NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
American Golf Corporation d/b/a Badlands Golf
Course and Laborers’ International Union of
July 19, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman, Schaumber,
Kirsanow, and Walsh
On March 15, 2004, Administrative Law Judge Albert A. Metz issued the attached decision. The Charging Party filed exceptions and a supporting brief, the Respondent and the General Counsel each filed an answering brief, and the Charging Party filed a brief in reply to the General Counsel’s answering brief. The Respondent also filed cross-exceptions and a supporting brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this Decision and Order.
Facts
The relevant facts, which are set out more fully in the judge’s decision, may be summarized as follows.
On December 9, 1999, the Laborers’ International Union of
North America, Local 872 (Union) was certified as the exclusive bargaining representative
of a unit of groundskeepers, mechanics, irrigators, and crew leaders employed
by the Respondent at its golf club in
The parties resumed bargaining on November 26, 2002. From that date until May 2003,[3] the
parties met approximately 6–8 times for face-to-face negotiations and,
additionally, engaged in telephonic negotiations on several occasions. As of May 19, 2003, the parties had reached
agreement on all but one of the terms of a complete collective-bargaining
agreement.[4] Specifically, the
This is where matters stood on May 23, when the Respondent received a handwritten petition signed by a majority of the unit employees, stating:
We the employee’s [sic] of Badlands Golf Course Maintenance no longer wish to be represented or affiliated with the Laborers Union Local # 872. We feel that we have been misrepresented [sic] by Local #872, in that a contract was negotiated that is not in our best interest. Also, we had no say in this contract being turned over to be signed.
Also on May 23, the Respondent received a copy of a decertification petition that the employees had filed with the Board.
Sometime between June 10 and 15, the Respondent withdrew
recognition from the
On or about June 3, the
Judge’s Decision
Applying Lee Lumber
& Building Material Corp., 334 NLRB 399 (2001), the judge found that the
Respondent’s June withdrawal of recognition violated Section 8(a)(5) and (1) of
the Act because a reasonable period of time for bargaining had not elapsed
after the resumption of negotiations pursuant to the Board’s November 2002
Order. Having found the withdrawal
unlawful, the judge also found that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to provide the
Discussion
In Lee Lumber, supra, the Board reconsidered and modified the standard by which it determines what constitutes a “reasonable period of time for bargaining” where an employer has unlawfully failed to bargain with an incumbent union and, consequently, has been ordered by the Board to bargain in good faith. Specifically, the Board adopted an insulated 6-month period—measured from the date on which the employer commences bargaining in good faith—during which the union’s majority status cannot be questioned. 334 NLRB at 402. Recognizing that some employers might respond to a fixed-time rule by dragging their feet in negotiations, the Board further held that the 6-month insulated period may be extended to as much as 1 year, depending on the following case-specific factors: (1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated and of the parties’ bargaining processes; (3) the amount of time elapsed since the parties began to bargain and the number of bargaining sessions; (4) the amount of progress made in negotiations and the parties’ proximity to agreement; and (5) whether the parties are at impasse.
The judge recognized that the 6-month insulated period had elapsed by the time the Respondent withdrew recognition in June 2003. Thus, he applied the 5 Lee Lumber factors outlined above to determine whether the insulated period should be extended beyond 6 months. Having done so, he concluded that a reasonable time for bargaining had not yet elapsed. We disagree.
We acknowledge that some of the Lee Lumber factors do arguably tend to favor an extension. The judge correctly found that the parties
were bargaining for an initial contract, that only one issue remained outstanding,
and that the parties were not at impasse.
On the other hand, the judge also found that the issues being negotiated
were not “excessively complicated,” and there is no evidence that the parties’
bargaining processes were complex.
Moreover, the parties did not start from scratch when they resumed
bargaining in November 2002: they had
bargained from the time the Union was certified in December 1999 until the
We recognize that only the “wage table” issue remained unresolved at the time of withdrawal of recognition. However, Fears testified that the parties remained “at loggerheads” on this issue, and there was no contrary testimony. Thus, although Fears did not have a closed mind on the issue, the fact remains that the parties, after considerable time and effort, remained apart on this issue. In these circumstances, we do not believe that the General Counsel has shown that “giving [the parties] a bit more time for negotiations” is likely to enable them to reach an agreement.[7]
In sum, there are two factors that favor the General Counsel (Nos. 1 and 5), and the other factors favor the Respondent (Nos. 2, 3, and 4). And the factor of time (No. 3) overwhelmingly favors the Respondent.[8]
Our dissenting colleagues state that we have rejected the principles of Lee Lumber. They rely upon the Lee Lumber sentence that says, “[t]he ‘reasonable period’ begins when the offending employer commences bargaining in good faith.” 334 NLRB at 399 fn. 6. Thus, in their view, events occurring prior to that time should not be considered. We disagree. It is true that the time period being measured begins with the employer’s bargaining in good faith. But the question is whether that time period is reasonable. We believe that “reasonableness” depends on all relevant circumstances. We would not artificially omit relevant circumstances simply because they occurred prior to the time being measured. The Board’s task in this case and others like it is to determine whether bargaining pursuant to an order remedying an unlawful refusal to recognize or bargain—for shorthand purposes, “remedial” bargaining—has continued for a reasonable period of time. Part of that task involves applying the third Lee Lumber factor. But the amount of time elapsed since remedial bargaining began cannot help the Board decide whether that same amount of time is reasonable. No period of time, in and of itself, is inherently reasonable or unreasonable; it may be judged so only in relation to something else. The other Lee Lumber factors—e.g., complexity of the issues, whether the parties are at impasse—satisfy this analytically necessary “something else” principle. But the “passage of time” factor does so only if it includes time devoted to bargaining prior to the remedial bargaining period the reasonableness of which we are attempting to judge. Thus, to make analytically meaningful the language in Lee Lumber directing the Board to consider the “amount of time elapsed since the parties began to bargain,” it is necessary to take into consideration the total amount of time devoted to bargaining.
Notwithstanding the dissent’s assertions to the contrary, we are not saying that the “reasonable period” includes pre-remedial bargaining. We are saying that the duration of pre-remedial bargaining is relevant to determining whether remedial bargaining has continued for a reasonable period of time. Nor do we contend that the pre-remedial bargaining somehow erased the taint of the subsequent withdrawal of recognition, or that the withdrawal did no damage to the bargaining relationship. We find simply that the earlier bargaining should not be ignored in determining whether to require further bargaining beyond the 6-month insulated period.
The dissent relies on certain language in Lee Lumber. More particularly, the Board in Lee Lumber stated that “the passage of
a relatively long period of time after the 6-month insulated period” supports
finding that a reasonable time has elapsed, whereas “relatively little passage
of time beyond the 6-month period” supports the opposite finding. 334 NLRB at 405. The dissenters apparently believe that this
language supports the view that events occurring after the 6-month period are to be considered in determining the
reasonableness of the period, but (by negative implication) events occurring
prior to the 6-month period cannot be considered. We disagree that this language contradicts
our analysis. Nothing in the language
the dissent cites precludes consideration of pre-remedial bargaining in the “reasonable
time” analysis. Lee Lumber is simply silent as to pre-remedial bargaining, which is
unsurprising considering that there was
no such bargaining in that case: the employer
refused to bargain before the parties ever went to the table.
In concluding, under the circumstances of this case, that the parties bargained for a reasonable period of time following their November 2002 resumption of negotiations, we emphasize that the Lee Lumber factors should be considered in relation to, not in isolation from, one another. For example, the fact that there had been substantial bargaining between the parties in addition to the bargaining that began in November 2002 inclines us to assign less weight than we otherwise might to the fact that the parties were bargaining for an initial contract. Had the parties done little or no previous bargaining, the difficulties often encountered in bargaining for an initial contract might loom larger in the overall analysis. That might also be the case if there were unusually complex issues involved. Here, however, a substantial amount of bargaining had already occurred, and the issues were apparently not complex.
Contrary to the dissent’s contention, we are not ignoring the difference between first contract bargaining and renewal contract bargaining nor interpreting one Lee Lumber factor (i.e., the “passage of time” factor) in a manner that disregards another altogether. Rather, we are weighing all of the factors in relation to one another, as explained above. We also reject the dissent’s suggestion that our ruling effectively creates a per se 6-month insulated period. Notwithstanding the dissent’s professed inability to imagine an extension beyond 6 months, nothing in our decision today would prevent a different result from being reached on different facts.
Finally, and contrary to the assertion of our colleagues,
we do not say that the pre-remedial
bargaining is “most relevant” or “preeminent.”
We simply say that it is relevant.
Nor do we agree that the withdrawal of recognition in February 2002 “tainted”
the pre-remedial bargaining. There was
and is no allegation that this bargaining was in bad faith. Indeed, it was the
On balance, we find that the General Counsel has not met
his burden of demonstrating that employee free choice should be set aside in favor
of extending the insulated period beyond 6 months. We therefore dismiss the allegation that the
Respondent’s withdrawal of recognition was unlawful. Further, because that withdrawal was lawful,
we also dismiss the allegation that the Respondent unlawfully failed and
refused to provide information requested by the
ORDER
The complaint is dismissed.
Dated,
Robert J. Battista, Chairman
Peter
C. Schaumber,
Member
Peter
N. Kirsanow,
Member
(seal) National
Labor Relations Board
Members Liebman and Walsh, dissenting.
The Respondent has now withdrawn recognition from the
I.
Lee Lumber was the Board’s attempt to accommodate the sometimes conflicting statutory goals created by an employer’s unlawful withdrawal of recognition from an incumbent union. On the one hand, employees have a right to choose or reject a bargaining representative.2 On the other, a union once chosen is entitled to a legitimate opportunity, during which its majority cannot be challenged, to demonstrate its worth to the employees in a context free of the taint of the employer’s previous unfair labor practices.
Accordingly, in Lee
Lumber, the Board stated, “‘when a bargaining relationship . . . has been
restored after being broken, it must be given a reasonable time to work and a
fair chance to succeed’ before the union’s representative status can properly
be challenged.”
A unanimous Board in Lee
Lumber settled on “at least 6 months” as the reasonable time period
following the renewal of bargaining during which the union’s representative
status cannot be challenged, with that “minimum
period . . . extend[able] up to an additional 6 months, depending on an
analysis of other case-specific factors.”
Another factor is passage of time and the number of
bargaining sessions that have occurred.
II.
The majority’s decision turns its back on the foregoing principles, misapplies Lee Lumber, and reaches an erroneous result. First, the majority all but disregards the fact that the parties were bargaining for an initial contract. Second, the majority attempts an end run around the passage-of-time factor by relying heavily on the parties’ bargaining history before the Respondent’s unlawful February 2002 withdrawal of recognition. Third, the majority erroneously concludes that the progress-in-negotiations factor, and the overall balance of all the Lee Lumber factors, favor finding that a reasonable time has elapsed.
The majority grossly minimizes the fact that the parties
were bargaining for an initial contract.
For the reasons explained in section I, above, the Board in Lee Lumber was careful to draw a distinction
between first-time and renewal contract bargaining. The Board concluded that, if the parties are
bargaining for an initial contract, then the period during which the union’s
majority cannot be challenged should be longer.
The majority also contends that the parties did not “start from scratch” when they resumed negotiations in November 2002, pursuant to the Board’s bargaining order, because they had previously bargained from December 1999 to August 2000, before the first unlawful withdrawal of recognition in February 2002. The majority “add[s]” that period of earlier bargaining to the resumed negotiations and finds that “the parties engaged in bargaining over the course of approximately 14 months.” Ultimately, the majority concludes that the passage-of-time factor “overwhelmingly favors the Respondent.” In doing so, the majority rewrites Lee Lumber in a manner contrary to its plain language and animating principles.
First, as shown above, Lee
Lumber states that the “reasonable time” for bargaining commences when the
respondent resumes bargaining after its unlawful refusal. See id. at 399 fn. 6. Explaining how the “passage of time” factor
is to be applied, the Board in Lee Lumber
stated plainly that “relatively little passage of time beyond the 6-month period” weighs against finding that a reasonable
time has elapsed.
In order to find that the “passage of time” factor favors the Respondent, the majority must conclude that less than 3 weeks - the amount of time between the end of the 6-month period and the Respondent’s second withdrawal of recognition—is a “relatively long period of time.” Faced with the obvious difficulty in making such a statement, the majority chooses instead to effectively read the foregoing language out of Lee Lumber. The majority focuses on the parties’ “pre-remedial” bargaining and contends that Lee Lumber was “simply silent” as to the relevance of such bargaining. The problem with this contention is that the majority is relying on the pre-remedial bargaining to satisfy the “passage of time” factor. As explained above, Lee Lumber is not silent on how the “passage of time” factor is to be applied. The Board gave clear instructions—which the majority now defies—that the passage of relatively little time after the 6-month period tends to show that a reasonable time has not elapsed.
Second, the majority’s reliance on the pre-violation
bargaining disregards one of the fundamental principles underlying Lee Lumber: that a withdrawal of recognition causes lasting
damage to the parties’ bargaining relationship.
When an employer unlawfully withdraws recognition, the relationship has
been “broken” and must be restored.
According to the majority, bargaining that occurs after the 6-month insulated period is simply “relevant” to the passage of time component of Lee Lumber. Strangely, the majority seems to treat the pre-remedial bargaining period as most relevant. The majority does not claim that a period of less than 3 weeks of post-insulated period bargaining, standing alone, is a “long period of time” under Lee Lumber. Obviously, it is not. Only by finding the pre-remedial bargaining period to be preeminent can one explain the outcome reached by the majority. But, this is backwards. As we all agree, the Respondent tainted the bargaining process when it initially withdrew recognition prematurely. For purposes of remedying that violation, to then allow pre-remedial bargaining to trump post-remedial bargaining is counterintuitive. Yet, that is the essential core of the majority’s reasoning. That is not Lee Lumber as we intended.
Consistent with the plain meaning of Lee Lumber, the relevant time period to consider in the present case is November 2002 to June 2003—6–1/2 months, not 14 months. During that time, the parties met between 6 and 8 times (a little more than once a month) and negotiated a few times by telephone. The number of bargaining sessions was not excessive and does not weigh against allowing the parties additional time, particularly in light of the progress made during negotiations (discussed below). With regard to passage of time, less than 3 weeks had passed since the end of the 6-month insulated period. Accordingly, this factor, too, strongly favors the result reached here by the judge, not the majority.9
Finally, contrary to the majority, the amount of progress
in negotiations and the proximity to agreement in this case favor a finding
that a reasonable time had not elapsed. “When
negotiations have nearly produced a contract, it is reasonable that the parties
should have some extra time in which to attempt to conclude an agreement.”
In sum, the majority’s deformation of Lee Lumber causes it to all but ignore the critical facts of this case: the parties were bargaining for an initial contract, the Respondent withdrew recognition less than 3 weeks after the insulated 6-month period, and the Respondent did so at a time when the parties were not at impasse and had reached agreement on all but one minor contract term.[11] The Lee Lumber factors, properly applied, strongly support the judge’s determination that the reasonable time for bargaining here extended beyond the “minimum” 6 months. Indeed, to find otherwise on these facts amounts to overruling the carefully considered decision in Lee Lumber.[12] Accordingly, we would adopt the judge’s decision that the Respondent’s withdrawal of recognition violated Section 8(a)(5) and (1) of the Act.[13]
Dated,
Wilma
B. Liebman, Member
Dennis
P. Walsh,
Member
National Labor Relations Board
Winkfield F. Twyman Jr., Esq., for the General Counsel.
Daniel F. Fears, Esq. and Jeffrey K. Brown, Esq., for
the Respondent.
David A. Rosenfeld, Esq., for the Charging Party
DECISION1
Albert A. Metz,
Administrative Law Judge. The issues presented
are whether the Respondent unlawfully withdrew recognition of the Union and
refused to bargain with the
i.
jurisdiction
The Respondent, a
ii. background
On December 9, 1999, the
All regular full-time and regular part-time
groundskeepers, mechanics, irrigators, and crew leaders employed by the Respondent
at its Badlands Golf Club located in
Shortly after the
Commencing on about November 26, 2002, the parties did
engage in collective-bargaining for an initial labor agreement and the
negotiations continued into May 2003.
George Vaughn, the Union’s director of organizing represented the
In a May 9 draft agreement there were two unresolved issues between the parties. The first dealt with a reference to part-time employees. The second was a question as to whether a column called “Current Wages” should be included in addendum “B” of the agreement. Vaughn accepted the changes offered by the Respondent in the draft with the single exception that he left unchanged the inclusion of the unit employees’ current wages.
In a position statement submitted to the Board’s Regional Office during the investigation of this matter Fears referred to a May 16 telephone call between the Parties;
At the May 16, 2003, telephone conference, there was one final
provision that the Company advised Mr. Vaughn that it did not want in the
contract. Specifically, the Company did
not want a section in the contract that referred to “current wages,” because it
might create problems with newly hired employees who would see the current
wages of existing employees. Mr. Vaughn
and the undersigned did not agree upon this language. Although Mr. Vaughn kept saying words to the
effect that he thinks it’s done, the undersigned advised Mr. Vaughn that he
would consider it further in the
Fears testified similarly at
the hearing in reference to the May 16 conference call (Tr. 72):
A. I believe we had a phone conference around
that date, and May 16th sounds about right.
. . . I may have said I will continue
to consider his proposal, because I knew he wanted it in there. . . .
On May 19, Vaughn wrote a letter to Kelly Howard and
Fears. Vaughn’s letter states he was
including signed copies of the “final” agreement signed by the
On May 23, the Respondent received handwritten petitions (in Spanish and English) from a majority of its unit employees stating:
We the employee’s of Badlands Golf Course Maintenance no longer wish to be represented or affiliated with the Laborers Union Local # 872. We feel that we have been misrepresented by Local # 872, in that a contract was negotiated that is not in our best interest. Also, we had no say or vote in this contract being turned over to be signed.
At the hearing the Parties
stipulated to the following additional facts:
1. The handwritten petitions were valid and represent the sentiment of a majority of the employees in the unit regarding union representation.
2. On May 23, the Respondent also received a
petition in Case 28–RD–892 requesting the Board to conduct an election among
the unit employees so they could express their desires as to whether or not
they wanted to decertify the Union as their collective-bargaining
representative.
3. On or about June 3, 2003, the Respondent
received a request for information from the
4. On or about June 10 to 15 the Respondent
withdrew recognition of the Union and so advised the
5. From the time of the petition to the time of
the withdrawal, the sentiment of the unit employees as reflected in the handwritten
petitions of May 23 did not change.
Fears testified that the Parties were not able to reach agreement on the inclusion of the “current wages” section of the proposed contract. He, therefore, concluded that the Parties were at an impasse.
The
In a written communication dated June 26, Fears provided the Board’s Regional Office with a statement concerning the Respondent’s position relative to the charges filed in this case. Fears’ statement relates the following regarding the reasons for withdrawing recognition:
Faced with a petition signed by an overwhelming number of the employees, it was apparent that (1) the employees had not ratified the proposal, and (2) this Union no longer represented a majority of the employees, and thus it would be inappropriate for the Company to negotiate with [the Union] and ultimately execute any proposed agreement, even if it found no objection to the terms. (GC Exh. 2(a), p. 5.)
iii. analysis
The Respondent asserts that because the
The Government argues that the Respondent was not privileged to withdraw recognition because the parties had not bargained for a year from the date the parties first met on November 26, 2002. The Government asserts that this case is controlled by the Board’s decision in Chelsea Industries, 331 NLRB 1648 (2000) (An employer does not have the right, after expiration of the certification year, to withdraw recognition from a union on the basis of an antiunion petition circulated and presented to the employer during the certification year.) See also, Brooks v. NLRB, 348 U.S. 96 (1954) (Absent unusual circumstances, an employer must recognize the union for the entire certification year, even if it is presented with evidence of the union’s loss of majority.)
I find
Fears’ gave uncontroverted testimony in the present
hearing that the parties had bargained “for a long period of time” after the
certification until the
The next point for examination is whether the Respondent’s withdrawal of recognition in the present case otherwise frustrated the Board’s extant bargaining order. The Board requires that a reasonable period of bargaining take place in order to comply with its bargaining orders. Lee Lumber & Building Material Corp., 334 NLRB 399, 402 (2001) (When an employer has unlawfully failed to bargain with an incumbent union there should be an “insulated period” of a defined period of at least 6 months in which the employer cannot challenge the union’s majority status.) Lee Lumber teaches that in making an assessment of whether reasonable bargaining has taken place during the insulated period the Board looks at the following factors:
1. Whether the parties are bargaining for an initial contract. The Parties in this case were negotiating for an initial contract. The Board holds that there are additional burdens associated with initial contract negotiations. MGM Grand Hotel, 329 NLRB 464, 466 (1999):
Particularly, where the parties are negotiating an initial
contract, the Board recognizes the attendant problems of establishing initial
procedures, rights, wage scales, and benefits in determining whether a
reasonable time has elapsed.
2. The complexity of the issues being negotiated and the procedures adopted for bargaining. As this was an initial contract there was no history or existing contract to guide the Parties in their negotiations. Examining the last contract proposal between the Parties leaves the impression that the contract was not excessively complicated but the extensive negotiations that produced that document weighs in favor of showing that the Parties did have many issues to discuss and agree upon.
3. Passage of time and number of bargaining sessions. The Parties had met on six–eight occasions and also negotiated several times over the telephone. These negotiations spanned the period from November 26, 2002, until withdrawal of recognition in the period June 10–15, 2003.
4. Proximity to agreement. The Parties had made substantial progress in
their negotiations. The proposal signed
by the
5. Presence or absence of impasse. The evidence does not show that the Parties were at an impasse. By definition, an impasse occurs whenever negotiations reach that point at which the parties have exhausted the prospects of concluding an agreement and further discussions would be fruitless. Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete, 484 U.S. 539, 543 (1988); Jano Graphics, Inc., 339 NLRB 251, 257 (2003) (A genuine impasse in negotiations is “synonymous with a deadlock; the parties have discussed a subject or subjects in good faith, and, despite their best efforts to achieve agreement with respect to such, neither party is willing to move from its position.”) The burden of proof rests on the party asserting that impasse exists. North Star Steel Co., 305 NLRB 45 (1991); Roman Iron Works, 282 NLRB 725 (1987). Whether a bargaining impasse exists is a matter of judgment. Evidence concerning the bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968); Grand Auto, 320 NLRB 854, 857 (1996).
The Board and courts have provided guidance as to what is a reasonable period of bargaining in various cases. In Ford Center for the Performing Arts, 328 NLRB 1, 3 (1999), the Board cited with approval N. J. MacDonald & Sons, 155 NLRB 67 (1965), which discussed what was a reasonable period of time for bargaining after an employer had unlawfully refused to bargain. N. J. MacDonald gives the following instruction on the subject (at pp. 71–72):
The issue in this case is whether Respondent was
obligated under the Act to continue to bargain with the
It is well settled that after the Board
finds that an employer has failed in his statutory duty to bargain with a
union, and orders the employer to bargain, such an order must be carried out
for a reasonable time thereafter without regard to whether or not there are
fluctuations in the majority status of the union during that period. . . .
. . . .
The
determination of what constitutes “a reasonable time” depends upon the
particular circumstances involved. What is reasonable in one case may not be so
in another. Thus, the Board has held
that. . . . [W]here the parties had not
reached an impasse in negotiations, 6 months was held not to be “a reasonable
time.” [FN 4. H. E.
Fletcher Co., 131 NLRB 474 (1961); Consolidated
Textile Co., 106 NLRB 580 (1961). Accord: Stant
Lithograph, Inc., 131 NLRB 7, 8 (1961), affd. per curiam 297 F.2d 782
(1961); Frank Becker Towing Co., 151
NLRB 466 (1965).]
Here,
it does not appear that the parties had ever before negotiated a
collective-bargaining contract. The
The Parties in the present case were close to agreement on
the initial contract. The remaining
issue of including the employees’ current wages in the agreement was a
relatively minor matter in light of the history of negotiations, the other
weightier issues involved in the negotiations and the fact the Parties had
reached agreement on the remainder of the contract. Fears took the position in his statement to
the Regional Office that he had notified the
The Respondent decided to wait approximately 3 weeks after
receiving the decertification petitions before it announced its withdrawal of
recognition. The announcement thus came
a few days after the 6-month insulated bargaining period. The Respondent seems to see this as
sufficient to meet the requirements of the Lee
Lumber 6-month insulated period. In
its brief, however, the Respondent argues that it “. . . has relied [for
withdrawal of recognition] not upon the May 23, 2003 ‘petition,’ but upon the stipulated fact that, at all times from
May 23 through June 10–15, a majority of the employees did not support the
The Respondent also argues that the
Q. Just—did he [Vaughn] at that point say that they—it had been ratified? Yes or no.
A. When you say “‘it ratified”: No, he didn’t say that. He said the major terms that were at issue at that time—because we did not have a final type of agreement, he said major things were voted upon and that the employees also would ratify any final agreement.
Thus, I find that the issue of ratification was a pending matter that was not a legitimate excuse for the Respondent to claim that the Parties could not reach a final agreement.
The Respondent argues that its withdrawal of recognition
is sanctioned by the Board’s decision in Levitz
Furniture Co. of the Pacific, 333
NLRB 717 (2001) (An employer may unilaterally withdraw recognition from an
incumbent union only where the union has actually lost the support of the
majority of the bargaining unit employees).
In Levitz, the Board was not
faced with the employer’s unlawful refusal to bargain background present in
this case. Thus, in the instant case the
Board has found that the Respondent had violated the Act by unilaterally
withdrawing recognition and not having proved the actual loss of majority
status. It is within the context of this
unfair labor practice and the Board’s bargaining order that the Respondent’s
second unilateral withdrawal of recognition must be assessed. In sum, the
evidence shows that the Board had found that the Respondent had previously
violated the Act by refusing to bargain in good faith with the
B. The Information Requests
The Respondent does not contest the nature of the
1. American Golf Corporation d/b/a Badlands Golf Course is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Laborers’ International Union of North America, Local 872, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (5) of the Act.
4. The foregoing unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended5
Remedy
In light of the Respondent’s having for a second time unlawfully
withdrawn recognition of the Union and having failed to fully comply with the
Board’s extant bargaining order, I find that an affirmative bargaining order,
the traditional remedy for a refusal to bargain with the certified
representative of employees, is warranted.
Caterair International, 322
NLRB 64 (1996). Moreover, for the
reasons set forth in Horizon House
Developmental Services, 337 NLRB 22, 26–27 (2001), were it necessary to
balance employees’ Section 7 rights with whether other purposes of the Act
might override the rights of employees to choose their bargaining
representatives and whether alternative remedies are adequate to remedy the
Respondent’s violations, an affirmative bargaining order would also be required. In addition, the Respondent shall provide the
information requested by the
The Respondent, American
Golf Corporation d/b/a Badlands Golf Course,
1. Cease and desist from
(a) Refusing to
bargain in good faith with the Laborers’ International Union of North
America, Local 872, AFL–CIO.
(b) Unlawfully withdrawing recognition from the
(c) Refusing to supply the
(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 effectuate the policies of the Act.
(a) On request, bargain with the Laborers’ International Union of North America, Local 872, AFL–CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:
All regular full-time and regular part-time groundskeepers,
mechanics, irrigators, and crew leaders employed by the Respondent at its
Badlands Golf Club located in
(b) Provide the
(c) Within 14 days after service by the Region, post at
its facility in
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX