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An employer that met on 20 occasions with a union for more than 11 months was nevertheless found to have unlawfully refused to meet with the union at reasonable times because of its repeated, unexplained refusals to meet more frequently as the union had requested. Nonetheless, it was not found to have engaged in surface bargaining � going through the motions of negotiating while concealing a purpose of frustrating or avoiding an agreement � because the general counsel failed to prove that the employer did not intend to reach an agreement with the union. Accordingly, the National Labor Relations Board found that the employer did not act unlawfully when it withdrew recognition from the union, even though it unlawfully refused to meet at reasonable times with the union. Garden Ridge Mgmt., 347 NLRB No. 13 (2006). The board found that the five-month period between the employer’s last refusal to hold additional bargaining sessions and the time the employee-disaffection petition was presented to it weighed against finding that the unfair labor practice caused employee sentiment against the union. It also found that the nature of the violation did not support a finding of taint. Member Wilma Liebman partially dissented because she would find that the employer’s unlawful refusal to meet with the union was enough, by itself, to taint the employer’s withdrawal of recognition and she would also find that the employer engaged in surface bargaining. On May 18, 2007, the board (Liebman dissenting) turned down the general counsel’s motion for reconsideration and reaffirmed its earlier holdings. 349 NLRB No. 103. Employer has two different obligations under � 8(d) Section 8(d) of the National Labor Relations 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.” These are two different obligations: The former obligation refers to the frequency of meetings under the circumstances; the latter refers to the willingness to reach an accord on bargaining the matters that are in dispute. 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. 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. An employer may not lawfully withdraw recognition from a union when it has committed unfair labor practices that are likely to affect the union’s status, cause employee dissatisfaction or improperly affect the bargaining relationship itself. See Lee Lumber & Bldg., 322 NLRB 175, 177 (1996). However, not every unfair labor practice committed by an employer will be found to be responsible for a union’s subsequent loss of majority support. In cases in which the unfair labor practice does not involve a general refusal to recognize and bargain with the union, “there must be specific proof of a causal relationship between the unfair labor practice and the ensuing events indicating a loss of support.” Id. The employer and union in Garden Ridge began negotiations for an initial collective-bargaining agreement less than one month after the union was certified as the exclusive bargaining representative. They negotiated on 20 occasions in the course of 11 months, reaching tentative agreement on 28 articles. During these negotiations, the union asked on eight occasions that the employer meet more frequently. The employer refused each request without explanation. Just after the one-year period expired, the employer received a petition from its employees indicating that a majority of unit employees no longer wanted the union to represent them. The employer then withdrew recognition of the union. The administrative law judge (ALJ) found that the employer acted unlawfully by refusing to meet with the union at reasonable times, by engaging in surface bargaining and by withdrawing recognition from the union. The board affirmed only the ALJ’s finding about refusing to meet at reasonable times; it dismissed the other allegations. The board considered the totality of the circumstances and did not just examine the number of bargaining sessions held in determining that the employer had not satisfied its duty to meet at reasonable times. Thus, the board found that the employer acted unlawfully, even though it had negotiated with the union on 20 occasions in the course of 11 months, and reached agreement on 28 contract articles. The board relied heavily on the employer’s repeated, unexplained refusals to meet in finding that the employer violated its duty to meet at reasonable times. However, the board did not find the employer’s refusal to meet at reasonable times determinative as to whether the employer engaged in surface bargaining. Instead, the board evaluated the allegations of surface bargaining independently based on the totality of the employer’s conduct, including at and away from the bargaining table. As a result of this approach, the board reversed the ALJ’s finding that the employer engaged in surface bargaining, which was based on the content and timing of the employer’s proposals, the frequency of the bargaining sessions and certain precertification statements made by two of the employer’s officials. The board found that the employer’s proposal seeking the union’s agreement to refrain from organizing certain nonbargaining-unit employees was not unlawful and thus did not evidence an intent to avoid reaching an agreement. The employer had proposed a broad management rights clause, to which the union made specific objections. The employer and union reached agreement on the proposal after the objectionable portions were withdrawn, though the employer reintroduced some of the “objectionable” portions in connection with other provisions, as it had advised the union it might do. The board rejected the argument that this amounted to the tactic of pretending to concede, while reintroducing its substance in another portion of its bargaining proposal. The board found that there was no “gamesmanship” because the employer had clearly advised the union it would agree to the modified management rights clause but reserved the right to reintroduce the points when agreement had not been reached. The board concluded that the employer’s “effort to secure agreement, where possible, while voicing its intent not to retreat from the substance of its bargaining position, is not inconsistent with an intent to reach agreement.” 347 NLRB No. 13, at *4. The board also declined to infer an intent to avoid reaching an agreement from the employer’s failure to meet more frequently because the employer negotiated with the union on 20 occasions in the course of 11 months and reached agreement on significant issues. The board concluded that merely because “a party does not meet with sufficient frequency does not necessarily mean that it does not wish to agree to a contract.” Id. at *5. Furthermore, the board did not find bad-faith bargaining based on statements by two of the employer’s managers. One statement that “there’s all kinds of things we can do, and . . . the bargaining would go on and the union is not going to get anything that we don’t want to give them” was found by the board to indicate nothing more than the law not requiring a party to make concessions or agree to particular proposals. Although it found “more troublesome” the other manager’s statement that “we would basically tie the union up at the bargaining table and we would not come to an agreement,” the board still found it was insufficient when considered in light of all the evidence regarding the negotiations, particularly when these statements were made during the election campaign before the union was certified, the manager who made this statement did not “call the shots” during negotiations, and agreement was later reached during negotiations on many substantive contract provisions. Withdrawal of recognition was not found unlawful In view of its finding that the employer did not engage in surface bargaining, the board also reversed the ALJ’s finding that the employer’s withdrawal of recognition was unlawful. This reversal was based on the board’s finding that there was no specific proof that the employer’s unlawful refusal to meet at reasonable times caused the union’s loss of majority support. The board found that the five-month period between the employer’s last refusal to hold additional bargaining sessions and the time the employees’ disaffection petition was presented to the employer weighed against finding that the unfair labor practice (ULP) caused employee sentiment against the union. The board also did not find that the nature of the violation supported a finding of taint because the employer had bargained with the union for almost a year before employees indicated that they no longer wished to be represented by the union, the parties met on 20 occasions in the course of 11 months and achieved agreement on a significant number of subjects, and there was no showing that the scheduling disputes had a tendency to cause employee dissatisfaction toward the union. This case illustrates the methodical analysis of evidence this board undertakes when determining whether a party’s conduct at the bargaining table constitutes bad-faith bargaining and how it considers separately whether a party has satisfied its obligation to meet at reasonable times with respect to negotiating an agreement, whether a party has engaged in surface bargaining and whether an employer’s ULP caused the dissatisfaction of employees with their union. The board requires specific proof that an employer’s ULP actually caused the union’s loss of majority support when it is alleged that the employer’s withdrawal of recognition was “tainted,” placing great weight on the temporal nexus between the employer’s ULP and the employee-disaffection petition. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw and is a fellow in The College of Labor & Employment Lawyers.

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