Nott Company, Equipment Division

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 396 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 23
396
Nott Company, Equipment Division and International
Union of Operating Engineers, Local 49. Case
18–CA–15056
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Upon a charge filed on November 13, 1998, against
Nott Company, Equipment Division (Respondent), the
General Counsel of the National Labor Relations Board
issued a complaint and notice of hearing on August 6,
1999. The complaint alleges that the Respondent vio-
lated Section 8(a)(1) by prohibiting union discussion
among employees during worktime. The complaint also
alleges that the Respondent violated Section 8(a)(5) and
(1) by: failing and refusing both to comply with the col-
lective-bargaining agreement and to recognize and bar-
gain with the Union; withdrawing recognition from the
Union and repudiating the collective-bargaining agree-
ment; prohibiting union business agents from gaining
access to the Respondent’s facility or speaking to em-
ployees during worktime; and announcing employee re-
strictions on talking.
On March 17, 2000, the Respondent, the Charging
Party, and the General Counsel jointly filed a Stipulation
of Fact, with attached exhibits, and a request that the case
be transferred to the Board for its consideration. The
parties stipulated that the charge, the complaint and no-
tice of hearing, and the answer, together with the Stipula-
tion and referenced exhibits, constitute the entire record
in this proceeding, and that no oral testimony is neces-
sary or desired by any party. The parties further stipu-
lated that they waived a hearing before an administrative
law judge, the making of findings of fact and conclusions
of law by an administrative law judge, and the issuance
of a decision by an administrative law judge, and that
they desired to submit this case directly to the Board for
findings of fact, conclusions of law, and the issuance of a
decision and order by the Board.
On June 30, 2000, the Board issued an order approving
the Stipulation and transferring the proceeding to the
Board. Thereafter, the parties executed a Supplemental
Stipulation of Fact (answering certain questions raised by
the Board’s Order) and filed briefs.
On the basis of the record and the briefs, the National
Labor Relations Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Minnesota
corporation, with an office and place of business in
Bloomington, Minnesota, has been engaged in the distri-
bution and repair of forklifts. During the calendar year
ending December 31, 1998, the Respondent, in conduct-
ing its business operations, purchased and received, at its
Bloomington, Minnesota facility goods valued in excess
of $50,000 directly from points located outside the State
of Minnesota. At all material times, the Respondent has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. At all
material times, the Charging Party (or Union) has been a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
The Respondent is engaged in the sale, rental and ser-
vice of forklifts, and was, until recently, the exclusive
Minnesota franchise dealer for Hyster Forklift products.
The Respondent and the Union have had a 40-year col-
lective-bargaining relationship. The most recent contract
between the parties was effective from August 1, 1996
through July 31, 2000.
The bargaining unit consists of employees, including
field and shop mechanics, employed by the Respondent
at its Bloomington facility and at other permanent shops
and field-mechanic resident locations in Minnesota.1 On
April 1, 1998,2 the Union represented, in a single unit,
the Respondent’s 27 shop and field service mechanics
employed at four locations (Bloomington, Duluth,
Hibbing and St. Cloud).
On July 16, the Respondent lost the Hyster franchise.
On October 1, the Respondent purchased the assets of
Metro Forklifts (Metro) in Maple Grove, Minnesota.
Metro owned the Nissan Forklift franchise. At the time
of this asset purchase, the Respondent’s work force had
declined to 14 employees. Metro also employed 14 shop
and field service employees, who were unrepresented.
Historically, Metro’s employees performed the same
type of work as the Respondent’s unit employees. At the
time of the acquisition, the Respondent intended to con-
tinue operating the Maple Grove facility as a separate
facility of Nott Company.

1 The parties stipulated that the appropriate bargaining unit is:
All full-time and regular part-time employees, including working
foreman, field journeymen, shop journeymen, equipment delivery
employees, service trainees, periodic maintenance/tire press persons
and mechanic helpers, employed by Respondent at 171 West 79th
Street, Minneapolis, Minnesota, and other permanent shops and field
mechanic resident locations in the State of Minnesota; excluding of-
fice clerical employees, guards and supervisors as defined in the Act.
The parties further stipulated that the unit address of “171 W. 79th
Street, Minneapolis” is the “Bloomington facility” referred to herein.
2 All dates are in 1998 unless noted.
NOTT CO. 397
On October 2, the 14 Metro employees became the
Respondent’s employees. On October 5, two of the four
former Metro shop mechanics were transferred from Ma-
ple Grove to Bloomington. On or about October 12,
Metro’s dispatch operation (which is nonunit work) was
transferred from Maple Grove to Bloomington. After
October 12, all field mechanics, who work in the field
and report to the Respondent’s facilities only to obtain
parts or for administrative reasons,3 were dispatched
from the Bloomington facility, regardless of whether
they were employed out of Bloomington or Maple
Grove. On October 26, the remaining two former Metro
shop mechanics were transferred to Bloomington. On
November 2, the Respondent closed the Maple Grove
facility and consolidated the entire operation at Bloom-
ington.
At no time since November 2 has the Union demon-
strated majority support among the employees in the
consolidated unit. In November, the Respondent with-
drew recognition from the Union as representative for its
employees in the unit and has failed and refused to honor
the contract with the Union.
On November 13, two union business representatives
attempted to enter the Bloomington facility to distribute
copies of the union contract to the former Metro employ-
ees. The Respondent’s division manager denied them
access, but accepted the copies to forward to the shop
steward. Subsequently, the Respondent’s service man-
ager met with the business representatives, and, citing the
Respondent’s no-solicitation policy, told them that they
would not be permitted to enter the facility and meet with
employees during worktime. Later that day, the Respon-
dent’s managers met with the union steward, gave him
the copies of the contract, and told him not to engage in
union discussions with either set of employees (preexist-
ing Nott or former Metro employees) during worktime.
They further told him that the former Metro employees
were from a purchased company and had nothing to do
with the Union. Prior to this, the Respondent had al-
lowed the Union reasonable access to its facilities and
employees, and had allowed employees to discuss the
Union during worktime. The Union was not advised of
these changes prior to November 13. These deviations
from past practice constitute unilateral changes in terms
and conditions of employment, and would be unlawful if
the Union was the lawful representative of unit employ-
ees on November 13.

3 Field mechanics needing parts for Hyster forklifts obtained them
from Bloomington. Similarly, field mechanics needing parts for Nissan
forklifts obtained them from Maple Grove.
B. Issue
The parties stipulated that the issue is:
whether Respondent’s withdrawal of recognition of the
Union is permissible because the Union lost majority
status once the former Metro employees were em-
ployed at the Bloomington location.
The General Counsel and the Charging Party acknowledge
that, if the Respondent’s withdrawal of recognition did not
violate the Act, then the unilateral changes that occurred on
November 13 were not unlawful because the Union no
longer had 9(a) status. Moreover, if the Respondent’s with-
drawal of recognition was not unlawful, the General Coun-
sel and the Charging Party do not request a remedy for the
8(a)(1) violation alleged in complaint paragraph 5.4
C. The Parties’ Arguments
1. General Counsel and Charging Party
The General Counsel and the Charging Party argue
that contract-bar and “expansion of unit” principles gov-
ern this case. They argue that Board precedent estab-
lishes the principle that, if previously represented em-
ployees constitute a substantial percentage of the unit
following a consolidation with unrepresented employees,
and if there is otherwise a substantial continuity in the
operations, a collective-bargaining agreement must re-
main in effect, at least when no other union has advanced
a claim to represent the employees at the facility.5 They
further argue that the requisite factors exist in this case.6
It follows that, because the contract operates as a bar, the
Respondent violated Section 8(a)(5) by repudiating the

4 Par. 5 alleges that the Respondent violated the Act on November
13 by interfering with, restraining, and coercing an employee in the
exercise of his Sec. 7 rights by prohibiting union discussions among
employees during worktime.
5 In support of this principle, the General Counsel and the Charging
Party cite General Extrusion Co., 121 NLRB 1165 (1958), and Bow-
man Dairy Co., 123 NLRB 707 (1959). In General Extrusion, the
Board held that a merger of operations which does not result in the
creation of a new operation, major personnel changes, or a change in
the character of the jobs, will not remove a contract as a bar. The con-
tract is a bar if, at the time the contract was signed, the regular em-
ployee complement in the bargaining unit was at least 30 percent of the
regular employee complement at the time of the hearing on an election
petition, and at least 50 percent of the job classifications in existence at
the time of the hearing were in existence when the contract was signed.
In Bowman Dairy, the employer purchased another dairy business
whose 31 employees, formerly Teamsters-represented, were consoli-
dated with the employer’s preacquisition work force of 26 Dairy Work-
ers-represented employees. The Board found that the Dairy Workers
contract covered both sets of employees under the 30/50 percent Gen-
eral Extrusion rule.
6 Here, after the acquisition of Metro’s assets, the union-represented
employees constituted at least 30 percent of the new employee com-
plement, and the Respondent’s job classifications and operations re-
mained virtually unchanged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD398
contract and withdrawing recognition. Citing Marine
Optical, Inc., 255 NLRB 1241 (1981), enfd. 671 F.2d 11
(1st Cir. 1982), the General Counsel and the Charging
Party argue that finding otherwise allows an employer to
do unilaterally that which the employees in the bargain-
ing unit (through a decertification petition) or a rival un-
ion (through a certification petition) cannot do. As a
matter of policy, they argue that applying contract-bar
principles promotes industrial stability while ensuring
employee free choice at reasonable intervals.
According to the General Counsel and the Charging
Party, the Respondent attempts to capitalize on the fact
that its work force was temporarily low, and that the ac-
quisition of a new franchise required an infusion of new
employees. They argue that, because this was a purchase
of assets, the Respondent was not required to hire any
Metro employees. They further argue that, if the Re-
spondent had hired previously unrepresented employees
off the street, there would be no question that both the
bargaining relationship and the contract would continue
in full force and effect, even if the newly hired, previ-
ously unrepresented employees outnumbered the incum-
bent, represented bargaining unit employees. In their
view, these newly hired Nott Company employees are
indistinguishable from other new hires that are presumed
to support the Union in the same proportion as existing
employees.7
As a factual matter, the General Counsel and the
Charging Party emphasize both what this case is—and
what, in their view, it is not. It is, they say, an employer
changing franchises during a contract term and after-
wards operating in the same location with the same num-
ber of employees performing the same tasks they had
always performed. It is not an employer purchasing a
competitor to expand its operations, or a union attempt-
ing to apply the contract to an employer’s new facility or
operation. Thus, this case involves an employer’s pur-
chase of assets to restore its historical business and the
restoration of a bargaining unit to traditional levels.
As a legal and/or policy matter, the General Counsel
and the Charging Party emphasize that the Board places
a high value on stability in bargaining relationships, es-
pecially during the life of a contract. This is evidenced,
they argue, by the fact that the Board has required con-
tinued recognition of a union in certain situations even
where majority status has been lost. They cite certain
“relocation” cases where the Board has held that an em-
ployer who relocates and transfers the entire bargaining
unit must still recognize the union and apply the existing

7 See NLRB v. Hondo Drilling Co., N.S.L., 525 F.2d 864 (5th Cir.
1976), cert. denied 429 U.S. 987 (1976); John S. Swift Co., 133 NLRB
185 (1961), enfd. 302 F.2d 342 (7th Cir. 1962).
contract if the transferees from the closed facility consti-
tute at least 40 percent of the new facility’s employee
complement.8 They also cite a “subcontracting” case
where the Board, without making a specific finding of
majority status, held that an employer, who had subcon-
tracted and resumed bargaining unit operations within
the same contract term, was bound to recognize and bar-
gain with the union as to newly hired employees.9
The General Counsel and the Charging Party argue
that the precedent cited by the Respondent is inapposite.
They note that in Geo. V. Hamilton, Inc., 289 NLRB
1335 (1988), and Central Soya Co., 281 NLRB 1308
(1986), affd. 867 F.2d 1245 (10th Cir. 1988), an accre-
tion analysis was applied after the employer purchased
an ongoing entity and transferred employees and opera-
tions to the purchased entity’s location. They argue that
the “defining distinction” between those cases and this
one is that, here, there has been no change in the Re-
spondent’s operations and no continuity of the purchased
entity’s (Metro’s) operations. They also argue that Ren-
aissance Center Partnership, 239 NLRB 1247 (1979), is
distinguishable because there a contract had not been
executed (thus contract-bar principles were not impli-
cated), and also because the operations had been ex-
panded. Finally, they argue that J.R. Simplot Co., 311
NLRB 572 (1993), enfd. 33 F.3d 58 (9th Cir. 1994), cert.
denied 513 U.S. 1147 (1995), contrary to the Respon-
dent’s view, supports their argument that majority status
is not necessary to require continued recognition.10
With respect to the alleged 8(a)(1) violations, the Gen-
eral Counsel and the Charging Party argue that an em-

8 See Harte & Co., 278 NLRB 947 (1986); Rock Bottom Stores, Inc.,
312 NRLB 400 (1993), enfd. 51 F.3d 366 (2d Cir. 1995); Westwood
Import Co., 251 NLRB 1213 (1980), enfd. 681 F.2d 664 (9th Cir.
1982).
9 F & A Food Sales, Inc., 325 NLRB 513 (1998), enfd. 202 F.3d
1258 (10th Cir. 2000).
10 The Stipulation states: “At no time since the date of the transfer
of Metro employees . . . has the Union demonstrated majority support
among the employees in the consolidated unit.” The General Counsel’s
brief states its “position that . . . the Union never enjoyed majority
status among Respondent’s employees since the final transfer of the
former Metro employees. . . .” Despite this, the Union asserts that the
Board could find that the Union maintained majority status because the
Metro employees were transferred in three phases to Nott’s Blooming-
ton facility during October. The Union argues that, to the extent that
the former Metro employees had any separate identity from the Nott
employees, that identity was destroyed as each group was transferred.
Thus, majority status was at all times maintained because, at the time
each group was transferred, there were more employees in the existing
bargaining unit than those being transferred on that date. It is well
established, however, that the General Counsel’s theory of the case is
controlling, and that a charging party cannot enlarge upon or change the
General Counsel’s theory. Zurn/N.E.P.C.O., 329 NLRB 484 (1999),
citing Kimtruss Corp., 305 NLRB 710 (1991). Accordingly, we do not
pass on the validity of the Charging Party’s theory.
NOTT CO. 399
ployer violates the Act by unilaterally imposing restric-
tions on a union’s access to the employer’s facility and
employees during worktime.11 They also argue that an
employer violates the Act when, contrary to past prac-
tice, it unilaterally prohibits a union steward or other
employee from discussing the union with other employ-
ees during worktime.12 They conclude that the Respon-
dent here, having done both, violated Section 8(a)(1).
2. Respondent
The Respondent argues that accretion and majority
status principles govern this case. Specifically, the Re-
spondent argues that accretion principles apply when
there is a consolidation of operations and a transfer of
employees between one historically represented unit and
one historically nonrepresented unit. The Respondent
further argues that where the union, as here, does not
have a clear majority, a valid accretion cannot occur, and
an employer is no longer obligated to continue to recog-
nize and bargain with the union.
The Respondent maintains that the following three
cases establish the governing legal principles: (1) Cen-
tral Soya Co., above, where the unrepresented group of
employees sought to be accreted was smaller than the
represented existing group, (2) Geo. V. Hamilton, Inc.,
above, where the unrepresented and represented groups
of employees were equal in number, and (3) Renaissance
Center Partnership, above, where the unrepresented
group outnumbered the represented group. In Central
Soya, the Board accreted the unrepresented group into
the larger represented group, and held that the employer
was obligated to continue to deal with the union. Con-
versely, in both Geo. V. Hamilton and Renaissance Cen-
ter, the Board refused to find an accretion and to extend
the bargaining obligation. The Respondent argues that
this trilogy of cases stands for the proposition that there
cannot be a valid accretion where the group of employees
sought to be accreted is equal or larger in number than
the number of represented employees in the existing bar-
gaining unit.
The Respondent also argues that contract-bar princi-
ples and accretion principles serve different ends. Ac-
cording to the Respondent, contract-bar rules do not ap-
ply here because this is not a dispute between competing
unions seeking the right to represent the unit and because
there is no representation petition. Thus, the Respondent

11 See Control Services, 303 NLRB 481, 486 (1991), enfd. 961 F.2d
1568 and 975 F.2d 1551 (3d Cir. 1992); Associated Services for the
Blind, 299 NLRB 1150, 1168 (1990); Torrington Extend-A-Care Em-
ployees Assn. v. NLRB, 17 F.3d 580, 595 (2d Cir. 1994).
12 See Timken Co., 331 NLRB 744 (2000); General Fabrications
Corp., 328 NLRB 1114 (1999), enfd. 222 F.3d 218 (6th Cir. 2000);
Hausner Hard-Chrome of KY, Inc., 326 NLRB 426 (1998).
argues, General Extrusion Co., 121 NLRB 1165 (1958),
and Bowman Dairy Co., 123 NLRB 707 (1959), are dis-
tinguishable on their facts. Even assuming similar facts,
the Respondent contends that General Extrusion carved
out an exception to the general contract-bar rule; namely,
a contract is not a bar where the contract is executed
prior to a substantial increase in personnel or if major
changes occurred in the operation. Finally, the Respon-
dent argues that Harte and Co., 278 NLRB 947 (1986),
is distinguishable because it is a relocation case.
D. Analysis and Conclusions
Having carefully considered the record, we conclude
that an accretion analysis is appropriate. That is, the is-
sue is whether a new group of employees is to be added
to an extant unit without any consideration of the desires
of those new employees. As discussed infra, we would
not do so in this case. Further, in view of this conclu-
sion, and in light of the fact that the previously repre-
sented employees are no longer a majority in the new
overall unit, we conclude that there is no bargaining ob-
ligation in that unit.
We recognize that, in some accretion cases, a party
seeks to add a new group of employees to an extant unit
of union-represented employees. In such cases, there is
no question as to the union’s representation of the previ-
ously extant unit. There is only a question as to the new
employees. By contrast, in the instant case, the Respon-
dent challenges the majority status of the entire unit.
However, the Board applies the accretion analysis in that
situation as well.13 For example, in Renaissance Center,
unrepresented employees of one employer were added to
the represented employees of another employer. The
Board found no accretion, and ordered an election among
all of the employees.
Applying accretion principles to the instant facts, we
conclude, as discussed below, that the Respondent did
not violate Section 8(a)(5) when it withdrew recognition
from the Union. This is because, as the parties stipu-
lated, the Union lost majority status once the former
Metro employees were employed at the Bloomington
location. It follows, as the General Counsel and the
Charging Party acknowledge, that the unilateral changes
that occurred on November 13 were not unlawful be-
cause the Union no longer had Section 9(a) status.
An accretion analysis is ordinarily applied in situations
involving consolidation of a represented group with an
unrepresented group. Special Machine & Engineering,
282 NLRB 1410 (1987); J.R. Simplot Co., 311 NLRB

13 Geo. V. Hamilton, Inc., 289 NLRB 1335 (1988); Renaissance
Center Partnership, 239 NLRB 1247 (1979); Central Soya Co., 281
NLRB 1308 (1986), affd. 867 F.2d 1245 (10th Cir. 1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD400
572, 587, fn. 83 (1993), enfd. 33 F.3d 58 (9th Cir. 1994),
cert. denied 513 U.S. 1147 (1995) (where there is
“merger” of employee complements from two former
plants, accretion principles apply, “requiring a ‘majority’
analysis, rather than a ‘substantial percentage’ analysis”).
Here, there can be no doubt that the new employees
(former Metro employees) share common interests with
members of the existing bargaining unit. The parties
stipulated that they do exactly the same work at the same
locations. It is equally clear (and also stipulated) that
this case involves the consolidation of a represented
group with an unrepresented group. Thus, this case must
be considered within an accretion framework.
The Board has followed a restrictive policy in regard
to accretion because it forecloses the employees’ basic
right to select their bargaining representative. Towne
Ford Sales, 270 NLRB 311 (1984), affd. 759 F.2d 1477
(9th Cir. 1985). The Board has stated that it will not,
“under the guise of accretion, compel a group of employ-
ees . . . to be included in an overall unit without allowing
those employees the opportunity of expressing their pref-
erence in a secret election. . . .” Melbet Jewelry Co., Inc.
(Retail Clerks, Local 212), 180 NLRB 107, 110 (1969).
Recent cases continue to adhere to this restrictive ap-
proach to accretions. Gulf Caribe Maritime, Inc., 330
NLRB 766 (2000); ATS Acquisition Corp., 321 NLRB
712, 713 fn. 6 (1996), enfd. 127 F.3d 1105 (9th Cir.
1997); Compact Video Services, 284 NLRB 117, 119
(1987).
Under that restrictive policy, there is no accretion un-
der the instant facts. This is because the unrepresented
group sought to be accreted is equal in number to the
existing represented group (14 former Metro employees
versus 14 existing Nott employees). As correctly noted
by the Respondent, the Board has refused to “accrete” a
larger or equal number of employees into a smaller certi-
fied unit when the case involves a group of preexisting
employees with a separate history of representation or
nonrepresentation. Geo. V. Hamilton, Inc., above; Ren-
aissance Center Partnership, above; Massachusetts Elec-
tric Co., 248 NLRB 155, 157 fn. 8 (1980). Those cases
govern the instant case, where there is an equal number
of represented and unrepresented employees with sepa-
rate representational histories.
Geo. V. Hamilton, Inc., 289 NLRB 1335 (1988), is
similar to this case. In Geo. V. Hamilton, the union rep-
resented Hamilton’s two warehouse employees. One
worked in the Hamilton warehouse; the other worked in
a nearby commercial warehouse where Hamilton rented
space. Hamilton formed CMD, Inc. (found by the Board
to be a single employer with Hamilton), which bought
the commercial warehouse and hired the two employees
working there (making a total of three at this warehouse).
Hamilton continued renting space at the CMD ware-
house, and the one Hamilton and two CMD employees
began working together at the CMD warehouse without
regard to space boundaries. Hamilton later laid off the
Hamilton employee working in the CMD warehouse.
The union filed a grievance arguing that the two CMD
warehouse employees should be considered part of the
warehouse bargaining unit (and covered by the contract),
and thus laid off ahead of the Hamilton employee who
held greater seniority. The complaint alleged, in perti-
nent part, that the respondent had refused to recognize
and bargain with the union as the exclusive representa-
tive of the warehouse employees at both locations, and
had further refused to apply the terms of the contract to
the CMD employees.
The Board held that the respondent neither unlawfully
refused to recognize and bargain with the union, nor
unlawfully refused to apply the contract to a unit of
warehouse employees covering both facilities. Citing
Central Soya Co., 281 NLRB 1308 (1986), the Board
reasoned that the two-employee unrepresented CMD
group did not constitute an accretion to the previously
represented two-employee Hamilton group. The Board
noted the full operational integration of the warehouse
operations, but found that the “crucial factor” in finding
an accretion in Central Soya—union majority status—
was not present. In so finding, the Board stated: “to find
an accretion, even when the two groups in question are
of approximately equal size, there must be a showing . . .
that the employees in the represented group outnumber
the employees in the unrepresented group.” The Board
then expressly overruled Public Service Co. of New
Hampshire, 190 NLRB 350 (1971), discussed in Central
Soya, which had allowed an accretion of a group of un-
represented employees to a group, equal in number, of
represented employees.
Because, in Geo. V. Hamilton, there could be no accre-
tion, the Board further held that the respondent was not
obligated to bargain with the union or to apply the con-
tract terms to a combined unit of warehouse employees.
Moreover, the respondent was no longer obligated to
bargain with the union regarding the Hamilton employ-
ees. Citing Abbott-Northwestern Hospital, 274 NLRB
1063 (1985), and Renaissance Center Partnership,
above, the Board found that a unit of only Hamilton em-
ployees ceased to be an appropriate unit when the Hamil-
ton and CMD warehouse functions became integrated;
that, after the integration, the only appropriate unit was
an overall unit comprised of all warehouse employees;
that a question of representation existed in the overall
unit; and that, accordingly, the Respondent was no longer
NOTT CO. 401
obligated to bargain with the union about the Hamilton
employees. In sum, the Board held that an employer is
not obligated to continue to recognize and bargain with a
union as the exclusive bargaining representative of one
group of employees when that represented group is
merged with an unrepresented group in such a manner
that an accretion cannot be found and the original repre-
sented group is no longer identifiable.
Here, as in Geo. V. Hamilton, there is an integration of
functions and work forces, but because the unrepresented
and represented groups of employees are equal in num-
ber, there can be no accretion. Where there is an integra-
tion, but no accretion, an employer is not obligated to
continue to bargain with the union, even as to an existing
group of employees. Thus, consistent with Geo. V. Ham-
ilton and Abbott-Northwestern Hospital, we find that the
Respondent did not violate the Act when it withdrew
recognition from the Union.
As discussed above, we have relied on three cases to
support our position. Our dissenting colleague says that
there are “flaws” in those precedents, and these “flaws
. . . have found a home in the majority opinion.” In re-
sponse, we note at the outset that the three cases repre-
sent Board law that goes as far back as 26 years. And,
the one case that was judicially tested was affirmed. No
party seeks the reversal of this precedent. In all of these
circumstances, we would not reach out to reverse the
precedent sua sponte.
In addition, the precedent is sound. There is a distinc-
tion between the instant case and (1) cases involving a
mere relocation,14 (2) cases involving a turnover of em-
ployees,15 and (3) cases involving a temporary shutdown
and then reopening at the same location.16 In the reloca-
tion situation, the old facility (unionized) is “simply re-
moved to a new site.”17 In the turnover situation, there
has been normal turnover, and the Board is not willing to
presume that the new employees are opposed to union
representation. In the last situation, there has only been a
temporary hiatus in operations. By contrast, the instant
case involves the entrepreneurial decision to buy a com-
pany, retain the employees, and consolidate them at the
prior location.18 In such circumstances, the unit itself has
undergone a substantial change. And, in such circum-
stances, the numbers cannot be ignored. Absent a Gen-

14 Harte & Co., 278 NLRB 947 (1986).
15 Cutten Supermarket, 220 NLRB 507 (1975).
16 El Torito–La Fiesta Restaurants, 295 NLRB 493 (1989), enfd.
929 F.2d 490 (9th Cir. 1991).
17 Harte & Co., above, at 948.
18 The case therefore involves more than the movement of employ-
ees. Thus, contrary to our dissenting colleague, the case does not turn
on the direction of a move, i.e., whether employees go from place A to
place B or vice-versa.
eral Counsel showing that the union represented a major-
ity in that unit, there is no obligation to recognize that
union. Nor does the existence of the contract require a
different result. As noted, the unit itself has changed.
Although a contract will bar a question concerning repre-
sentation (qcr) in the same unit, it will not bar a qcr in a
different unit.
Finally, although industrial stability is an important
policy goal, it can be trumped by the statutory policy of
employee free choice. That policy is expressly in the
Act, and indeed lies at the heart of the Act. In the cir-
cumstances of this case, we adhere to that policy.
Our dissenting colleague says that the Board applies
“different rules . . . depending on what [a] transaction is
called.” We believe that there are real distinctions be-
tween different transactions, and these differences call
for different results. The law is often called upon to ar-
ticulate real distinctions requiring different results. Thus,
where a unit of employees is simply moved from one
location to another, there may be no reason to question
the majority status of the union. Similarly, where there is
ordinary turnover of employees, at a given location, there
are policy reasons for not permitting that fact to give rise
to a question concerning representation. But where a
new group of unrepresented employees is added whole-
sale to an extant unit (e.g., through a purchase of a busi-
ness), and that new group is equal to or outnumber the
extant group, there is a real basis for raising a question as
to whether the union is the majority choice in the new
unit.
Many of the cases cited by the General Counsel and/or
the Charging Party in support of their contract-bar theory
involve facts markedly different from those presented
here. Contrary to their suggestion, this case does not
involve a mere expansion or enlargement of existing op-
erations requiring the hiring of new employees. Rather,
it involves the addition of a new group with a history of
separateness. See Meyer’s Café & Konditorei, 282
NLRB 1 fn. 1 (1986). Moreover, the core issue in Gen-
eral Extrusion Co., 121 NLRB 1165 (1958), was whether
a substantial and representative employee complement
had been reached at the time the contract had been exe-
cuted. That case effectively codified, in an expanding
unit situation, the minimum sized work force and number
of job classifications which must exist at the time a con-
tract is signed before that contract can bar a petition.
That issue is not presented by this case.
The other cases relied upon by the General Counsel
and the Charging Party are also inapposite. In ABF
Freight System, Inc., 325 NLRB 546 (1998), the Board
distinguished General Extrusion, above, Kroger Co., 155
NLRB 546 (1965), and Martin Marietta Co., 270 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD402
821 (1984), on the basis that they involved competing
interests between two unions. Bowman Dairy Co., 123
NLRB 707 (1959), likewise involved a conflict between
two bargaining representatives. Public Service Co. of
New Hampshire, 190 NLRB 350 (1971), one of the few
cases following Bowman since it issued in 1959, has
been overruled.19 Harte & Co., 278 NLRB 947 (1986),
involved a relocation situation, another factual scenario
not presented here.
In sum, this case requires that a balance be struck be-
tween the implicit statutory policy of stability in bargain-
ing relationships and the express Section 7 rights of em-
ployees both to choose their own bargaining representa-
tive or to refrain from collective bargaining altogether.
Indeed, in refusing to accrete a numerically larger group
into an existing certified unit, the Board has expressed
caution precisely “because it would deprive the larger
group of employees of their statutory right to select their
own bargaining representative,” a right which the Board
characterized as a “fundamental precept of the Act,” not
to be improperly discounted. Renaissance Center Part-
nership, 239 NLRB at 1247–1248. Similarly, where, as
here, the number of new, previously unrepresented em-
ployees equals the number of existing bargaining unit
employees, the balance tilts in favor of the employees’
express statutory right of free choice.
Accordingly, given the instant facts and the Board’s
restrictive approach to accretions, there can be no accre-
tion here, and no attendant duty to bargain. Because the
Respondent has not violated the Act by withdrawing rec-
ognition under the circumstances presented here (and
because of the parties’ stipulations regarding the other
complaint allegations if the Respondent were not found
to have unlawfully withdrawn recognition), the com-
plaint is dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent’s withdrawal of recognition from
the Charging Party and repudiation of the collective-

19 In fact, in Public Service Co. of New Hampshire, above at 351,
Chairman Miller, stated in a strong dissent:
The Bowman case does not seem to me to have given proper recog-
nition to the interests of the added employees, and its holding has not
been followed in subsequent cases, at least where the added employ-
ees have been represented by another labor organization. . . . Nor do
I believe it should be followed where the moved employees are at
least as numerous as the employees they join, and have in the past
been unrepresented. (Emphasis added).
bargaining agreement did not violate Section 8(a)(5) and
(1) of the Act.
4. The Respondent has not otherwise violated the Act.
On these findings of fact and conclusions of law, and
on the entire record, the Board issues the following
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
Inevitably perhaps, over the course of nearly 70 years,
the Board’s decisions have sometimes collided with each
other. Layer upon layer of doctrines interpreting the Act
have evolved, with inconsistencies sometimes emerging
and often unexplained. There is likely no area of the law
more snarled than that defining an employer’s continuing
duty to maintain an established bargaining relationship
after some business transaction occurs. Different rules
may be applied depending on what the transaction is
called, with distinctions supported by little real analysis.
Given our volatile business climate, the opportunities for
clashing doctrines are rife. Compounding the difficulty
is the underlying statutory tension between the Act’s
basic purpose of stabilizing labor relations (as announced
by the 1935 enactment) and its sometimes competing
purpose of preserving employee free choice (as an-
nounced by the 1947 Taft-Hartley amendments). This
case puts the confusion in bold relief.
The employer here withdrew recognition of the union
at midterm of their agreement, claiming that the union
did not retain the support of a majority of unit employ-
ees, after a newly-hired group of formerly unrepresented
workers joined the bargaining unit. The majority vali-
dates that withdrawal of recognition, describing the
transaction as a “consolidation” (and not, for example, an
“expansion” of existing operations or a “relocation”) and
invoking the Act’s protection of employee free choice.
But it never seriously seeks to reconcile competing doc-
trines or explains why it ignores well-established princi-
ples, under which unions enjoy a conclusive presumption
of majority support during the term of a collective-
bargaining agreement, a doctrine designed to balance the
competing statutory policies.
Rather, the majority perpetuates an aberration in Board
precedent: that an employer may—under the guise of a
“consolidation” of employees, which affects neither the
bargaining unit’s work nor the employer’s business op-
eration—abrogate its collective-bargaining agreement
and strip its employees of the union representation they
have freely chosen by statutory right. Extolling the vir-
tues of employee free choice, the majority advances em-
ployer free choice, permitting the Respondent unilater-
NOTT CO. 403
ally to withdraw recognition even without an election.1
Had the case turned on what actually happened with this
work force, and not on pigeonholing the transaction, the
outcome would be otherwise. The decision would pre-
serve workplace stability without sacrificing employee
free choice.
I. THE CONCLUSIVE PRESUMPTION OF MAJORITY
STATUS AND THE CONTRACT-BAR DOCTRINE
The legal principles that properly should control this
case are well established. In Auciello Iron Works, Inc. v.
NLRB, 517 U.S. 781 (1996), a unanimous Supreme Court
endorsed the Board’s policy affording unions a conclu-
sive presumption of majority status during the term of a
collective-bargaining agreement. Id. at 785–786. As the
Court explained, the presumption is not based on any
certainty that the union’s numerical majority support
among unit employees will continue during the contract
term. Instead, it is grounded in the policy goal of stabi-
lizing collective-bargaining relationships. During the
term of the agreement, the conclusive presumption pre-
cludes an employer’s withdrawal of recognition or other
challenge to the union’s majority status—even in the face
of evidence showing a loss of actual, numerical majority
support—with limited exceptions for unusual circum-
stances. Id. at 786 fn. 3.
The conclusive-presumption principle is based on the
Board’s contract-bar doctrine. See id. at 786. The es-
sence of that doctrine is that absent exceptional circum-
stances, “the Board will not entertain a representation
petition seeking a new determination of the employees’
bargaining representative during the middle period of a
valid outstanding collective-bargaining agreement of
reasonable duration.” Hexton Furniture Co., 111 NLRB
342, 344 (1955). Rather, unit employees may exercise
their Section 7 right to choose or reject union representa-
tion at predictable intervals between contracts. Free
choice is thus not denied, but merely delayed. The doc-
trine’s purpose is to achieve “a finer balance between the
oftentimes conflicting policy considerations of fostering
stability in labor relations while assuring conditions con-
ducive to the exercise of free choice by employees.”
Deluxe Metal Furniture Co., 121 NLRB 995, 997 (1958).

1 As discussed below, to assume that the new employees want union
representation proportionately with the existing unit employees is con-
sistent with well-established legal presumptions. To assume to the
contrary is without any basis in fact and law. (See fn. 10 infra.) At
most, the transaction here created a question concerning representation,
which would have permitted the holding of an election, notwithstanding
the contract bar. While that itself is a dubious proposition, there is
certainly no basis under existing law to allow the employer unilaterally
to withdraw recognition without any evidence that the Union has lost
the support of a majority of the bargaining unit.
The contract-bar doctrine was specifically designed for
the representation-election context. However, the Board
drew on the principles embodied in the doctrine when it
considered analogous unfair labor practice cases, espe-
cially withdrawals of recognition at midterm of an
agreement.2 In either context, the status of the collective-
bargaining representative during the contract term was
potentially at issue, and thus consistency of legal princi-
ples was required.3
There are exceptions to the contract-bar rule for sig-
nificantly unusual, “changed circumstances” during the
contract term. General Extrusion Co., 121 NLRB 1165,
1167 (1958). For example, a current contract will not bar
consideration of a bargaining representative’s status
when there has been either a dramatic increase in person-
nel and job classifications, or a massive change in the
nature of the employer’s business such that it can be
viewed as a completely different operation.4 But signifi-
cantly for this case, “a mere relocation of operations ac-
companied by a transfer of a considerable proportion of
the employees to another plant, without an accompany-
ing change in the character of the jobs and the functions
of the employees in the contract unit, does not remove a
contract as a bar.” Id. at 1167–1168.
II. THE APPROPRIATE ANALYSIS
Applying these principles to the facts here should be a
straightforward matter.
A. Factual Background
The Respondent sells, rents, and services forklifts. It
has had a collective-bargaining relationship with the Un-
ion for 40 years. Their most recent collective-bargaining
agreement dated from August 1, 1996 until July 31,
2000. The contractual bargaining unit consists of the
Respondent’s forklift mechanics.
In October 1998, after several months of business dif-
ficulties, the Respondent bought the assets of Metro
Forklifts, a nonunion business whose mechanics per-

2 See, e.g., El Torito-La Fiesta Restaurants, 295 NLRB 493, 494-
496 (1989), enfd. 929 F.2d 490 (9th Cir. 1991); Westwood Import Co.,
251 NLRB 1213, 1213–1214 (1980), enfd. 681 F.2d 664 (9th Cir.
1982); Hexton, above, 111 NLRB at 343–344.
3 Hexton, above, 111 NLRB at 344.
4 More specifically, a contract will not bar an election if executed
“prior to a substantial increase in personnel,” i.e., where less than “30
percent of the complement employed at the time of the hearing had
been employed at the time the contract was executed,” and less than
“50 percent of the job classifications in existence at the time of the
hearing were in existence at the time the contract was executed.” Gen-
eral Extrusion, above, 121 NLRB at 1167. In addition, a contract will
not bar an election petition “if changes have occurred in the nature as
distinguished from the size” of the employer’s business, such as “a
merger of two or more operations resulting in creation of an entirely
new operation with major personnel changes.” Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD404
formed exactly the same work as the Respondent’s unit
employees. After hiring 14 of the Metro mechanics, on
November 2, 1998, the Respondent brought them to-
gether with its own 14 mechanics to work as one group
based in the Respondent’s Bloomfield, Minnesota loca-
tion. The Respondent’s business operation remained
exactly the same as it was prior to the Metro purchase.
Its mechanics—both the former Metro employees and
the original Nott unit employees—continued to do ex-
actly the same service and repair work they had per-
formed prior to November 2. In effect, it is undisputed
that nothing changed except for the addition of 14 em-
ployees performing bargaining unit work. Later in No-
vember, the Respondent repudiated its contract with the
Union and withdrew recognition, claiming that, because
of the addition of the Metro mechanics, the Union no
longer represented a majority of the bargaining unit em-
ployees.
B. Application of Contract-Bar Principles
As a matter of law, the Union was entitled to a conclu-
sive presumption of majority status through the term of
its contract with the Respondent. Under the applicable
contract-bar principles, the increase in the size of the
bargaining unit was not substantial enough to create an
exception to the conclusive presumption. The original
Nott employees represented by the Union constituted 50
percent of the overall unit once the Metro employees
were added. In addition, there was absolutely no change
in the nature of the Respondent’s operation or in the
functions of the employees in the overall unit. Thus,
there were no “changed circumstances” that would ne-
gate the conclusive presumption.
Accordingly, following the broad current of Supreme
Court and Board precedent, I would find that the Re-
spondent’s withdrawal of recognition violated Section
8(a)(5) and (1). As my colleagues acknowledge, the
other unfair labor practices alleged in the complaint are
established if this violation is found. Therefore, I would
find that Respondent violated Section 8(a)(5) and (1) as
further alleged in the complaint.
III. THE MAJORITY’S ANALYSIS
The majority’s analysis relies on a trio of Board deci-
sions that themselves were questionably reasoned, and its
explanation for failing to apply contract-bar principles,
contradicting 50 years of precedent, is itself dubious.
The majority does not explain, and cannot explain, why
the result here should be different than in a wide range of
analogous situations addressed by the Board in the past.
Its attempt to invoke a policy rationale, finally, is at odds
with the Act itself and with a bedrock principle acknowl-
edged by the Supreme Court: employers are not permit-
ted to decide for employees whether or not they will be
represented by a union.
A. The Majority’s Application of Precedent
My colleagues find that because the Respondent “con-
solidated,” or “integrated,” an equal number of union and
unrepresented employees in one group, the Metro me-
chanics could not be accreted into the bargaining unit,
the Union automatically lost its majority status, and the
Respondent’s withdrawal of recognition did not violate
the Act.
To be sure, there is some Board precedent in support
of the majority’s determination. The majority relies
principally on three Board decisions in reaching its re-
sult: Renaissance Center Partnership, 239 NLRB 1247
(1979); Central Soya Co., 281 NLRB 1308 (1986), affd.
867 F.2d 1245 (10th Cir. 1988); and Geo. V. Hamilton,
Inc., 289 NLRB 1335 (1988).
In Renaissance Center, a representation case, the
Board found that a question concerning representation
existed after the employer combined its 59 bargaining-
unit guards working in the employer’s office/retail com-
plex with 67 unrepresented guards who worked in a hotel
that was part of the complex. The employer’s guard unit
had recently been certified by the Board, raising the
question of whether a new election should be barred un-
der the certification-bar doctrine. The Board defined the
combination of represented and unrepresented employee
groups as a “consolidation.” 239 NLRB at 1247. It then
declined to find that the unrepresented hotel guards were
an accretion to the bargaining unit, because they out-
numbered the guards already in the unit. The Board also
rejected the claim that the certification-bar doctrine pre-
cluded an election, finding instead an “unusual circum-
stance”: “[t]he consolidation of the two groups has pre-
cipitously increased the size of the employer’s security
force and has completely obscured the separate identity
of the certified bargaining unit. . . .” Id. at 1248. The
Board concluded that the certified unit was therefore no
longer appropriate, and ordered an election in the com-
bined unit.
Renaissance Center involved the certification-bar doc-
trine rather than, as in the present case, an extant collec-
tive-bargaining agreement implicating contract-bar prin-
ciples. The Board thus did not confront a contract-bar
situation. (Arguably, there is an even greater need for
stability once a contract is negotiated.) To the extent that
the certification-bar doctrine is analogous to contract-bar
principles,5 Renaissance Center represents dubious
precedent on its own terms. It is clearly inconsistent

5 See Brooks v. NLRB, 348 U.S. 96 (1954), cited in Auciello, above,
at 786.
NOTT CO. 405
with the expanding-unit rules and other principles set
forth in General Extrusion, above.6 Thus, Renaissance
provides a shaky precedent, at best, for the decisions that
follow it.
In Central Soya, above, the Board found that the em-
ployer’s withdrawal of recognition from the union vio-
lated Section 8(a)(5). During the term of its collective-
bargaining agreement with the union, the employer trans-
ferred 17 bargaining-unit employees to a new location
and combined them there with 13 unrepresented employ-
ees. The respondent then withdrew recognition. Identify-
ing the transaction as a “consolidation as well as a relo-
cation,” 281 NLRB at 1309, the Board found that the 13
unrepresented employees were accreted into the existing
unit. The Board relied on the preexisting unit employ-
ees’ numerical majority (distinguishing Renaissance
Center) and on the fact that the employer’s business op-
eration remained substantially the same after the “reloca-
tion/consolidation.” 281 NLRB at 1309. In these cir-
cumstances, the Board found that the union retained its
majority status, and that the employer was therefore ob-
ligated to apply the contract to the combined employee
group.
The Central Soya Board relied on the faulty “numeri-
cal-majority” analysis in Renaissance Center for guid-
ance, although it distinguished the facts. Further, Cen-
tral Soya implied—without any explanation—that the
conclusive presumption of majority status was inapplica-
ble because the case involved a “consolidation.” Thus,
the Board found distinguishable, without further com-
ment, “exclusively relocation cases”: Westwood Import
Co., 251 NLRB 1213 (1980), and Harte & Co., 278
NLRB 947 (1986). 281 NLRB at 1309 fn. 6. Westwood
and Harte had both applied the Board’s conclusive pre-
sumption and contract-bar principles in light of existing
collective-bargaining agreements. Central Soya there-
fore created a special category for “consolidation” cases
without explaining how they differ analytically from re-

6 The single case the Board relied on to find that the employer’s se-
curity force had “precipitously” increased was Westinghouse Electric &
Mfg. Co., 38 NLRB 404 (1942). In Westinghouse, an expanding-unit
case, the Board decided to suspend the application of the certification-
bar rule because it was anticipated that the employer’s work force
would quadruple in size within a short period of time. This is a far cry
from Renaissance, where the employer’s guard complement no more
than doubled. Moreover, the Board’s finding that the certified unit’s
identity had been “obscured” because of the mingling of the two groups
belies the fact that after the consolidation the combined group per-
formed the same work that the unit employees had done before in sub-
stantially the same security operation. Thus there was neither an ex-
traordinary increase in the size of the unit, nor an extraordinary change
in the nature of the employer’s operation. See General Extrusion, 121
NLRB at 1167.
location cases,7 and without explaining why contract-bar
and conclusive presumption theories do not apply.
In Geo. V. Hamilton, above, the employer combined
two unrepresented warehouse employees with two ware-
house employees covered by a collective-bargaining
agreement. It then refused to bargain concerning the two
new employees and withdrew recognition from the union
regarding the two employees previously in the contrac-
tual unit. The Board dismissed the Section 8(a)(5) com-
plaint. It characterized, without explanation, the combi-
nation of the employee groups as an “operational integra-
tion” and indicated that this was equivalent to the unde-
fined “consolidation” in Central Soya. 289 NLRB at
1338. The Board also agreed that, like Central Soya, the
integration resulted in no substantial change in the re-
spondent’s warehouse operation. However, it distin-
guished Central Soya on the “crucial factor” of numeri-
cal majority: unlike the previous case, the warehouse
employees in the respondent’s contractual unit did not
represent a majority of the combined employee group,
and therefore the two unrepresented employees could not
be accreted into the unit. Id. at 1338–1339. In addition,
the Board, citing Renaissance Center, indicated that an
“unusual circumstance” existed: the integration of the
two unrepresented employees with the two union em-
ployees caused the contractual unit to become inappro-
priate. Therefore, according to the Board, the respon-
dent’s withdrawal of recognition was justified. 289
NLRB at 1340.
As should be evident, Hamilton is built on the errors in
the precedent it follows. The Hamilton Board relied on
the improper “consolidation category” created in Central
Soya to insulate its analysis from contract-bar and con-
clusive-presumption principles. And it drew support
from Renaissance Center for the erroneous proposition
that a mingling, or “integration,” of union and unrepre-
sented employees, in and of itself, “obscures” an existing
bargaining unit, permitting a withdrawal of recognition
during the contract term. Most significant, the Board
drew its conclusions in the face of its own finding that

7 “In relocation cases … our task is to distinguish situations where
the new facility is basically the same operation, simply removed to a
new site, from those where the new facility is somehow a different
operation from the original. In the former case, a collective-bargaining
agreement in effect at the old location is logically applied at the new
one. . . . [W]e have developed standards in our contract-bar and fail-
ure-to-bargain cases to determine when there is a sufficient continuity
of operations to justify applying an existing agreement to a new loca-
tion. These cases hold that an existing contract will remain in effect
after a relocation if the operations at the new facility are substantially
the same as those at the old and if transferees from the old plant consti-
tute a substantial percentage—approximately 40 percent or more—of
the new plant employee complement.” Harte & Co., 278 NLRB at 948,
citing Westwood Import Co., and General Extrusion Co.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD406
there was no substantial change following the integra-
tion: all of the employees in the combined group contin-
ued to do the same work within the same business opera-
tion—a critical factor in relocation cases (see fn. 7
above).8
All of the flaws in Renaissance Center, Central Soya,
and Hamilton have found a home in the majority opinion.
My colleagues identify the November 2 transaction com-
bining 14 unrepresented and 14 union mechanics as both
a “consolidation” and an “integration.” Having thus
placed the circumstances in Central Soya’s questionable
“consolidation category,” they follow Hamilton in find-
ing that the original Nott bargaining-unit employees
ceased to be a numerical majority in the combined group,
and therefore an accretion of the Metro employees could
not take place.9 Notwithstanding their denial of an accre-
tion, they find that an “integration” of the Metro employ-
ees with the Nott employees did occur. Accordingly,
under Renaissance the contractual unit ceased to exist,
and under Hamilton the Respondent was free to abrogate
the existing collective-bargaining agreement and termi-
nate its bargaining relationship with the Union. At the
same time, however, they acknowledge that after No-
vember 2, there was no change in the nature of the work
the combined group performed, and no change in the
nature of the Respondent’s business.

8 The Board in Hamilton also relied on Abbott-Northwestern Hospi-
tal, 274 NLRB 1063 (1985). In Abbott-Northwestern, the Board found
that the respondent did not unlawfully withdraw recognition after 9
bargaining-unit employees were combined with 63 nonunion employ-
ees. The Hamilton Board did not remark on the grossly different pro-
portion of union to nonunion employees in Abbott, 9 of 72, compared
with the warehouse employee combination, 2 of 4. The Abbott propor-
tion is consistent with an extraordinary unit expansion under General
Extrusion; the proportion in Hamilton is not.
9 Remarkably, the majority applies the “restrictive” policy govern-
ing accretion principles to conclude that employees have lost interest in
representation and the original 40-year-old bargaining unit has ceased
to exist. This is a strange application of the accretion doctrine, particu-
larly when no worker has expressed disinterest in representation. The
essential statement of the “restrictive” policy is set forth in Melbet
Jewelry Co., 180 NLRB 107, 110 (1969):
[The Board] will not ... under the guise of accretion, compel a group
of employees, who may constitute a separate appropriate unit, to be
included in an overall unit without allowing those employees the op-
portunity of expressing their preference in a secret election or by some
other evidence that they wish to authorize the Union to represent
them.
(emphasis added). There is no evidence on this record that the
Metro employees could stand separately as an appropriate unit in the
Respondent’s employ. The evidence clearly suggests the opposite: the
Respondent hired them to do exactly the same work under exactly the
same conditions as the original Nott bargaining-unit employees.
B. The Majority’s Failure to Apply
Contract-Bar Principles
Distinct from the Board’s approach in Central Soya
and Hamilton, the majority at least addresses contract-bar
principles in its analysis. However, my colleagues say
that these principles are inapplicable essentially because
this is an unfair labor practice proceeding. In their view
the contract-bar doctrine is limited to representation pro-
ceedings.
Their explanation is simply wrong. The Board has
been applying contract-bar principles in unfair labor
practice cases for more than 50 years, particularly in
situations where the employer has withdrawn recognition
at midterm of an agreement. See, e.g., Sanson Hosiery
Mills, Inc., 92 NLRB 1102 (1950), enfd. 195 F.2d 350
(5th Cir. 1952), cert. denied 344 U.S. 863 (1952).10
C. Board Precedent in Analogous Circumstances,
and the Majority’s Policy Rationale Here
The result reached here cannot be reconciled with
Board precedent in analogous circumstances. The major-
ity has concluded that because this case involves an “in-
tegration” of an equal number of union and nonunion
employees at an existing facility, the Respondent’s with-
drawal of recognition did not violate the Act. However,
if the same basic factual pattern (i.e., the combined group
of employees performing exactly the same work as be-
fore, with the nature of the company’s operation un-
changed) were presented in a variety of alternative con-
texts, the result would be starkly different under Board
precedent.
The conclusive presumption of majority support and
the contract-bar doctrine would apply:
(1) if the Respondent had merely relocated its 14
union employees at the former Metro facility, rather
than the other way around;11

10 Even if, for some reason, the conclusive presumption were not
applicable in this case, a rebuttable presumption of the Union’s con-
tinuing majority status would be in effect. See, e.g., Auciello, above,
517 U.S. at 786–787. The Respondent provided no evidence to rebut
the presumption. The mere fact that unrepresented Metro employees
joined the bargaining unit in numbers equal to those unit employees
already working does not rebut the presumption. Employees new to the
bargaining unit are presumed to support the union in the same propor-
tion as those employees with more seniority. Pioneer Inn, 228 NLRB
1263, 1266 (1977), enfd. 578 F.2d 835 (9th Cir. 1978). The Board has
never presumed that new unit employees do not support the Union.
J. R. Simplot Co., 311 NLRB 572, 588 (1993). Indeed, it is precisely
this presumption that the Supreme Court rejected even when strike
replacements are hired into the unit. NLRB v. Curtin Matheson Scien-
tific, 494 U.S. 775, 796 (1990).
11 See, e.g., Rock Bottom Stores, 312 NLRB 400 (1993), enfd. 51
F.3d 366 (2d Cir. 1995); Westwood Import Co., 251 NLRB 1213
(1980), enfd. 681 F.2d 664 (9th Cir. 1982).
NOTT CO. 407
(2) if the Respondent had chosen to shut down its
business temporarily and lay off its unit employees
before the Metro purchase, and then reopened on
November 2 with its 14 recalled mechanics and the
newly-hired 14 Metro mechanics;12
(3) if the Respondent had continued to recognize
the Union and applied the collective-bargaining
agreement to the combined unit of mechanics after
November 2;13
(4) if the Respondent had subcontracted the bar-
gaining unit work and laid off all of its mechanics
prior to purchasing Metro, and then recaptured the
work as of November 2 using the 14 Metro mechan-
ics and 14 of its own recalled mechanics;14 and
(5) if, after November 2, an RC petition, or an
RM petition, or a decertification petition had been
filed under Section 9.15
Finally, if the Respondent had decided to hire 14 mechanics
off the street on November 2 to perform bargaining-unit
work, rather than bringing in the Metro mechanics as a
group, it is indisputable that these new employees’ terms
and conditions of employment would be covered by the
parties’ agreement. Gourmet Award Foods, Northeast, 336
NLRB 872, 873 (2001); Meyer’s Cafe & Konditorei, 282
NLRB 1 fn. 1 (1986).
Any purported distinction between these situations and
what occurred here is particularly inscrutable.16 In these

12 El Torito-La Fiesta Restaurants, 295 NLRB 493 (1989), enfd. 929
F.2d 490 (9th Cir. 1991).
13 See Coastal Cargo Co., 286 NLRB 200, 204 (1987) (dismissing
unfair labor practice charge alleging unlawful recognition of minority
union); Herman Brothers, Inc., 264 NLRB 439, 441 (1982) (and cases
cited).
14 F & A Food Sales, 325 NLRB 513 (1998), enfd. 202 F.3d 1258
(10th Cir. 2000).
15 Bowman Dairy Co., 123 NLRB 707 (1959); General Extrusion
Co., 121 NLRB 1165 (1958).
16 I especially fail to see how one set of rules can apply to a consoli-
dation (unrepresented employees join existing unit at old location) and
another to a relocation (existing unit employees move to new facility
joining unrepresented employees). Surely, the direction of the move
cannot be legally significant.
The majority seeks to distinguish the “relocation situation,” citing
Harte & Co., 278 NLRB 947 (1986), because, it suggests, in a reloca-
tion the bargaining unit simply moves to a new site, without the in-
volvement of additional employees. That mischaracterizes Harte &
Co., where bargaining unit employees were not merely moved from one
location to another. Rather, they were relocated and combined with a
new group of employees at a new facility, where they constituted about
40 percent of the total new plant employee complement. Accordingly,
the Board held, the existing collective-bargaining agreement lawfully
remained in effect as to all in the combined unit. Id. at 948–949.
Likewise, the majority seeks to distinguish the shutdown and re-
opening situation, citing El Torito-LaFiesta Restaurants, above, on the
grounds that there had “only been a temporary hiatus in operations.”
Again that mischaracterizes El Torito-LaFiesta, where, after operations
resumed, laid-off bargaining-unit employees were combined with a
situations, any attempt by the Respondent to refuse to
apply the contract to the Metro employees, or to deny
recognition to the Union, would violate the Act. The
majority opinion, of course, does not follow this legal
pattern. It is the majority’s obligation to explain why
this is so, to reconcile conflicting doctrines, and to justify
its decision in light of the Act’s principles and policies.17
They have not satisfied this obligation.18
The majority asserts that sound policy considerations
support the Respondent’s withdrawal of recognition. In
its view, the “express” Section 7 right of the Metro em-
ployees to choose or reject union representation must
prevail over the “implicit” policy of collective-
bargaining stability. But the majority’s underlying prem-
ise—that the Act itself makes employee free choice (as
the majority understands it) the primary statutory pol-
icy—is clearly mistaken. Section 1 of the Act establishes
not only that economic stability through collective-
bargaining is an explicit policy goal, but that it is to be
considered together with the protection of employees’
Section 7 rights.19
In any case, the result reached is simply not an appro-
priate policy determination. It serves neither employee
free choice, nor bargaining stability. “The object of the
National Labor Relations Act is industrial peace and sta-

new, much larger group of employees. Nonetheless, the Board held,
the existing labor contract was lawfully applied to the combined com-
plement. These situations cannot be coherently distinguished from the
present case.
17 See, e.g., Thomas-Davis Medical Centers, P.C. v. NLRB, 157
F.3d 909, 914 (D.C. Cir. 1998) (Board must provide “a reasoned expla-
nation” when it departs from established policy or precedent).
18 The majority says it will “not reach out to reverse . . . precedent
sua sponte,” observing that the “law goes as far back as 26 years,” that
the “one case that was judicially tested was affirmed,” and that “[n]o
party seeks the reversal of this precedent.” I agree that all three fac-
tors—the age of a decision, its judicial reception, and the positions of
the parties—are relevant in deciding whether to overrule precedent. In
this case, however, those factors are clearly outweighed by the Board’s
duty to bring coherence to its legal rules, by correcting past errors and
resolving doctrinal contradictions. We cannot delegate that responsibil-
ity to the courts or to the parties. The much-quoted observation of
Justice Holmes is apt here: it is “revolting” to follow a doctrine only
“from blind imitation of the past.” Holmes, “The Path of the Law,” 10
Harv. L. Rev. 457, 469 (1897). As this case illustrates, one bad deci-
sion may well lead to another and another, until Board law appears
arbitrary.
19 The relevant portion of Sec. 1 states:
It is hereby declared to be the policy of the United States to eliminate
the causes of certain substantial obstructions to the free flow of com-
merce and to mitigate and eliminate these obstructions when they
have occurred by encouraging the practice and procedure of collec-
tive bargaining and by protecting the exercise by workers of full
freedom of association, self-organization, and designation of repre-
sentatives of their own choosing, for the purpose of negotiating the
terms and conditions of their employment or other mutual aid or pro-
tection.
28 U.S.C. Sec. 151 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD408
bility, fostered by collective-bargaining agreements pro-
viding for the orderly resolution of labor disputes be-
tween workers and employers.” Auciello, above, 517
U.S. at 785. Here, in contrast, the majority permits an
employer to assert for itself employees’ statutory right to
choose or reject union representation. The Supreme
Court has told us that this management stance is “inimi-
cal”20 to the goal of promoting industrial peace and is
“entitled to suspicion”21 on the part of the Board.
In this case, the employer itself engineered the “con-
solidation” the majority seizes upon. And it was the em-
ployer who decided not only that the collective-
bargaining agreement would no longer apply, but also

20 Brooks, above, 348 U.S. at 103.
21 Auciello, above, 517 U.S. at 790.
that employees would no longer be represented by the
Union at all. There is no evidence at all of the employ-
ees’ actual wishes. To justify this result in terms of em-
ployee free choice is absurd.
IV. CONCLUSION
In the past, the Board has recognized that it is “not free
to adopt and apply principles that are ‘fundamentally
inconsistent with the structure of the Act and the function
of the sections relied upon.’” John Deklewa & Sons, 282
NLRB 1375, 1385 (1987), enfd. sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), quoting
American Ship Building v. NLRB, 380 U.S. 300, 318
(1965). The majority opinion in this case, and the small
pocket of cases it relies on, do exactly that. Accordingly,
I dissent.