Garden Ridge Management, Inc., 131 (2006)

Garden Ridge Management, Inc. and General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with the International Brotherhood of Teamsters.1 Cases 16–CA–22275 and 16–CA–22756

May 31, 2006

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On August 19, 2003, Administrative Law Judge Keltner W. Locke issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief, and has decided to affirm the judge’s rulings, findings,2 and conclusions3 only to the extent consistent with this Decision and Order.

The facts, which are set forth more fully in the judge’s decision, are as follows. The Union was certified as the bargaining representative of the Respondent’s employees on April 22, 2002.4 The parties began negotiations for a collective-bargaining agreement on May 15. They negotiated on 20 occasions over 11 months, reaching tentative agreement on 28 articles.5 During these negotiations, the Union asked on approximately eight occasions that the Respondent meet with it more frequently. The Respondent refused each of these requests without explaining to the Union why it did not wish to meet more often.6 The final negotiation session occurred on April 7, 2003. In late April 2003, the Respondent received a petition from its employees indicating that a majority of unit employees no longer wanted the Union to represent them. Based on the employees’ petition, the Respondent withdrew its recognition of the Union on April 25, 2003.

The judge found that the Respondent violated Section 8(a)(5) and (1) by refusing to meet with the Union at reasonable times, by engaging in surface bargaining, and by withdrawing recognition from the Union. The Respondent has excepted to the judge’s findings, arguing that it negotiated with the Union in good faith and that it lawfully withdrew recognition from the Union. As discussed below, we affirm only the judge’s finding that the Respondent did not meet at reasonable times as required by Section 8(d), and we shall dismiss the remaining allegations of 8(a)(5) and (1) misconduct.

i.

We agree with the judge, for reasons stated in his decision, that the Respondent violated Section 8(a)(5) by refusing to meet with the Union at reasonable times. The parties met approximately every 3 weeks from the time negotiations began until the last bargaining session in April 2003, for a total of about 20 bargaining sessions. The Union repeatedly requested additional bargaining sessions based on its dissatisfaction with the pace of negotiations, but the Respondent failed to accommodate any of those requests. The Union first requested that the parties meet on a more frequent basis at the fourth bargaining session, held on June 27, when union negotiators stated their concern that the parties were “not getting anywhere” and asked if the Respondent would be willing to meet several days in a row. The Respondent’s Chief Negotiator Christopher Antone told the Union that additional meetings would probably not be possible, but that he would check on it.

At the next bargaining session on July 18, union negotiators again asserted that things were moving along too slowly and suggested that the Respondent was stalling the negotiations. The Respondent denied the accusation. During the rest of 2002, the Union continued to press for more frequent bargaining sessions and to express its concern that the parties were not meeting frequently enough to make any progress toward an agreement. For example, in discussing future meeting dates during a meeting on August 15, union negotiator Douglas Ellison told the Respondent that the parties were not meeting enough. On October 29, union negotiator Robert Bridges asked the Respondent if they could “string meeting dates together” because they “were not getting anywhere in negotiations.” In all, the Union made such statements to the Respondent during 8 of the 12 bargaining sessions conducted between July and December. The Respondent consistently refused the Union’s requests without offering any explanation as to why it could not meet on a more frequent basis. The only comment made to the Union relative to this refusal came from Chief Negotiator Antone at the October 29 bargaining session, where he stated that he enjoyed taking time off between sessions to contemplate what had happened during negotiations. At the hearing, the Respondent proffered no reason for its refusal to meet more often with the Union.

Section 8(d) of the Act requires that an “employer and the representative of the employees . . . meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. . . .” The Board considers the totality of the circumstances when determining whether a party has satisfied its duty to meet at reasonable times. Calex Corp., 322 NLRB 977, 978 (1997), enfd. 144 F.3d 904 (6th Cir. 1998) (examining respondent’s “overall conduct”). Our inquiry is not limited to an examination of the number of bargaining sessions held. Here, on balance, we find that the Respondent violated its duty to meet at reasonable times.

We first acknowledge that the Respondent met with the Union on 20 occasions over 11 months and reached agreement on a host of issues. We also acknowledge that, as discussed below, the General Counsel failed to satisfy his burden of proving that the Respondent bargained in bad faith. However, despite the parties’ progress in negotiations, significant issues remained outstanding, and the Union made repeated requests in 2002 for more frequent bargaining sessions. The Respondent summarily refused each of these requests without explaining its unwillingness to the Union or the Board.

Calex Corp., 322 NLRB 977, is instructive. In that case, the Board held that an employer violated its duty to meet at reasonable times even though it negotiated with the union on 19 occasions over 15 months. When negotiations started, the employer declared that it would meet only once per month. The union repeatedly requested more frequent bargaining sessions, but the employer refused. The Board relied heavily on the employer’s repeated refusals in finding that the employer violated the Act. Consistent with Calex Corp., we rely heavily on the Respondent’s repeated, unexplained refusals in finding that the Respondent violated its duty under Section 8(d) to meet at reasonable times.7

ii.

Contrary to the judge and our dissenting colleague, we do not find that the Respondent violated Section 8(a)(5) and (1) by engaging in surface bargaining. Recognizing that this is a close case, we nonetheless find that the General Counsel failed to prove by a preponderance of the evidence that the Respondent did not intend to reach agreement with the Union, an essential aspect of a surface-bargaining allegation.

As stated above, Section 8(d) defines the duty to bargain collectively as “the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession.” Good-faith bargaining “presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract.” NLRB v. Insurance Agents’ Union, 361 U.S. 477, 485 (1960). “The Board’s task in cases alleging bad-faith bargaining is the often difficult one of determining a party’s intent from the aggregate of its conduct.” Reichhold Chemicals, 288 NLRB 69, 69 (1988), enf. denied in part on other grounds 906 F.2d 719 (D.C. Cir. 1990); Flying Foods, 345 NLRB 101, 108 (2005). “From the context of an employer’s total conduct, it must be decided whether the employer is engaging in hard but lawful bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of reaching agreement.” Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003).

The General Counsel argues that he proved that the Respondent harbored an intent to avoid reaching agreement by introducing evidence of: (1) the content and timing of the Respondent’s bargaining proposals; (2) the frequency of the bargaining sessions; and (3) certain pre-certification statements made by two of the Respondent’s officials. We find that the General Counsel failed to satisfy his burden.

The sole proposal relied on by the judge to show unlawful intent was a proposal seeking the Union’s agreement to refrain from organizing certain non-bargaining-unit employees. But, as acknowledged by the dissent, the Board has found such agreements are permissible. See Lexington Health Care Group, 328 NLRB 894 (1999). Thus, there is nothing unlawful about the Respondent’s proposal on this issue and hence nothing which evidences an intent not to reach an agreement.

The General Counsel also argues that the Respondent’s management-rights proposals demonstrate an intent to avoid reaching agreement. We disagree. The Respondent proposed a broad management-rights clause. The Union voiced its opposition to several features of the Respondent’s proposal. In response, the Respondent modified its proposal to eliminate the objectionable features, while simultaneously informing the Union that it might propose the substance of those features in separate articles. The parties agreed on the language of the management-rights clause that day. Consistent with its notice, the Respondent did propose the separate articles at the next bargaining session. The language that had been objected to was changed. The Respondents effort to secure agreement, where possible, while voicing its intent not to...