BadLands Golf Course

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 28 264 American Golf Corporation d/b/a Badlands Golf Course and Laborers’ International Union of North America, Local 872.1 Cases 28–CA–18753, 28–CA–18757, 28–CA–18856, and 28–CA–19075 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 Re- spondent and the General Counsel each filed an answer- ing 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, find- ings,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 Un- ion 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 Las Ve- gas, Nevada. Following the Union’s certification, the parties engaged in negotiations for a collective- bargaining agreement until August 2000, at which time, according to the uncontroverted testimony of Respon- dent’s attorney and negotiator, Daniel Fears, the Union “went away.” In January 2002, the Union requested that the parties resume negotiations. In response, the Re- spondent withdrew recognition from the Union on Feb- ruary 8, 2002. By unpublished Order dated November 8, 2002, the Board adopted an administrative law judge’s decision (to which no exceptions had been filed) finding that the Respondent had violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and by refus- ing to provide relevant requested information. The 1 We have amended the caption to reflect the disaffiliation of Labor- ers’ International Union of North America from the AFL–CIO effective June 1, 2006. 2 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Board’s Order, inter alia, directed the Respondent to bar- gain in good faith with the Union. 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 com- plete collective-bargaining agreement.4 Specifically, the Union wanted to include, as an addendum to the contract, a table setting forth the current wage rates of the unit employees,5 and the Respondent objected to the inclusion of such a table. Fears testified that the parties were at “loggerheads” over this issue. Nonetheless, both Fears and the Respondent’s director of human resources testi- fied that Fears told Vaughn on May 16, that the Respon- dent would continue to consider the Union’s proposal to include such a table. This is where matters stood on May 23, when the Re- spondent 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 affili- ated 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 decer- tification petition that the employees had filed with the Board. Sometime between June 10 and 15, the Respondent withdrew recognition from the Union. At the hearing in this proceeding, the parties stipulated that, from the time that the Respondent received the employees’ petitions on May 23, to the date of the Respondent’s withdrawal of 3 Unless otherwise indicated, all dates hereinafter are in 2003. 4 The Respondent contends that the parties at that time also disputed whether they had agreed that ratification of any negotiated agreement was a condition precedent to the contract’s execution. The Respondent claims that, at some prior point during the negotiations, the parties had agreed that any negotiated agreement would be submitted to the em- ployees for ratification. The record, however, does not contain suffi- cient evidence to allow us to determine whether the parties had in fact so agreed. Although Fears testified that the Union previously had agreed to employee ratification, he also conceded that the Union’s chief negotiator, George Vaughn, took the position that the parties had not so agreed. Similarly, Respondent’s human resources manager simply testified that, whereas Vaughn was of the view that the negotiated agreement did not need to be ratified by the employees, Fears was of the contrary opinion. 5 The Union included the “current wage rates” table in a “final” draft contract that it sent to the Respondent on May 19, for approval. BANDLANDS GOLF COURSE 265 recognition, the sentiment of the employees as reflected in the petitions did not change. On or about June 3, the Union requested the following information from the Respondent: unit employees’ names, addresses, phone numbers, dates of hire, rates of pay, and job classifications. The Respondent did not provide the requested information or otherwise respond to the Union’s request. On June 25, the Union reiterated its June 3 request. Again, the Respondent neither pro- vided the information nor otherwise responded. Finally, on October 9, the Union sent the Respondent another request for information. Again, the Respondent did not provide any of the requested information. 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 nego- tiations 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 Union with requested information. The Respondent excepts to these findings. For the reasons stated below, we find merit in these exceptions and we dismiss the complaint.6 Discussion In Lee Lumber, supra, the Board reconsidered and modified the standard by which it determines what con- stitutes 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 bar- gaining in good faith—during which the union’s majority status cannot be questioned. 334 NLRB at 402. Recog- nizing 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 6 We reject as lacking in merit the Charging Party’s contention that Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), should be interpreted to prohibit an employer from withdrawing recognition when a petition for a representation election is pending. Indeed, the Levitz Board itself considered and rejected a similar contention. Id. at 725– 726. The Charging Party has not proffered any argument to support its alternative contention that Levitz should be overruled. Chairman Battista and Members Schaumber and Kirsanow express no view as to whether Levitz was correctly decided, i.e., that only proof of an actual loss of majority support will privilege a withdrawal of recognition. They agree, however, that a pending petition before the Board would clearly not render such a withdrawal unlawful under Levitz. extended to as much as 1 year, depending on the follow- ing case-specific factors: (1) whether the parties are bar- gaining 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 par- ties began to bargain and the number of bargaining ses- sions; (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 pe- riod 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 cor- rectly 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 evi- dence that the parties’ bargaining processes were com- plex. 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 Union “walked away” from bargaining in August 2000. Adding that time to the time period during which the parties bargained after the Board issued its November 2002 Order, the parties engaged in bargaining over the course of approximately 14 months. In addition, the lack of bargaining for the 17 months from August 2000 to January 2002 was due to the Un- ion’s abandonment of negotiations. We recognize that only the “wage table” issue re- mained unresolved at the time of withdrawal of recogni- tion. 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 is- sue. 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 7 Lee Lumber, supra at 405. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266 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 bar- gaining 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 pe- riod being measured begins with the employer’s bargain- ing 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 ap- plying 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 in- herently 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 par- ties 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 bargain- ing prior to the remedial bargaining period the reason- ableness of which we are attempting to judge. Thus, to make analytically meaningful the language in Lee Lum- ber directing the Board to consider the “amount of time elapsed since the parties began to bargain,” it is neces- sary to take into consideration the total amount of time devoted to bargaining. Notwithstanding the dissent’s assertions to the con- trary, we are not saying that the “reasonable period” in- cludes pre-remedial bargaining. We are saying that the duration of pre-remedial bargaining is relevant to deter- mining 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 with- 8 We do not suggest, however, that the Lee Lumber analysis neces- sarily will turn on factor-counting in all cases. We do not foreclose the possibility that, in an appropriate case, an extension of the insulated period beyond 6 months might be warranted despite a numerical major- ity of factors leaning the other way, or conversely that the insulated period should be limited to 6 months despite a numerical majority of factors favoring an extension, where one or both “minority” factors prove sufficiently compelling to warrant such an outcome. drawal did no damage to the bargaining relationship. We find simply that the earlier bargaining should not be ig- nored in determining whether to require further bargain- ing 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 reason- able time has elapsed, whereas “relatively little passage of time beyond the 6-month period” supports the oppo- site finding. 334 NLRB at 405. The dissenters appar- ently believe that this language supports the view that events occurring after the 6-month period are to be con- sidered 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” analy- sis. Lee Lumber is simply silent as to pre-remedial bar- gaining, 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. Id. at 399. Thus, the issue presented here was not raised in Lee Lumber.9 In concluding, under the circumstances of this case, that the parties bargained for a reasonable period of time following their November 2002 resumption of negotia- tions, 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 sub- stantial bargaining between the parties in addition to the bargaining that began in November 2002 inclines us to 9 Contrary to the dissent’s characterization, our analysis does not read any language out of Lee Lumber, nor does it “def[y]” that deci- sion’s “clear instructions.” We accept the teaching of Lee Lumber that the duration of bargaining beyond the 6-month insulated period is rele- vant to the “reasonable time” analysis. And where, as in Lee Lumber, the only bargaining is remedial bargaining, it is self-evident that the Board has nothing else to go on in assessing the “passage of time” factor other than the longer or shorter duration of that bargaining be- yond the 6-month mark. But we reject the inference the dissent draws from this teaching, namely, that where, as here, the parties did engage in significant pre-remedial bargaining, its duration is per se irrelevant to the “reasonable time” analysis—no matter how long such bargaining continued (here, 8 months), no matter how it was conducted (no party suggests that the Respondent bargained during that time other than in good faith), and no matter how it was interrupted (here, by the Union’s unexplained decision to walk away from the bargaining table for well over a year). In sum, the dissent relies on an implied meaning of cer- tain language in Lee Lumber, ungrounded in the facts of that case, which is questionable analytically (as no period of time is inherently reasonable or unreasonable), and which, given effect here, would un- duly burden the right of employees to deselect a bargaining representa- tive they no longer want. We decline to do likewise. BANDLANDS GOLF COURSE 267 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 ignor- ing 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 sugges- tion that our ruling effectively creates a per se 6-month insulated period. Notwithstanding the dissent’s pro- fessed 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 rele- vant. 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 Union that walked away from bargaining from August 2000 to January 2002. 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 insu- lated period beyond 6 months. We therefore dismiss the allegation that the Respondent’s withdrawal of recogni- tion was unlawful. Further, because that withdrawal was lawful, we also dismiss the allegation that the Respon- dent unlawfully failed and refused to provide information requested by the Union. ORDER The complaint is dismissed. MEMBERS LIEBMAN AND WALSH, dissenting. The Respondent has now withdrawn recognition from the Union twice. After being ordered back to the bar- gaining table by the Board, it withdrew recognition the second time less than 3 weeks after the minimum 6- month period of insulated bargaining during which a union’s majority status cannot be questioned. The with- drawal occurred when the parties were not at impasse, and after they had reached agreement on all but one mi- nor term for a first collective-bargaining agreement. On those facts, the judge correctly found that a reasonable time for bargaining had not elapsed. Accordingly, and because the majority’s reversal of the judge represents a fundamental rejection of the principles set forth in Lee Lumber,1 we dissent from the majority’s dismissal of the complaint. 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 chal- lenged, 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 be- ing broken, it must be given a reasonable time to work and a fair chance to succeed’ before the union’s represen- tative status can properly be challenged.” Id. at 401 (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944)). That “reasonable time” allows the union to “prove its mettle in negotiations, so that when its repre- sentative status is questioned, the employees can make an informed choice, without the taint of the employer’s prior unlawful conduct.” Id. at 405. Until that time has elapsed, the Board stated, employees are unable to exer- cise “free choice.” Id. at 401 (emphasis original, fn. omitted). 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 represen- tative 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.” Id. at 402 (emphasis in original, fn. omitted).3 The Board 1 Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002). 2 Id. at 401 and fn. 28. 3 Those factors are as follows: (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 bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and the parties’ prox- imity to agreement; and (5) whether the parties are at impasse. Id. at 402. All of the factors “must be considered together, and none is dis- positive individually or necessarily entitled to special weight.” Id. at 405. Lee Lumber held that once the initial 6-month insulated period has passed, the burden is on the General Counsel to prove, under this multi- factor analysis, that a reasonable time has not passed. Id. at 405. In his partial dissent, Member Walsh stated that he would not assign the burden of proof to the General Counsel. Id. at 405 fn. 54. Neverthe- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268 chose 6 months because, in Lee Lumber, the parties were negotiating a renewal contract, and the Board was per- suaded by data collected by the Federal Mediation and Conciliation Service that 6 months “approximates the time typically required for employers and unions to ne- gotiate renewal collective-bargaining agreements.” Id. at 402. The Board observed, however, that “[i]nitial bar- gaining typically involves special problems,” and that the FMCS data showed that bargaining for an initial con- tract, when successful, typically took almost twice as long. Id. at 403.4 Whether the bargaining is for an initial contract is therefore one of the case-specific factors iden- tified in Lee Lumber as weighing against limiting the reasonable time to the 6-month minimum. Id. at 403; see also id. at 402 fn. 34. Another factor is passage of time and the number of bargaining sessions that have occurred. Id. at 404. The Board made plain in Lee Lumber that this factor refers to the passage of time and the number of bargaining ses- sions occurring after the resumption of good-faith bar- gaining following the unlawful withdrawal of recogni- tion. See id. at 399 fn. 6 (The “reasonable period” begins when the offending employer commences bargaining in good faith.); id. at 405 (factors tending to establish that a reasonable time has elapsed include “the passage of a relatively long period of time after the 6-month insulated period”).5 Thus, the “reasonable period” does not in- clude bargaining that took place prior to the employer’s unlawful withdrawal of recognition. This is consonant with the fundamental balance articulated in Lee Lumber: to allow the union’s majority status to be challenged, but only after ensuring that the union has been given “a fair chance to succeed” (id. at 403) in renewed bargaining free of the lingering effects of the employer’s unlawful conduct. Id. at 405 (employees can “make an informed less, Member Walsh agrees that the General Counsel met that burden here. 4 Among other things, the Board pointed out that “[w]hen parties are negotiating for an initial contract, the ‘reasonable time’ for bargaining is longer because of difficulties often encountered in hammering out fundamental procedures, rights, wage scales, and benefit plans in the absence of previously established practices.” Id. at 403 (internal cita- tion and fn. omitted); see also fn. 41. 5 See also AT Systems West, Inc., 341 NLRB 57, 62 (2004) (in evaluating whether there had been a reasonable time for bargaining pursuant to a settlement agreement, the Board rejected the judge’s finding that the parties’ extensive presettlement bargaining had reached a dead end even before the settlement agreement; the Board empha- sized that “[t]he critical time period for determining whether there was a reasonable time to bargain starts from the date of the approval of the settlement agreement”); cf. Federal Pacific Electric Co., 215 NLRB 861 (1974) (a bargaining order “requires bargaining for a reasonable period of time, determinable in each case by the bargaining issues and the circumstances which evolve once negotiations have been resumed”) (emphasis supplied). choice” only when “the taint of the employer’s prior unlawful conduct” has been eliminated). II. The majority’s decision turns its back on the foregoing principles, misapplies Lee Lumber, and reaches an erro- neous result. First, the majority all but disregards the fact that the parties were bargaining for an initial con- tract. Second, the majority attempts an end run around the passage-of-time factor by relying heavily on the par- ties’ 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. Id. at 403.6 The majority’s failure to attach any real significance to this factor is a fundamental error.7 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 or- der, because they had previously bargained from Decem- ber 1999 to August 2000, before the first unlawful with- drawal of recognition in February 2002. The majority “add[s]” that period of earlier bargaining to the resumed 6 Cf. N.J. MacDonald & Sons, Inc., 155 NLRB 67, 71–72 (1965) (emphasizing the “special problems” usually involved in initial contract bargaining and concluding that 6 months was not a “reasonable time” for bargaining after a settlement agreement, where the parties were negotiating an initial contract, held nine bargaining sessions and were not at impasse, and only two issues remained in dispute). 7 It is no answer to say, as the majority does, that the initial contract factor is entitled to less weight here because the parties bargained for 8 months before the first unlawful withdrawal of recognition and because the issues were not complex. The majority makes that assertion in a purported attempt to consider the initial contract factor “in relation to, not in isolation from,” other factors, such as the passage of time and complexity factors, both of which the majority finds favor the Respon- dent. As we show below, the majority’s conclusion that the passage-of- time factor favors the Respondent here is flatly erroneous. But even if that were not so, the majority’s linguistic legerdemain does not hide the fact that it is virtually ignoring the significance of the distinction that the Board in Lee Lumber drew between first contract and renewal con- tract bargaining. We agree that the Lee Lumber factors must be consid- ered together and that none is dispositive individually. Id. at 405. But it is one thing to consider the factors as a whole—”in relation to” each other—and quite another to interpret one factor in a manner that disre- gards another altogether. BANDLANDS GOLF COURSE 269 negotiations and finds that “the parties engaged in bar- gaining 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 man- ner contrary to its plain language and animating princi- ples. First, as shown above, Lee Lumber states that the “rea- sonable time” for bargaining commences when the re- spondent 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 be- yond the 6-month period” weighs against finding that a reasonable time has elapsed. Id. at 405 (emphasis sup- plied). Conversely, “the passage of a relatively long pe- riod of time after the 6-month period” tends to establish that a reasonable time has elapsed. Id. (emphasis sup- plied). 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 with- drawal 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” bargain- ing 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” fac- tor. 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 relation- ship. When an employer unlawfully withdraws recogni- tion, the relationship has been “broken” and must be re- stored. Id. at 401. The essential issue in a Lee Lumber case is “whether the union has had enough time to prove its mettle in negotiations,” so that employees may exer- cise their free choice “without the taint of the employer’s prior unlawful conduct.” Id. at 405. It should be obvious that bargaining that occurred before an unlawful with- drawal of recognition cannot erase the taint from that violation.8 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 be- low). 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 8 The majority’s argument that the pre-remedial bargaining itself was in good faith and therefore was not “tainted” misses the point. The February 2002 unlawful withdrawal of recognition tainted the bargain- ing relationship—a point the majority does not dispute. The majority also contends that our application of Lee Lumber’s lan- guage concerning the passage of time would “unduly burden” the em- ployees’ right to “deselect” their bargaining representative. That argu- ment is circular. The issue in a Lee Lumber case is whether the union has had sufficient time to “prove its mettle in negotiations.” If the union has had sufficient time, then requiring additional time could affect employees’ freedom of choice. However, whether the union has had sufficient time (and, therefore, whether additional time would burden employee free choice) is determined by applying the Lee Lum- ber factors. Thus one cannot conclude, as the majority does, that our reading of Lee Lumber would unduly burden employee rights. 9 Although the withdrawal of recognition occurred after the insulated 6-month period, the Respondent apparently relied on evidence of em- ployee disaffection received during the 6-month period. The judge rejected the argument of the General Counsel and Charging Party that the withdrawal of recognition was unlawful under Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002) (holding that an employer cannot withdraw recognition from a union following the expiration of the certification year based on an antiunion petition received by the employer during the certification year). Because nei- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270 Finally, contrary to the majority, the amount of pro- gress 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.” Id. at 404. Here, the parties had made sub- stantial progress towards their first complete collective- bargaining agreement. The sole remaining term in dis- pute was the Union’s proposal to include a table showing unit employees’ current wage rates. Although the Re- spondent objected to including the table in the contract, it is undisputed that the Respondent agreed to consider the Union’s proposal.10 On these facts, the General Counsel has shown “a strong likelihood that a contract can be reached in the near future.” Id. at 405. 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 sup- port 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 ther the General Counsel nor the Charging Party excepted to the judge’s rejection of that argument, we do not pass on it. In addition, we do not pass on the Charging Party’s argument that an employer should not be permitted to withdraw recognition when an election petition is pending. 10 Although each party to a labor negotiation is, of course, entitled to decide for itself how strenuously to insist on any given proposal, we seriously doubt that the proposal to include the current wage rates in the printed collective-bargaining agreement would have been a dealbreaker for either the Respondent or the Union. The majority’s contrary con- clusion, that the General Counsel did not show that “a bit more time for negotiations” would likely be fruitful, flies in the face of our experience of collective-bargaining, if not common sense. 11 The two Lee Lumber factors not analyzed above are whether the parties were at impasse and a consideration of the complexity of the issues and bargaining processes. The majority concedes that there was no impasse. As to the second of the two factors, the majority concludes that the complexity factor favors the Respondent, because the judge stated that the contract did not appear to be “excessively complicated.” The judge, however, also observed that the parties had had “many issues to discuss and agree upon.” In any event, even assuming this one factor favors the Respondent, it surely does not overcome the com- bined weight of all the other factors, each of which points in favor of extending the reasonable time period. 12 After the decision in the present case, it is difficult to imagine any case in which the current Board majority would extend the reasonable period for bargaining beyond the 6-month minimum. “Thus, the Board’s . . . standard, although ostensibly a highly fact-dependent total- decision that the Respondent’s withdrawal of recognition violated Section 8(a)(5) and (1) of the Act.13 Winkfield F. Twyman Jr., Esq., for the General Counsel. Daniel F. Fears, Esq. and Jeffrey K. Brown, Esq., for the Re- spondent. David A. Rosenfeld, Esq., for the Charging Party Union. 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 Union in violation of Section 8(a)(1) and (5) of the National Labor Relations Act.2 On the entire record, including my observation of the demeanor of the witnesses, and after considering the oral arguments and briefs filed by the parties, I make the following findings of fact I. JURISDICTION The Respondent, a California corporation, owns and operates a golf course in Las Vegas, Nevada. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND On December 9, 1999, the Union was certified by the Board as the collective-bargaining agent of the employees in the fol- lowing appropriate unit: All regular full-time and regular part-time groundskeepers, mechanics, irrigators, and crew leaders employed by the Re- spondent at its Badlands Golf Club located in Las Vegas, Ne- vada; excluding all other employees, pro-shop workers, food and beverage workers, office clerical employees, casual and temporary employees, guards and supervisors as defined in the Act. Shortly after the Union was certified the parties began bar- gaining but no agreement was ever reached. On March 25, ity-of-the-circumstances test, approaches a per se rule in application . . . .” Flynn, The Costs and Benefits of “Hiding the Ball”: NLRB Policymaking and the Failure of Judicial Review, 75 B.U.L.Rev. 387, 395, quoted in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359, 372–376 (“It is hard to imagine a more violent breach of [reasoned decisionmaking] than applying a rule of primary conduct or a standard of proof which is in fact different from the rule or standard formally announced . . . . [T]he Board must be required to apply in fact the clearly understood legal standards that it enunciates in principle . . . .”). 13 Because we would find the withdrawal of recognition unlawful, we would also adopt the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by failing to provide the Union with requested information about the unit employees’ terms and conditions of em- ployment. 1 This matter was heard at Las Vegas, Nevada, on November 20, 2003. The parties filed their briefs on January 21, 2004. All dates in this decision refer to 2003, unless otherwise stated. 2 29 U.S.C. Sec. 158 (a)(1) and (5). BANDLANDS GOLF COURSE 271 2002, the Union filed unfair labor practice charges against the Respondent in Case 28–CA–17833. The key issue presented in that matter was whether the Respondent had unlawfully with- drawn recognition from the Union as the representative of its unit employees. That case was ultimately litigated and on Sep- tember 16, 2002, Judge Mary Miller Cracraft, issued her deci- sion in JD(SF)-69-02. Her decision found that the Respondent did violate Section 8(a)(1) and (5) of the Act by withdrawing recognition from the Union on February 8, 2002, and by failing to furnish the Union with certain relevant and necessary infor- mation it had requested. Judge Cracraft recommended that the Board order the Respondent to recognize and bargain with the Union as the exclusive representative of the unit employees. Additionally, the Respondent was ordered to provide informa- tion to the Union that it had requested for purposes of collec- tive-bargaining. No exceptions were filed to Judge Cracraft’s decision and on November 8, 2002, the Board issued its Order adopting that decision and directing that the Respondent bar- gain in good faith with the Union. 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 Union. The Respondent was represented by its attorney, Daniel Fears, and human resources manager, Kelly Howard.3 The parties met six to eight times for negotiations and additionally negotiated matters in several telephone conversations. 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 adden- dum “B” of the agreement. Vaughn accepted the changes of- fered 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 fi- nal 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 em- ployees. 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 Union’s final proposal. Fears testified similarly at the hearing in reference to the May 16 conference call (Tr. 72): 3 I find that the record evidence shows that at all relevant times, Daniel F. Fears, was the Respondent’s labor attorney and an agent of the Respondent within the meaning of Sec. 2(13) of the Act. A. I believe we had a phone conference around that date, and May 16th sounds about right. . . . I may have said I will con- tinue 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 Union. The letter noted Vaughn’s understanding that “nothing in this agreement has been altered or modified other than what was mutually agreed in our negotiations sessions.” Addendum “B” of the agreement consists of a page of wage rates and classifications. The page has a column of wage minimum(s) and another column listing the employees’ current wages. 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 misrepre- sented 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 sen- timent of a majority of the employees in the unit regarding un- ion 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 re- quest for information from the Union. 4. On or about June 10 to 15 the Respondent withdrew rec- ognition of the Union and so advised the Union. 5. From the time of the petition to the time of the withdrawal, the sentiment of the unit employees as reflected in the hand- written petitions of May 23 did not change. Fears testified that the Parties were not able to reach agree- ment on the inclusion of the “current wages” section of the proposed contract. He, therefore, concluded that the Parties were at an impasse. The Union’s June 3 request for information sought the fol- lowing details concerning unit employees: employees’ name, address, phone number, date of hire, rate of pay, and job classi- fication. The Respondent did not give the Union the requested information. On or about June 25, Vaughn sent a letter by FAX and mailed it to Fears requesting the same information asked for in the June 3 letter. The record does not reflect that the Respondent ever responded to the June 25 letter. On October 9, David A. Rosenfeld, the Union’s attorney, sent a letter to Fears requesting an updated list of the employees, their phone num- bers and addresses, a copy of all discipline imposed upon em- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272 ployees for the period January 1, 2003, to the present, employee handbook, any summary plan descriptions or benefit plans ap- plicable to the employees and any workers compensation pol- icy. The record does not show that the Respondent ever replied to this letter. 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 inappropri- ate for the Company to negotiate with [the Union] and ulti- mately execute any proposed agreement, even if it found no objection to the terms. (GC Exh. 2(a), p. 5.) III. ANALYSIS A. Withdrawal of Recognition The Respondent asserts that because the Union no longer had the support of the majority of the unit employees it was privi- leged to withdraw recognition. It argues that this conclusion is supported by its several months of bargaining with the Union that had not resulted in an agreement at the time the Respon- dent withdrew recognition. The Respondent makes the point that it did not initially rely on the decertification petitions it received from the employees on May 23; rather it waited ap- proximately 3 weeks before it withdrew recognition—more than 6 months after the commencement of bargaining. The Respondent urges that it was privileged to withdraw recogni- tion because of the Board’s decision in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001) (An employer may unilater- ally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees), and because it had engaged in a reasonable period of bargaining. The Government argues that the Respondent was not privi- leged to withdraw recognition because the parties had not bar- gained for a year from the date the parties first met on Novem- ber 26, 2002. The Government asserts that this case is con- trolled 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 Chelsea to be distinguishable from the present case. In Chelsea, the bargaining had taken place for a year after certifi- cation but the Respondent relied on a decertification petition received during that year as the basis for withdrawing recogni- tion. In the present case the background evidence shows that the Parties had engaged in bargaining after the Union’s Decem- ber 9, 1999 certification. They never reached an agreement and the Respondent first withdrew recognition of the Union on February 8, 2002—over 2 years after certification. Ultimately the Respondent was found to have violated Section 8(a)(1) and (5) because it withdrew recognition without proving that the Union had actually lost its majority support. Additionally, the Respondent violated the Act by not supplying the Union with information that it requested on January 25, 2002. Fears’ gave uncontroverted testimony in the present hearing that the parties had bargained “for a long period of time” after the certification until the Union “simply went away.” There was no allegation in the earlier case that those negotiations were in bad faith or in any manner violated the Act. As noted in Judge Cracraft’s decision, “No bargaining sessions have been held since August 2000.” Thereafter nothing occurred until the Union sought to resuscitate bargaining in January 2002, when it sent a letter to the Respondent seeking to resume negotiations. Although Union Agent Vaughn was in attendance at the hearing in the present case he did not testify and the Un- ion offered no evidence to controvert Fears’ testimony concern- ing the essence and extent of the negotiations that preceded the Board’s bargaining order. I further note that nothing in the Judge’s Decision or the Board’s Order speaks to extending the bargaining year—a standard requirement in certification year situations. Van Dorn Plastic Machinery Co., 300 NLRB 278, 279 (1990) (“Absent unwarranted delay by the union, the certi- fication year after an employer’s initial refusal to bargain com- mences on the date of the parties’ first bargaining session.”); Straus Communications v. NLRB, 625 F.2d 458 (2d Cir. 1980); Gulf States Mfrs. v. NLRB, 598 F.2d 896 (5th Cir. 1979); Mar- Jac Poultry Co., 136 NLRB 785 (1962), enfd. 939 F.2d 402 (6th Cir. 1991). See also, Board’s Unfair Labor Practice Case- handling Manual, Sections 10142.5, 10166(b), and 10168. I find that the Government has failed to show by a preponder- ance of the evidence that the Parties’ 1999–2000 negotiations did not satisfy the certification year rule of 12 months of unen- cumbered good-faith bargaining. I conclude, therefore, that Chelsea is not controlling in the present matter. The next point for examination is whether the Respondent’s withdrawal of recognition in the present case otherwise frus- trated 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 em- ployer has unlawfully failed to bargain with an incumbent un- ion 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 con- tract, the Board recognizes the attendant problems of estab- BANDLANDS GOLF COURSE 273 lishing initial procedures, rights, wage scales, and benefits in determining whether a reasonable time has elapsed. Ford Center for the Performing Arts, [328 NLRB 1, 3 (1999)]; N. J. MacDonald & Sons, Inc., [155 NLRB 67, 71–72 (1965)]. The Board also recognizes that establishing such initial pro- cedures and contract terms may take time that is not required in those instances where “a bargaining relationship has been established over a period of years and one or more contracts have been previously executed.” N. J. MacDonald & Sons, supra at 72. The Board has also expressed its reluctance to negate good-faith bargaining for an initial contract when the parties’ efforts are on the verge of reaching finality. Ford Center for the Performing Arts, supra, slip op. at 2. 2. The complexity of the issues being negotiated and the procedures adopted for bargaining. As this was an initial con- tract there was no history or existing contract to guide the Par- ties 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 recog- nition in the period June 10–15, 2003. 4. Proximity to agreement. The Parties had made substan- tial progress in their negotiations. The proposal signed by the Union on May 16 left only the “current wages” inclusion as an issue. (CP Exh. 1.) This was a matter which Fears told the Union that he would take under consideration. 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 Con- crete, 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 will- ing 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 nego- tiations, 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 Cen- ter 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 Union after it re- ceived the employees’ petition. In order to resolve this issue, we must determine whether a reasonable period of time had elapsed from the date of execution of the settlement agree- ment to the refusal to bargain. As the Board stated in Poole Foundry & Machine Co., 95 NLRB 34, 36 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952): It is well settled that after the Board finds that an employer has failed in his statutory duty to bar- gain 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 major- ity status of the union during that period. . . . . . . . The determination of what constitutes “a reasonable time” de- pends 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 nego- tiated a collective-bargaining contract. The Union and Re- spondent met in nine bargaining sessions over a 6-month pe- riod after the execution of the settlement agreement during which progress was made in reaching an agreement. At the last bargaining session preceding the refusal to bargain, all that remained in dispute were the amount of wage increase and a union-security provision. No indication was given at this or at any other time that an impasse had been reached in the negotiations. Indeed, it appears that such substantial pro- gress had been made at the time of the refusal to bargain that the parties had reduced their agreement to writing, and the Union had announced that it would submit Respondent’s of- fers on the wage increase and union security, the last issues in dispute, to the employees for their approval. And the parties had agreed to meet again. To say, as Respondent contends, that the 6 months during which it bargained was a reasonable period would be to ignore completely the fruitful negotiations during those months. It would ignore, also, the fact that these were negotiations for an initial contract which usually involve special problems, such as in the formulation of contract lan- guage, which are not present if a bargaining relationship has been established over a period of years and one or more con- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274 tracts have been previously executed. Accordingly, we find that a reasonable time had not elapsed after the effective date of the settlement agreement when Respondent refused to bar- gain with the Union. The Parties in the present case were close to agreement on the initial contract. The remaining issue of including the em- ployees’ 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 Union that he agreed to take the “current wage” matter under consideration. Balancing the cited factors and case law speaking to the subject, I find that the Parties had not bargained for a reasonable period of time sufficient to empower the Respondent to withdraw recognition. Lee Lumber, supra. 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 Re- spondent seems to see this as sufficient to meet the require- ments 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 ‘peti- tion,’ but upon the stipulated fact that, at all times from May 23 through June 10–15, a majority of the employees did not sup- port the Union.” (R. Br. p. 9.) I find this argument disingenu- ous. Fears’ prehearing position statement to the Region states that, “Faced with a petition signed by an overwhelming number of the employees . . . this Union no longer represented a major- ity 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.) I find that the Respondent did rely on the May 23 petitions as a major reason for withdrawing recognition on June 10–15. The Respondent also argues that the Union agreed to submit any agreement to ratification by the employees and this was never done. It makes the point that this is one reason nothing had been finalized between the parties. I find this to be a circu- lar argument in light of the Respondent’s other contention that the Parties had never agreed upon a final contract. Fears admit- ted as much when he testified: 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 mat- ter 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 unilater- ally 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 bar- gain in good faith with the Union. Thereafter, the Respondent did bargain with the Union for approximately 5 months before it received decertification petitions from a majority of its em- ployees. The Respondent relied upon these petitions as an im- portant factor in withdrawing recognition from the Union. At the time of withdrawal of recognition the Parties were very close to an agreement on the terms of the initial collective- bargaining agreement and it has not been shown that final agreement was not possible. The Board has emphasized many times that, “from the earliest days of the Act, the Board has sought to foster industrial peace and stability in collective- bargaining relationships, as well as employee free choice, by presuming that an incumbent union retains its majority status.” Levitz, supra at 720. I find that the employees expressions of nonsupport for the Union on May 23, do not overcome the Board’s mandate that unencumbered bargaining be given an opportunity to succeed for a reasonable period to time where the employer has been the cause of the delay in accomplishing good-faith bargaining because of its prior unfair labor practices. I conclude that based on the record as a whole, and in light of the noted case law, that the Government has proven by a pre- ponderance of the evidence that in June 2003, the Respondent prematurely and unlawfully withdrew recognition of the Union as the bargaining agent of the unit employees. I find that the Respondent’s withdrawal of recognition was a violation of Section 8(a)(1) and (5) of the Act. B. The Information Requests The Respondent does not contest the nature of the Union’s requests for information relating to unit employees as set forth above. It did, however, take the position that it was not re- quired to supply such information because of its position that the Union no longer represented a majority of the employees. Having found that the Respondent did unlawfully withdraw recognition from the Union, I further find that the information the Union requested is reasonable and necessary for it to carry out its representative duties. I conclude that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to pro- vide the information requested by the Union in its June 3, 25, and October 9 letters. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). BANDLANDS GOLF COURSE 275 CONCLUSIONS OF LAW4 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, Lo- cal 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 la- bor practices affecting commerce within the meaning of Sec- tion 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 4 A motion made on the record by counsel for the General Counsel to withdraw par. 6(e) of the complaint (refusal of access to union repre- sentatives on May 29, 2003) was granted. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the REMEDY In light of the Respondent’s having for a second time unlaw- fully 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 employ- ees, 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 employ- ees to choose their bargaining representatives and whether al- ternative remedies are adequate to remedy the Respondent’s violations, an affirmative bargaining order would also be re- quired. In addition, the Respondent shall provide the informa- tion requested by the Union on June 3, 25, and October 9, 2003. [Recommended Order omitted from publication.] Board and all objections to them shall be deemed waived for all pur- poses.