Badlands Golf Course

BADLANDS GOLF COURSE 355 NLRB No. 42 251 American Golf Corporation d/b/a Badlands Golf Course and Laborers’ International Union of North America, Local 872. Cases 28–CA–18753, 28–CA–18757, 28–CA–18856, and 28–CA–19075 June 10, 2010 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND PEARCE On July 19, 2007, the National Labor Relations Board issued a Decision and Order in this proceeding, in which it held that the Respondent did not violate Section 8(a)(5) of the Act when it withdrew recognition from the Labor- ers International Union of North America, Local 872 (the Union), based on an employee decertification petition and thereafter refused to provide requested bargaining information.1 The Board concluded that a reasonable time for protected bargaining pursuant to a prior Board remedial Order had elapsed before the Respondent law- fully withdrew recognition. Subsequently, the Union petitioned the United States Court of Appeals for the Ninth Circuit for review of the Board’s decision. On April 20, 2009, the Ninth Circuit granted the petition for review and remanded this case to the Board “for further proceedings.”2 On October 27, 2009, the Board notified the parties that it had decided to accept the court’s remand and that all parties could submit statements of position with re- spect to the issues raised by the remand. The Union filed a statement of position. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board accepts the court’s remand as the law of the case. Consistent with that remand, we find that a reason- able period of time for bargaining had not elapsed when the Respondent withdrew recognition. Accordingly, the Respondent was not privileged to challenge the Union’s continuing majority status at that time, and its with- drawal of recognition and refusal to provide requested bargaining information violated Section 8(a)(5) of the Act. Facts The Union was certified as the bargaining representa- tive of the maintenance employees at a golf course oper- ated by the Respondent in Las Vegas, Nevada, in De- cember 1999. The parties bargained for 8 months until the Union abandoned the negotiations in August 2000. In January 2002, the Union returned and requested re- 1 350 NLRB 264 (2007) (Members Liebman and Walsh dissenting). 2 Laborers, Local 872 v. NLRB, 323 Fed. Appx. 523, 2009 WL 1059916 (9th Cir. 2009) (unpublished memorandum opinion). sumption of bargaining, but the Respondent refused and withdrew recognition on February 8, 2002. On Novem- ber 8, 2002, in the absence of exceptions, the Board adopted an administrative law judge’s findings that the Respondent’s refusal to bargain and withdrawal of rec- ognition were unlawful. The Board ordered the Respon- dent to bargain with the Union. The parties resumed bargaining on November 26, 2002, and met about six to eight times over the next 6 months. They agreed on all the terms of a contract, ex- cept for being “at loggerheads,” but not at impasse, over the Union’s proposal to include a table of the employees’ current wage rates in the contract. On May 23, 2003, the Respondent received a petition from 17 of the 19 unit employees stating they no longer wished to be represented by the Union. That day, the Respondent also received a copy of a decertification peti- tion employees had filed with the Board. The parties continued their discussions until the Respondent with- drew recognition from the Union sometime between June 10 and 15. The parties stipulated that the expression of employee disaffection as of May 23 was unchanged when the Respondent withdrew recognition. On June 3 and 25 and October 9, 2003, the Union re- quested the following bargaining information from the Respondent: unit employees’ names, addresses, phone numbers, dates of hire, rates of pay, and job classifica- tions. Consistent with its withdrawal of recognition, the Respondent did not provide the requested information or otherwise respond to the Union’s request. Board Decision In Lee Lumber & Building Material Corp., 334 NLRB 399, 402 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002), the Board held that a “reasonable period of time” for bar- gaining pursuant to an affirmative bargaining order remedying an employer’s refusal to bargain with an in- cumbent union should be at least 6 months, during which the union’s majority status could not be challenged. It further held that this insulated bargaining period may be extended up to a year based on five case-specific factors: (1) whether the parties are bargaining for an initial con- tract; (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 pro- gress made in negotiations and the parties’ proximity to agreement; and (5) whether the parties are at impasse. In the Board’s prior Decision and Order in this case, a Board majority applied the Lee Lumber factors to find that the Respondent lawfully relied on the employee peti- tion and withdrew recognition within weeks after expira- tion of the 6-month insulated bargaining period. The DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252 Board agreed that two of those factors—first contract bargaining and the absence of impasse—supported ex- tending the insulated period beyond 6 months. However, the Board majority found that the other factors did not support an extension. In particular, the majority con- cluded that the factor of time elapsed and bargaining sessions held “overwhelmingly favors” finding that a reasonable period for bargaining had elapsed. 350 NLRB at 266. The Board reasoned that “the parties did not start from scratch when they resumed bargaining in November 2002.” They had bargained for about 8 months “from the time the Union was originally certified in December 1999 until the Union ‘walked away’ from bargaining in August 2000.” Id. at 265. That earlier bargaining, added to the 6 months of bargaining after the Board’s Order, meant that the parties had bargained for about 14 months. Id. Further, the “substantial bargaining” between the parties after the Union’s certification, in addition to the bargaining that began in November 2002, prompted the Board to give “less weight than we otherwise might to the fact that the parties were bargaining for an initial con- tract.” Id. at 267. The Board acknowledged that “[h]ad the parties done little or no previous bargaining, the dif- ficulties often encountered in bargaining for an initial contract might loom larger in the overall analysis.” Id. Ninth Circuit’s Decision The court found that the Board’s analysis of Lee Lum- ber factors relied on factual findings about the parties’ pre-2002 bargaining that were unsupported by substantial evidence. The court found that “[t]here is no evidence in the record concerning the nature or the substance of the earlier round of bargaining—what happened in any of the bargaining sessions, how the parties related to one an- other, or what progress, if any, was made.” 323 Fed. Appx. at 524. (Emphasis in original.) The court empha- sized that “[t]he Board’s unsupported finding regarding the impact of the parties’ earlier negotiations was critical to its analysis.” Id. at 525. Consequently, the court re- manded the case to the Board for further proceedings. Analysis Because we have accepted the court’s remand as the law of the case, the court’s findings and conclusions are necessarily binding upon us. The court found that the record does not contain evidentiary support for the Board’s finding that “substantial bargaining” had oc- curred between the parties in the earlier negotiations. That finding was pivotal to the Board’s giving determi- native weight to the time factor and minimizing the ini- tial contract factor in balancing the Lee Lumber factors. In light of the court’s opinion, we now find the factor of time elapsed and bargaining sessions held favors ex- tension of the insulated bargaining period, inasmuch as the parties met just six to eight times during the 6 months of remedial bargaining in 2002–2003. Furthermore, the fact that the parties were bargaining for their first con- tract takes on greater significance in our analysis. Con- sidered in conjunction with the fact that negotiations were not at impasse, these factors outweigh the two re- maining countervailing factors—absence of any bargain- ing complexities and proximity to an agreement—that the Board previously found would support limiting the insulated period to 6 months. We find, therefore, that the parties had not yet bar- gained for a reasonable period of time before the Re- spondent withdrew recognition from the Union. Accord- ingly, we now conclude that the Respondent violated Section 8(a)(5) of the Act by withdrawing recognition and by failing and refusing to provide the Union with requested bargaining information. CONCLUSIONS OF LAW 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 Amer- ica, Local 872 is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct, the Respon- dent has violated Section 8(a)(5) and (1) of the Act. (a) Between June 10 and 15, 2003, withdrawing its recognition of the Union as the exclusive collective- bargaining representative of the unit. (b) Failing and refusing to furnish the Union with the information requested by it on June 3 and 25 and October 9, 2003. 4. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union, we shall order the Respondent to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. For the reasons set forth below, we shall enter an affirmative bargaining order, which requires bargaining for at least a reasonable period of time as the appropriate remedy for the Respon- dent’s unlawful withdrawal of recognition from the Un- ion. In addition, we shall order the Respondent to pro- BADLANDS GOLF COURSE 253 vide the information requested by the Union on June 3 and 25 and October 9, 2003.3 The Board has previously held that an affirmative bar- gaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective- bargaining representative of an appropriate unit of em- ployees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required the Board to justify, on the facts of each case, the imposition of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent Industrial Plastics, supra, the court stated that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargain- ing representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Id. at 738. Consistent with the court’s requirement, we have examined the particular facts of this case and we find that a balancing of the three factors warrants an affirmative bargaining order.4 (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Re- spondent’s unlawful withdrawal of recognition and re- sulting refusal to collectively bargain with the Union. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Un- ion’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of em- ployees who may oppose continued union representation because the order’s duration is not indefinite but only for a reasonable period of time sufficient to allow the good- faith bargaining that the Respondent’s unlawful with- drawal of recognition cut short. It is only by restoring the status quo ante and requiring the Respondent to bar- gain with the Union for a reasonable period of time that 3 We deny the Union’s request for other special remedies. 4 Member Schaumber does not agree with the view expressed in Caterair International, supra, that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) violation.” He agrees with the United States Court of Appeals for the District of Co- lumbia Circuit that a case-by-case analysis is required to determine if the remedy is appropriate. Alpha Associates, 344 NLRB 782, 787 fn. 14 (2005). He recognizes, however, that the view expressed in Caterair International, supra, represents extant Board law. Flying Foods, 345 NLRB 101, 109 fn. 23 (2005). employees’ Section 7 right to union representation is vindicated. It will also give employees an opportunity to fairly assess the Union’s effectiveness as a bargaining representative and determine whether continued repre- sentation by the Union is in their best interests. (2) An affirmative bargaining order also serves the Act’s policies of fostering meaningful collective bargain- ing and industrial peace. It removes the Respondent’s incentive to delay bargaining in the hope of discouraging support for the Union, and it ensures that the Union will not be pressured to achieve immediate results at the bar- gaining table—results that might not be in the employ- ees’ best interests. It fosters industrial peace by reinstat- ing the Union to its rightful position as the bargaining representative chosen by a majority of the employees. Also, as mentioned, providing this temporary period of insulated bargaining will afford employees a fair oppor- tunity to assess the Union’s performance in an atmos- phere free of the effects of the Respondent’s unlawful withdrawal of recognition and refusal to bargain. (3) A cease-and-desist order, alone, would be inade- quate to remedy the Respondent’s withdrawal of recogni- tion and refusal to bargain with the Union because it would allow another such challenge to the Union’s major- ity status before the taint of the Respondent’s previous unlawful withdrawal of recognition dissipated. Allowing another challenge to the Union’s majority status without a reasonable period for bargaining would be particularly unfair given that the litigation of the Union’s charges took several years and, as a result, the Union needs to reestab- lish its representative status with unit employees. Indeed, permitting a decertification petition to be filed immedi- ately might very well allow the Respondent to profit from its own unlawful conduct. We find that these circum- stances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union representation. For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the violation in this case. ORDER The Respondent, American Golf Corporation d/b/a Badlands Golf Course, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with the Labor- ers’ International Union of North America, Local 872. (b) Unlawfully withdrawing recognition from the Un- ion. (c) Refusing to supply the Union with necessary and relevant information that it requests for purposes of per- forming its representative duties. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254 (d) In any like or related manner interfering with, re- straining, 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) Recognize and, on request, bargain with the Labor- ers’ International Union of North America, Local 872, as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All regular full-time and regular part-time grounds- keepers, mechanics, irrigators, and crew leaders em- ployed by the Respondent at its Badlands Golf Club lo- cated in Las Vegas, Nevada; excluding all other em- ployees, pro-shop workers, food and beverage workers, office clerical employees, casual and temporary em- ployees, guards and supervisors as defined in the Act. (b) Furnish to the Union the information it requested in its letters dated June 3 and 25 and October 9, 2003. (c) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada, copies of the attached notice marked “Appendix.”5 Copies of the notice written in both English and Spanish, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or ceased working at its Las Vegas, Nevada facility, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice in both English and Spanish to all current employees and former employees employed by the Respondent at any time since June 3, 2003. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT withdraw recognition of the Laborers’ International Union of North America, Local 872, and refuse to recognize and bargain with it as the exclusive collective-bargaining representative of our employees in the bargaining unit described below. WE WILL NOT refuse to supply the Union with neces- sary and relevant information that it requests for pur- poses of performing its representative duties. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Laborers’ International Union of North America, Local 872, as the exclusive collective-bargaining representative of the employees in the following appropriate unit con- cerning 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 grounds- keepers, mechanics, irrigators, and crew leaders em- ployed by us at our Badlands Golf Club located in Las Vegas, Nevada; excluding all other employees, pro- shop workers, food and beverage workers, office cleri- cal employees, casual and temporary employees, guards and supervisors as defined in the Act. WE WILL provide the Union with the information it re- quested in its June 3 and 25 and October 9, 2003 letters. AMERICAN GOLF CORPORATION D/B/A BADLANDS GOLF COURSE