that Vactor, who had been the Re-
spondent’s largest customer prior to October 2007, became a
customer of American Tank. Majeski also stated that all of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
unit employees who had been working for the Respondent prior
to early October 2007 had gone to work for American Tank.
She knew this, she said, because she saw the personal vehicles
of the Respondent’s former employees parked outside the
American Tank facility. The Respondent offered an exhibit
consisting of payroll records from American Tank. According
to the Respondent’s counsel, those records showed that virtu-
ally every employee of American Tank had been an employee
of the Respondent immediately prior to early October 2007. I
sustained the General Counsel’s objection to the admission of
American Tank’s payroll records on the basis of relevancy
because those records did not relate to any issue other than the
Respondent’s legally untenable “de facto successor” defense.5
Majeski testified that, after the unit employees resigned in
about early October 2007, she ceased to adhere to the labor
agreement because “we did not feel we ha[d] a union anymore”
and “felt that the Union abandoned us.”
The Respondent subpoenaed Klausner to appear at the trial
in this matter, but Klausner did not appear. The Respondent
asked the General Counsel to seek enforcement of the subpoena
and requested that I adjourn the trial indefinitely while that was
done. Counsel for the General Counsel objected that Klaus-
ner’s testimony would relate only to the legally untenable de-
fense based on de facto successorship and stated that, even if
Klausner’s attendance was secured, the General Counsel would
object to the presentation of Klausner’s testimony on relevancy
grounds. Based on discussions at trial, I agree with the General
Counsel that any evidence the Respondent might elicit from
Klausner would, in fact, go exclusively to the de facto succes-
sor defense. Klausner had left the Respondent months before
any of the conduct at issue in this case and the Union does not
represent employees at Klausner’s new company. Therefore, I
declined to delay the proceedings in this case while the Re-
spondent sought to have the General Counsel seek enforcement
of the subpoena to Klausner.6
C. The Complaint Allegations
The complaint alleges that, since about September 5, 2008,
the Respondent has failed and refused to bargain collectively
and in good faith with the Union in violation of Section 8(a)(5)
and (1) by: failing to continue in effect all the terms and condi-
tions of the labor agreement which was to remain in effect from
August 16, 2006, to August 2009; unilaterally changing em-

5 I directed the court reporter to include the exhibit, R. Exh. 1, in a
rejected exhibit file. The court reporter did not create a separate re-
jected exhibits file, but rather included the rejected exhibit along with
the Respondent’s other exhibits and made a notation that it had been
rejected.
6 During the course of discussions with counsel at, and in prepara-
tion for, trial, the Respondent’s counsel made reference to ongoing
disputes between the Respondent and Klausner/American Tank. Those
discussions raised the specter that the Respondent was attempting to
use the instant proceedings as a means of obtaining discovery from
Klausner for use in unrelated disputes that the Respondent had with
Klausner and American Tank. However, I would have denied the
Respondent’s request for an indefinite adjournment based on the Gen-
eral Counsel’s valid objection that Klausner’s testimony was not rele-
vant, irrespective of my concerns about the Respondent’s possible
ulterior motives for seeking that testimony.
ployees’ contractual wages and quarterly wage increases; uni-
laterally changing employees’ health and dental insurance pro-
viders and benefits; unilaterally changing employees’ 401(k)
plan contributions and benefits; and unilaterally decreasing the
number of employees’ paid vacation days and paid holidays.
The complaint further alleges that, in about October or Novem-
ber 2008, the Respondent violated Section 8(a)(5) and (1) by
withdrawing recognition from the Union and failing and refus-
ing to recognize and bargain with the Union.
III. ANALYSIS AND DISCUSSION
A. During the Effective Period of the Collective-Bargaining
Agreement, the Respondent Withdrew Recognition from
the Union, Repudiated the Contract, and Made
Unilateral Changes to the Contractual Terms
It is a “long-established principle that a union enjoys an irre-
buttable presumption of majority support during the term of a
collective-bargaining agreement, up to three years.” Trailmo-
bile Trailer, LLC, 343 NLRB 95, 97 (2004); see also Auciello
Iron Works v. NLRB, 517 U.S. 781, 786 (1996); Spectrum
Health-Kent Community, 353 NLRB 996, 1000 (2009). There-
fore, an employer’s failure to recognize and bargain with a
union during that period is a per se violation of Section 8(a)(5)
and (1) of the Act, and an employer cannot use doubt about a
union’s majority status as a defense. Spectrum Health, supra;
Syscon International, Inc., 322 NLRB 539 fn. 1 (1996). It is
also well settled that “an employer violates Section 8(a)(5) and
(1) of the Act as elucidated in Section 8(d) of the Act,7 by
modifying a term of a collective-bargaining agreement without
the consent of the other party while the contract is in effect.”
Bonnell/Tredegar Industries, 313 NLRB 789, 790 (1994), enfd.
46 F.3d 339 (4th Cir. 1995); see also Public Service Co. of New
Mexico, 337 NLRB 193, 198 (2001).
In this case, the Respondent entered into a labor agreement
with the Union in 2006 and then, during the 3-year term of the
labor agreement, withdrew recognition from the Union, repudi-
ated the labor agreement, and made unilateral changes to em-
ployees’ terms and conditions of employment. The Respondent
does not dispute any of this. That would end the matter, but for
the fact that the Respondent interposes a number of affirmative
defenses. I discuss those affirmative defenses below.
B. Respondent’s Purported Defenses
In its answer posttrial brief, the Respondent forwards seven
separate affirmative defenses. These are: that the charge is
untimely; that the Respondent lawfully withdrew recognition
because the Union has lost the majority support of unit employ-
ees; that the Union is equitably estopped from alleging an un-
fair labor practices charge; that the Union has disclaimed inter-
est in representing the unit employees; that the Union has mate-
rially breached and/or repudiated the collective-bargaining
agreement; that the Union is unable or unwilling to represent
the unit employees; and that the Respondent is relieved of its
obligations to recognize the Union and adhere to the contract

7 Sec. 8(d) provides, in relevant part, that “the duty to bargain collec-
tively shall also mean that no party to such contract shall [unilaterally]
terminate or modify such contract.” 29 U.S.C. § 158(d).
ART’S WAY VESSELS, INC. 1147
because American Tank is the Respondent’s de facto successor.
For the reasons discussed below, the Respondent’s purported
defenses lack merit.
The Respondent argues that the allegations of wrongdoing
are timebarred because the Union filed its charge on March 5,
2009, more than 6 months after the Respondent withdrew rec-
ognition and repudiated the contract in October 2007 and,
therefore, beyond the time deadline set forth in Section 10(b) of
the Act. Section 10(b) states in relevant part: “[N]o complaint
shall issue based upon any unfair labor practice occurring more
than 6 months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom
such charge is made.” The 10(b) period does not begin to run
until the aggrieved party receives actual or constructive notice
of the conduct that constitutes the alleged unfair labor practice.
University Moving & Storage Co., 350 NLRB 6, 7, and 18
(2007); Concourse Nursing Home, 328 NLRB 692, 694 (1999).
The notice, “whether actual or constructive, must be clear and
unequivocal” to start the limitations period running. Salem
Electric Co., 331 NLRB 1575, 1576 (2000); Patsy Trucking,
297 NLRB 860, 862 (1990). It is well established that the party
asserting the 10(b) defense bears the burden of showing such
notice. Salem Electric Co., 331 NLRB at 1576; Carrier Corp.,
319 NLRB 184, 190 (1995); Leach Corp., 312 NLRB 990, 991
(1993), enfd. 54 F.3d 802 (D.C. Cir. 1995).
In this case, the Respondent, has not met its burden of show-
ing that, prior to the charge filing period, the Union had actual
or constructive notice that the Company was withdrawing rec-
ognition, repudiating the labor agreement, or unilaterally
changing unit employees’ contractual terms and conditions of
employment. Indeed, the Respondent admits that it never gave
the Union actual notice that it was taking these actions. Nor
has the Respondent shown that Union had “clear and unambi-
guous” constructive notice more than 6 months prior to the
filing of the charge. To the contrary, the record shows that
Laufenberg, the union official responsible for servicing the
labor agreement, was unaware of the Respondent’s conduct in
violation of Section 8(a)(5) until employees contacted him and,
in late September 2008, came to his office to provide informa-
tion about “what was going on” and “happening under the con-
tract.” Moreover, although the Respondent had made some of
its unilateral changes before September 2008, it was not until
some point during the time period from February to March 1,
2009—well within the 6-month period before the Union’s
March 5, 2009 charge—that the Respondent issued the em-
ployee handbook that superseded the entire labor agreement.
Even though it provided no notice to the Union, the Respon-
dent urges me to infer that the Union knew about the with-
drawal of recognition in October 2007 because the Company
has not remitted any union dues to the Union since that time.
This argument is not persuasive. First, the Board has found
that, for the purposes of determining timeliness, an employer’s
showing that it did not continue deducting union dues and re-
mitting them to a union is insufficient to meet the employer’s
affirmative burden of showing that the union had clear and
unambiguous notice of the employer’s refusal to recognize the
union. Stanford Realty Associates, 306 NLRB 1061, 1064–
1065 (1992). The Respondent’s argument on this score is even
less persuasive than it might otherwise be because, as Laufen-
berg testified, Iowa has a state “right-to-work” law, which pro-
vides that employees cannot be required to join a union, pay
union dues, or consent to paycheck deduction of union dues, as
a condition of employment. (Tr. 98); see also Iowa Code, Title
XVI, Chapter 731, Sections 731.4 and 731.5. Thus, even if
Laufenberg had discovered that the Respondent was no longer
remitting dues to the Union, that would not constitute unambi-
guous notice of withdrawal of recognition or repudiation of the
labor agreement because, inter alia, unit employees were not
required to join the Union or authorize that dues be deducted
from their paychecks. Cf. Trans-Lux Midwest Corp., 335
NLRB 230, 232 (2001) (Iowa is a right-to-work State and
therefore an employee’s failure to participate in dues checkoff
is not necessarily the same as lack of support for union repre-
sentation), enfd. 53 Fed. Appx. 571 (D.C. Cir. 2002).
For the reasons discussed above, I reject the Respondent’s
contention that the Union’s charge was untimely under Section
10(b).
The Respondent’s next affirmative defense is that it had a
good-faith basis for doubting that the Union had the support of
a majority of bargaining unit employees and, therefore, the
company was legally entitled to withdraw recognition from the
Union. This argument is frivolous. The Board has long held
that a union enjoys an irrebutable presumption of majority sup-
port during the first 3 years of a collective-bargaining agree-
ment. Auciello Iron Works v. NLRB, supra; Spectrum Health,
supra; Trailmobile, LLC, supra. Thus, even assuming the Re-
spondent had a reasonable basis for believing the Respondent
had lost majority support, it is perfectly clear that the Respon-
dent could not lawfully withdraw recognition when it did—i.e.,
prior to the August 15, 2009 expiration of the labor agreement
which came at the 3-year mark. It is disappointing that the
Respondent’s counsel continues to press this argument without
even mentioning the dispositive precedent establishing an irre-
butable presumption of continued majority support, especially
since the existence of the presumption was discussed during the
trial. (Tr. 13 and 76.) The Respondent’s insistence on continu-
ing to press this defense is even more disappointing given that,
presumptions aside, the Respondent did not show that it be-
lieved that the Union lacked the support of the majority of em-
ployees. Majeski—the only management official who testi-
fied—stated that she did not know whether or not the Union
lacked majority support at the time she withdrew recognition.
Indeed, the record shows that five of the approximately seven
employees performing bargaining unit work signed union au-
thorization cards and that the Union presented those cards to
the Respondent. In conclusion, the Respondent’s defense that it
lawfully withdrew recognition based on a reasonable belief that
the Union had lost majority support is frivolous as a matter of
both law and fact.
The Respondent also contends that the Union is equitably es-
topped from pursuing an unfair labor practices charge against
the Company. According to the Respondent’s brief, equitable
estoppel applies because, in October 2007, all of its “bargaining
unit employees, and by extention, the [Union], chose to associ-
ate with American Tank and effectively disassociate with [the
Respondent]” and that the Union “presumably benefited from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
this decision and cannot use the same facts and circumstances
to allege an unfair labor practice.” For a statement of the prin-
ciples of equitable estoppel the Respondent cites the decision in
Red Coats, Inc., in which the Board noted that:

The gist of equitable estoppel is that a party who has by his
statements or conduct, asserted a claim based on the assump-
tion of the truth of certain facts, whereby he has obtained a
benefit from another party, cannot later assert that those facts
are not true if thereby the other party will be prejudiced.

328 NLRB 205, 206 (1999), quoting Principles of Equity,
McClintock at 80 (2d ed. 1948).
The principles of equitable estoppel, as set forth by the
Board in Red Coats, simply have no application to the present
situation and the Respondent’s attempt to force this case into
the equitable estoppel framework results in an argument that is,
at best, nonsensical. What is the prior “claim” that the Union
has asserted and on which it has already “obtained a benefit”
from the Respondent? What are the “certain facts” that the
Union relied on in making that claim? How has the Union
changed its position and “assert[ed] that those facts are not
true” in this proceeding?8 What prejudice to the Respondent
has resulted from any change the Union has made in its position
regarding “certain facts”? None of these questions are an-
swered by the Respondent, nor, I am confident, can they be
answered in any coherent way. Not only does the Respondent’s
argument have nothing to do with the principles of equitable
estoppel, but that argument is based on a farfetched and unsup-
ported assertion of fact. The Respondent asserts that the Union
“benefited” when unit employees left the Respondent to work
for American Tank. However, the Respondent does not even
attempt to explain how the Union could possibly have benefited
from the decision of a group of mostly dues-paying members to
leave the Respondent’s bargaining unit and go to work for an
employer with whom the Union has no bargaining relationship.
At any rate, the resignation decisions of unit employees, who
were not agents of the Union, cannot be attributed to the Union
Indeed, the Union did not have authority to require that unit
employees who wished to go to work for another employer,
instead remain with the Respondent against their wills.9 The
Respondent’s argument based on equitable estoppel is com-
pletely frivolous.
The Respondent’s fourth affirmative defense is that the Un-
ion “disclaimed interest” in representing the unit employees.
This contention is contrary to the evidence. Laufenberg testi-
fied, credibly and without contradiction, that the Union had
never disclaimed interest in representing the Respondent’s em-
ployees. The Respondent seems to be arguing that, even
though the Union never expressly disclaimed interest, it con-
structively disclaimed interest through inattention to the bar-
gaining unit from October 2007 to March 2009. It is not clear

8 Indeed, the Respondent’s argument, which is summarized above, is
that the Union is relying on the “same facts,” not a denial of facts pre-
viously asserted.
9 This is especially true in this case, since Iowa State law provides
that no person “shall be deprived of the right to work at his chosen
occupation for any employer because of membership in, [or] affiliation
with . . . any labor union.” Iowa Code, Title XVI, Ch. 731, Sec. 731.1.
whether the Respondent’s theory is that the Union, through a
lack of action, manifested an intent to disclaim interest or
whether its theory is that the representation provided was so
deficient as to disqualify the Union from continuing to serve as
bargaining representative irrespective of any intention on its
part to disclaim. At any rate, the Respondent cites no authority,
and I am unaware of none, for the proposition that a union may
be found to have constructively disclaimed interest under either
theory.
Even assuming that it might be possible in certain circum-
stances to find a disclaimer based entirely on a union’s inaction,
these are not those circumstances. During the relevant time
period, the Union had a labor agreement with the Respondent
that was still in its midterm. The Union was not shown to have
ignored requests from unit employees for assistance or action
and certainly was not shown to have ignored such requests so
pervasively as to suggest that the Union had lost interest in
representing unit employees. To the contrary, the evidence
shows that the Union acted quickly in its capacity as bargaining
representative when called upon to do so. From October 2007,
until September 2008, the Union was not contacted by unit
employees to take action on their behalf. As soon as a unit
employee contacted the Union in September 2008 to request
assistance, Laufenberg arranged a meeting with a group of unit
employees to explore their concerns. Within days of that
meeting, Laufenberg visited the Respondent’s facility and met
with O’Neill, the plant manager, to discuss concerns raised by
the discussions with unit employees. When Muehlhausen, the
Respondent’s general manager, contacted Laufenberg to refer
welders, Laufenberg referred a welder who had experience with
the Respondent. I note, moreover, that the Respondent clearly
did not rely on the purported disclaimer of interest at the time it
claims to have withdrawn recognition, since the Respondent
states that it withdrew recognition in October 2007, at a time
when there had been no significant period of union inaction.
The Respondent’s defense that its actions were lawful because
the Union had disclaimed interest in representing unit employ-
ees is frivolous.
The next defense that the Respondent forwards is that the
Union materially breached and repudiated the contract. The
Respondent cites Electrical Workers Local 1113 v. NLRB, for
the general principle that “one party to a contract need not per-
form if the other party refuses in a material respect to do so.”
223 F.2d 338, 341 (D.C. Cir. 1955), cert. denied, 350 U.S. 981
(1956). The problem with this argument is that the Respondent
does not point to a single provision in the labor agreement that
the Union has refused to comply with. The Respondent appears
to be suggesting that there was a breach because the Union did
not somehow force individuals who had been performing bar-
gaining unit work to remain with the Respondent against their
wills, or because the Union failed to ensure that the Respondent
had a full complement of unit employees. However, the Union
did not agree to do either of those things in the labor contract,
and has not been shown to have repudiated or breached the
ART’S WAY VESSELS, INC. 1149
contract in a material way. As with the Respondent’s other
affirmative defenses, this one is frivolous.10
The next affirmative defense that the Respondent asserts is
that the Union is defunct. The Board has stated:

[A] representative is defunct, and its contract is not a bar, if it
is unable or unwilling to represent the employees. However,
mere temporary inability to function does not constitute de-
functness; nor is the loss of all members in the unit the
equivalent of defunctness if the representative otherwise con-
tinues in existence and is willing and able to represent the
employees.

Kent Corp., 272 NLRB 735 (1984), quoting Hershey Chocolate
Corp., 121 NLRB 901, 911 (1958). The decision about a labor
organization’s willingness and ability to represent employees is
made “regardless of the relative inactivity of a labor organiza-
tion.” Kent, 272 NLRB at 736.
In cases applying the above-stated standards, the Board has
placed an extraordinarily high burden on those attempting to
establish that a union is defunct. For example, in Kent Corp.,
supra, the Board considered a situation where a labor organiza-
tion had “no . . . members; no membership applications; no
initiation fees; no dues; no treasury; no bank account; no books
or records, meetings, or recent (if any) election of officers; and
no information available to employees regarding . . . contract
negotiations or attempts to enforce the collective-bargaining
agreement.” 272 NLRB at 735–736. Even under those ex-
treme circumstances, the Board refused to find that the labor
organization was defunct because an organization official had
testified that the organization was willing to continue to repre-
sent the unit employees, and because there was no evidence that
the organization “was called on and failed to act on unit em-
ployees’ behalf.”11 In another case, the employer’s defense that

10 Under the heading of its repudiation/material breach defense, the
Respondent also argues that the Company was entitled to withdraw
recognition based on the fact that there was a period of less than a
month in October 2007 when it employed one or fewer individuals in
the bargaining unit. Although the Respondent attempts to shoe horn
this argument into one of its existing affirmative defenses, the defense
is clearly new. The Respondent’s assertion of this affirmative defense
is untimely because it was not alleged by the Respondent in its answer,
and cannot be raised for the first time in a posttrial brief. SEIU United
Healthcare Workers-West, 350 NLRB 284 fn. 1 (2007), enfd. 574 F.3d
1213 (9th Cir. 2009). At any rate, the fact that an employer has one or
fewer unit employees for a brief period of time does not entitle it to
withdraw recognition. Galicks, Inc., 354 NLRB No. 39, slip op. at 5
(2009). In order for such a defense to succeed the employer must
show that it had a “stable” unit of one employee or less. Id. A period
of 15 months during which an employer’s complement of unit employ-
ees dropped to one or fewer individuals has been found insufficient to
make out this defense. Id. In the instant case, the Respondent’s com-
plement of unit employees dropped to one or below in early October
2007, but the Respondent immediately began seeking new employees
and by the end of that same month it had hired six new employees.
Under these circumstances the Respondent has fallen far short of show-
ing that it ever had a stable unit of one employee or less. Therefore,
even if this defense had been timely raised, it would fail on the merits.
11 Incredibly, Kent Corp., supra, is one of the two cases that the Re-
spondent relies on as precedent to support its defunctness defense. In
the union was defunct was rejected even though the union was
inactive with respect to the particular bargaining unit involved,
because the evidence showed that the union had actively repre-
sented employees of other employers with whom it had con-
tracts. Syscon International, Inc., 322 NLRB at 543.
The Respondent’s contention that the Union at issue here is
defunct lacks any reasonable basis. As in Kent Corp., supra, a
union official (in this case Laufenberg) credibly testified that
the Union was willing and able to represent employees of the
Respondent, and the record contains no evidence that the Union
was called on and failed to act on unit employees’ behalf. In-
deed, as discussed above in reference to the Respondent’s dis-
claimer of interest defense, when one of the Respondent’s unit
employees contacted Laufenberg to complain about the Re-
spondent’s conduct, Laufenberg immediately set up a meeting
to explore employee concerns, and then Laufenberg approached
the Respondent about those concerns. In addition, Laufen-
berg’s testimony indicated that he had been actively represent-
ing employees of other employers with whom the Union had
contracts. The Respondent’s evidence in this case does not
even begin to support an affirmative defense that the Union is
defunct.
The Respondent’s seventh, and final, affirmative defense is
that in October 2007, it was relieved of its obligations with
respect to the Union because another company—American
Tank—became its de facto successor. This argument is not
viable as a matter of law. To begin with, it is doubtful that
American Tank is subject to any successorship obligations at all
in this case. The Board has found that successorship is gener-
ally found “in the context of two categories of cases: (1) those
in which the employer has purchased all or part of the prede-
cessor employer’s business; and (2) those in which the em-
ployer has succeeded the predecessor employer on a contract
for the performance of services.” Harter Tomato Products Co.,
321 NLRB 901, 902 (1996) (footnotes omitted), enfd. 133 F.3d
934 (D.C. Cir. 1998). In this case, American Tank did not pur-
chase, directly or indirectly, any part of the Respondent’s busi-
ness, nor did it succeed the Respondent on a contract for the
performance of services. The record indicates that American
Tank is the Respondent’s current competitor and adversary, not
its successor.
Even if I were to assume that American Tank somehow trig-
gered a bargaining responsibility for itself, I find that the Re-
spondent has failed to show that that would relieve the Respon-
dent of its own obligation to recognize the Union and honor the
labor agreement that the Respondent had entered into. The
Respondent did not dissolve as a corporation, or go into a dif-
ferent line of business, at any time since American Tank came
into existence. Rather, the Respondent continued as the same
corporate entity, engaged in the same business, under the same
name and ownership. It continued to use essentially the same
equipment, employ individuals to do the same type of unit
work, and serve the same type of customers, as it had prior to
October 2007. Therefore, the Respondent continued to have all

the other case, Hershey Chocolate Corp., the Board did not reach the
question of whether the union was defunct. 121 NLRB at 911.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
of its obligations with respect to the Union, the unit employees,
and the labor agreement.
During off-the-record discussions with counsel for the Re-
spondent, I requested legal support for its contention that the
Respondent would be relieved of its bargaining obligations if
American Tank was found to have triggered a bargaining obli-
gation with respect to persons who came to work for it after
leaving the Respondent. I mentioned this issue to Respondent’s
counsel again at trial. (Tr. 77–78.) However, the Respondent
has failed to cite any authority, or even articulate a coherent
legal theory, on this issue. Decisions of the Board support the
view that, contrary to the Respondent’s contention, even when
a successor employer has an obligation to bargain with the
predecessor’s union, the predecessor employer may retain its
own bargaining obligation with respect to remaining business
for which it employs persons to perform bargaining unit work.
See, e.g., Bronx Health Plan, 326 NLRB 810, 810–813 (1998)
(predecessor that continued in business had its own bargaining
relationship with the union, even though its successor was
found to have a bargaining obligation with respect to one group
of employees), enfd. mem. 203 F.3d 51 (D.C. Cir. 1999); Con-
tee Sand & Gravel Co., 274 NLRB 574, 587 (1985) (“the col-
lective-bargaining agreement applies to Calan and Tycon [two
partial successors] as well as to Contee Sand [the predeces-
sor]”); Miami Industrial Trucks, Inc., 221 NLRB 1223, 1224–
1225 (1975) (Board modifies certification of representation to
provide that union represents employees of both the successor
and the predecessor); see also Mason City Dressed Beef, 231
NLRB 735, 745–747 (1977) (a predecessor has two successors,
and each successor has a bargaining obligation), enf. granted in
part, denied in part sub nom. Packing House & Industrial Ser-
vices, 590 F.2d 688 (8th Cir. 1978). I find that the Respon-
dent’s de facto successor defense is without merit.
For the reasons discussed above, all of the Respondent’s af-
firmative defenses are invalid. Therefore, the Respondent’s
withdrawal of recognition, refusal to bargain, repudiation of the
labor agreement, and unilateral changes to contractual terms of
employment, all violated the Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union has, at all times relevant to this action, been the
exclusive bargaining representative of Respondent’s employees
in the following unit:

All regular full-time and regular part-time production and
maintenance employees, excluding office clerical employees,
professional employees, guards and supervisors as defined in
the Act.

4. The Respondent has failed and refused to bargain collec-
tively and in good faith with the Union in violation of Section
8(a)(5) and (1) by: withdrawing recognition from the Union;
failing and refusing to recognize and bargain with the Union;
repudiating, and failing to continue in effect terms of, the col-
lective-bargaining agreement during the term of that agreement;
unilaterally changing employees’ contractual wages and quar-
terly wage increases; unilaterally changing employees’ contrac-
tual health and dental insurance; unilaterally changing employ-
ees’ contractual 401(k) plan contributions and benefits; and
unilaterally changing employees’ contractual vacation and
holiday benefits.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I recommend that the
Respondent be required to place in effect all terms of the col-
lective-bargaining agreement that went into effect on August
16, 2006, and maintain those terms in effect until the parties
have bargained to agreement or a valid impasse, or the Union
has consented to changes. In addition, I recommend that the
Respondent be ordered to make whole the unit employees and
former unit employees for any loss of benefits they suffered as
a result of the Respondent’s unlawful alteration of their terms
and conditions of employment, as set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). I also recommend that the
Respondent be ordered to reimburse the Union, with interest,
for any dues that, under the collective-bargaining agreement,
the Respondent was required, but failed, to withhold and remit
to the Union since September 5, 2008.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Art’s Way Vessels, Inc., Dubuque, Iowa,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the International
Association of Machinists and Aerospace Workers, Local
Lodge 1238, District 6, AFL–CIO as the collective-bargaining
representative of the Respondent’s employees in the following
appropriate unit concerning terms and conditions of employ-
ment:

All regular full-time and regular part-time production and
maintenance employees, excluding office clerical employees,
professional employees, guards and supervisors as defined in
the Act.

(b) Repudiating or refusing to adhere to the collective-
bargaining agreement that the Respondent entered into with the
Union on September 18, 2006.
(c) Making unilateral changes to employees’ terms and con-
ditions of employment during the term of a collective-
bargaining agreement without the consent of the Union.

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
ART’S WAY VESSELS, INC. 1151
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request of the Union, adhere to the collective-
bargaining agreement that went into effect on August 16, 2006,
give effect to its terms retroactive to August 16, 2006, and con-
tinue those terms and conditions until such time as the parties
complete a new agreement, good-faith bargaining leads to a
valid impasse, or the Union consents to changes.
(b) Upon request of the Union, rescind any unilateral
changes to the terms and conditions of employment of unit
employees that were made without the consent of the Union
during the term of the collective-bargaining agreement when
such terms and conditions were subjects covered by the collec-
tive-bargaining agreement.
(c) Recognize the Union as the exclusive representative of
employees in the bargaining unit.
(d) Make whole employees and former employees, with in-
terest, for any and all losses of wages and benefits suffered
since September 5, 2008, as a result of the Respondent’s repu-
diation of, and refusal to adhere to, the collective-bargaining
agreement reached with the Union on September 18, 2006.
(e) Reimburse the Union, with interest, for any dues that, un-
der the collective-bargaining agreement, the Respondent was
required, but failed, to withhold and remit to the Union since
September 5, 2008.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Subregion, post at its
facility in Dubuque, Iowa, copies of the attached notice marked
“Appendix.”13 Copies of the notice, on forms provided by the
Regional Director for Subregion 33, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time during the period
beginning on September 5, 2008.

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(h) Within 21 days after service by the Subregion, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Subregion attesting to the
steps that the Respondent has 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 violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT refuse to recognize and bargain with the Inter-
national Association of Machinists and Aerospace Workers,
Local Lodge 1238, District 6, AFL–CIO (the Union) as the
collective bargaining representative of our employees in the
bargaining unit composed of full-time and regular part-time
production and maintenance employees.
WE WILL NOT repudiate or refuse to adhere to the collective-
bargaining agreement that we entered into with the Union on
September 18, 2006.
WE WILL NOT make unilateral changes to the terms and con-
ditions of employment of our employees in the bargaining unit
during the term of a collective-bargaining agreement without
the consent of the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request of the Union, adhere to the collective-
bargaining agreement that went into effect on August 16, 2006,
and give effect to its terms retroactive to August 16, 2006, and
continue those terms and conditions until such time as the par-
ties complete a new agreement, good-faith bargaining leads to a
valid impasse, or the Union consents to changes.
WE WILL, on request of the Union, rescind any unilateral
changes to the terms and conditions of our bargaining unit em-
ployees made without the consent of the Union during the term
of the collective-bargaining agreement when such terms and
conditions were subjects covered by the collective-bargaining
agreement.
WE WILL recognize the Union as the collective-bargaining
representative of our employees in the bargaining unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
WE WILL make you whole, with interest, for any and all
losses of wages and benefits suffered since September 5, 2008,
as a result of our repudiation of, and refusal to adhere to, the
collective-bargaining agreement reached with the Union on
September 18, 2006.
WE WILL reimburse the Union, with interest, for any dues
that, under the collective-bargaining agreement, the Respondent
was required, but failed, to withhold and remit to the Union
since September 5, 2008.

ART’S WAY VESSELS, INC.