AT Systems West, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 2004

341 N.L.R.B. 57 (N.L.R.B. 2004)

AT SYSTEMS WEST, INC. 57
AT Systems West, Inc. (formerly known as Armored
Transport, Inc.) and International Union, Secu-
rity, Police and Fire Professionals of America,
Local 100 (SPFPA), f/k/a International Union,
United Plant Guard Workers of America, Local
No. 100. Case 31–CA–24906
January 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 28, 2001, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed an an-
swering brief in opposition to the General Counsel’s and
Charging Party’s exceptions.1
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 briefs and has decided to
affirm the judge’s rulings, findings2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent did not violate
Section 8(a)(5), (2), and (1) of the Act by withdrawing
recognition from the Union and thereafter entering into a
collective-bargaining agreement with a different labor
organization. The judge also found that the Respondent
did not violate Section 8(a)(1) by allegedly threatening
an employee with unspecified reprisals for speaking fa-
vorably about the Union. We disagree.
For the reasons set forth below, we find that the Re-
spondent’s withdrawal of recognition was unlawful, first,
because there was a nexus between the employees’ disaf-
fection with the Union and the Respondent’s unremedied
unfair labor practices, and second, because the Respon-
dent withdrew recognition at a time when it was obli-
gated to bargain with the Union for a reasonable period
following a settlement agreement. We also find that the
Respondent subsequently violated Section 8(a)(2) by
recognizing, and entering into a collective-bargaining
agreement with another labor organization while the Un-

1 We grant the Respondent’s request that the Board take administra-
tive notice of the settlement agreement at issue in this case.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
ion was the exclusive representative of the Respondent’s
employees. Finally, we find that the Respondent’s threat
to an employee violated Section 8(a)(1) of the Act.
Factual Background
The Respondent is a multistate armored car company
engaged in the business of transporting and warehousing
cash and other valuables for banks, retail stores, and
similar businesses. This case involves the bargaining
unit at the Respondent’s Sacramento branch.
Beginning in the early 1980s, employees formed a la-
bor organization known as Armored Transport Sacra-
mento Employees Association (ATSEA). ATSEA signed
collective-bargaining agreements with the Respondent
covering the Sacramento employees. However, in 1985,
the employees selected CASHA (the Union) in a Board-
conducted election. In 1986, also in a Board election, the
employees voted to decertify CASHA as the employees’
bargaining representative. Thereafter, the employees
reformed ATSEA, which through the mid-1990s signed
collective-bargaining agreements with the Respondent,
including a 3-year contract in 1995. In 1998, the em-
ployees again selected CASHA in a Board-conducted
election.3 At that time, CASHA also represented the
Respondent’s employees in several other California loca-
tions.
In July 1998, the Respondent began face-to-face nego-
tiations with the Union concerning seven or eight of the
Respondent’s branches, including Sacramento. No col-
lective-bargaining agreement was reached for the Sacra-
mento unit. On March 3, 1999, the Respondent sent spe-
cifically tailored letters to unit employees at each of its
Sacramento, Oakland, and Ventura facilities entitled
“Don’t Blame Us.”
The letters began by stating that the Respondent “is ex-
tremely frustrated over the circumstance that we have
gone over 17 months now without a new signed collec-
tive bargaining agreement” and pointed out that some
employees had gone 3 or 4 years without a pay increase.
The letters continued with a chronology of the bargaining
to date, and a section entitled “How Can We Move For-
ward?”:

To move forward everyone needs to recognize that we
are all co-workers and that the Company is our Com-
pany. Consistent with the preceding thought, we are
providing you with a copy of a new proposal we are
forwarding to CASHA on an unsolicited basis. Exclu-
sive of compensation, said proposal is essentially iden-
3 Although the Union has changed names several times since it was
certified by the Board as the Sacramento employees’ 9(a) representa-
tive in July 1998, there is no dispute as to its identity or labor organiza-
tion status.
341 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 58
tical to the implemented contract in Los Angeles and
Orange as well as the Company’s last proposal con-
cerning Oakland [Ventura and Sacramento]. With re-
spect to compensation, the Company’s proposal will
result in wage increases ranging from $1.80 per hour to
$2.95 per hour in the first year. [Emphasis in original.]

The letters suggested five courses of action the em-
ployees could take:

1. Demand that the union sign the enclosed proposal.
2. Demand that the union let you actually vote on the
proposal and that they sign the proposal if a majority
favor the proposal.
3. Go to the NLRB and request a new election because
you no longer desire to be represented by people from
Orange or Los Angeles or Blackfoot, Idaho (?).
4. Go to the NLRB and demand a new election because
you are of the opinion you were misled (or deceived)
by CASHA and you never agreed that UPGWA was a
union you want to belong to.
5. Establish in some creditable fashion to Company
management that CASHA (or is it UPGWA?) does not
represent a majority of people in the Oakland [Sacra-
mento, or Ventura] branch.

Appended to the letters were contract proposals that the
Respondent was simultaneously providing—for the first
time—to the Union.
On April 27, May 10, and June 10, 1999, the Respon-
dent distributed to employees at all three facilities fol-
lowup letters, restating the same points and stressing that
the Union still had not signed a contract despite the in-
creased wages that the contract would have provided.
The letters specified the increased rates of compensation
that the employees would have received had the Union
agreed to the Respondent’s contract proposal. The letters
also warned employees of the consequences that could
befall them in the event of a strike.
The Union filed unfair labor practice charges over the
Respondent’s March through June letters. In Armored
Transport, Inc., 339 NLRB No. 50 (2003), the Board
found that by sending employees the letters with attached
contract proposals, which proposals the union had not
had an opportunity to review, the respondent engaged in
unlawful direct dealing in violation of Section 8(a)(5).
The Board also found that the respondent unlawfully
solicited employees to decertify the union, in violation of
Section 8(a)(1), and unlawfully interfered with internal
union processes.4
In July 1999, the Respondent implemented a new wage
scale for the Sacramento unit employees. The Union
filed an unfair labor practice charge alleging that this
constituted an unlawful unilateral change. While the
charge was pending, negotiations continued. On Sep-
tember 9, 1999, after 14 months of unsuccessful bargain-
ing, the Respondent submitted a “last, best and final”
proposal for the Sacramento unit, in response to the Un-
ion’s request.
On September 18, the Union conducted a ratification
vote among the Sacramento employees. The tally
showed 21 votes against ratification and 20 in favor of it.
However, a comparison of this tally to documents each
employee signed before voting disclosed that there were
two more votes cast than employee documents. Based
on this discrepancy, employees objected to the vote;
however, union official Troy Nelsen told the employees
that one or two votes were not significant enough to war-
rant a revote. On November 14, 1999, the Respondent
implemented the terms of its final offer.
In December 1999, the Union and the Respondent en-
tered into an informal Board settlement agreement re-
garding the July 1999 unilateral wage increase. Under
the terms of the settlement agreement, the Respondent
agreed that it would not unilaterally implement new
wages and that it would, on request, meet and bargain
with the Union. The settlement agreement, which con-
tained a nonadmission clause, also required that the Re-
spondent post a notice to employees for 60 days.
Following execution of the settlement agreement (and
during the posting period of the settled charge), the Un-
ion wrote the Respondent three times in early 2000
specifying proposals for the various California facilities,
including Sacramento. On February 28, the Respondent
wrote the Union stating that it was willing to engage in
“meaningful good faith bargaining.”
In early March, several Sacramento employees, who
had been active on behalf of ATSEA, began soliciting
unit employees to oppose continued union representa-
tion. The ATSEA solicitors told employees that their
signatures were needed so that the Union would no
longer represent them, and to demonstrate their support
for the agreement that the Respondent previously had
implemented. Twenty-nine of approximately 48 unit
employees signed this document.
On about March 17, 2000, employee Robert Elliot
turned over the list of signatures, with a cover sheet, to

4 Chairman Battista did not find a separate violation based on the in-
terference with internal union processes allegation.
AT SYSTEMS WEST, INC. 59
the Respondent’s branch manager, Armes.5 The cover
sheet stated:

We the employees of Armored Transport Sacramento
would like to sign the current Implemented labor
agreement. We as a [sic] employee group voted to no
longer be represented by CASHA. And have chosen to
represent ourselves in further contract negotiations.
The attached is a list of signatures confirming our vote.

Upon receiving the document, Armes sent it to the Respon-
dent’s regional vice president, Eimer, who forwarded it to
Respondent’s president Irvin. Based on these documents,
the Respondent concluded that the Union no longer repre-
sented a majority of its Sacramento employees and with-
drew recognition. The Respondent did not inform the Union
of the withdrawal.
Following its withdrawal of recognition, the Respon-
dent recognized and bargained with the designated repre-
sentatives of ATSEA. After one bargaining session, the
Respondent entered into a collective-bargaining agree-
ment with ATSEA on April 10, 2000, for an agreement
with an effective term of April 15, 2000, to January 31,
2003.6
Employee and Union Steward Jayson Kessinger testi-
fied that in about April 2000, sometime after the Re-
spondent had withdrawn recognition from the Union and
recognized ATSEA, he was speaking with Assistant
Manager Schaffner. Kessinger told Schaffner, “I cannot
wait until the Union gets back in power,” to which
Schaffner replied, “Talk like that will get you in trouble.”
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(5) by withdrawing recognition from
the Union because: (1) the March 2000 employee peti-
tion was tainted by the “Don’t Blame Us” letters; and,
(2) at the time of the withdrawal, there had not been a
reasonable time for bargaining after the December 1999
settlement agreement. The General Counsel further al-
leged that, based on this unlawful withdrawal of recogni-
tion, the Respondent unlawfully recognized and bar-
gained with ATSEA, in violation of Section 8(a)(2).
Finally, the General Counsel alleged that Schaffner’s
April 2000 statement to Kessinger constituted an unlaw-
ful threat, in violation of Section 8(a)(1).

5 Three employees signed the cover sheet. The remaining unit em-
ployees signed the untitled list that was appended to the cover sheet.
6 The new agreement made the October 2000 employee wage in-
crease under the former, implemented proposal effective in July 2000
and adjusted the pay rate to reflect additional wage increases over the
term of the contract.
The Judge’s Decision
The judge found that the Respondent did not violate
the Act by withdrawing recognition from the Union or by
recognizing ATSEA as the representative of its Sacra-
mento employees. The judge first concluded that the
“Don’t Blame Us” letters, sent to employees in March,
April, May, and June 1999,7 were too remote in time
from the employees’ March 2000 petition to have been a
cause of it. The judge also noted that the intervening
contract ratification vote in September 1999, engendered
some employee disaffection because of the possibility
that the vote was tainted.
The judge further found that the December 1999 set-
tlement agreement did not preclude the Respondent from
lawfully withdrawing recognition from the Union. Al-
though the settlement agreement required the Respondent
to bargain in good faith, the judge, relying on the fact
that the parties had already bargained for about 17
months prior to the settlement agreement, determined
that a reasonable period of time for bargaining had
passed. Accordingly, the judge concluded that, based on
the employee petition, the Respondent possessed a good-
faith doubt of the Union’s majority status and therefore
the Respondent was free to withdraw recognition from
the Union and to recognize and bargain with ATSEA.
Finally, the judge found that the Respondent’s remark
to employee Kessinger that support for the Union would
get him in trouble was an isolated remark and, thus, ab-
sent any other violations, was de minimis.
We disagree with the judge’s findings for the reasons
set forth below.
Discussion
1. The Respondent violated the Act by withdrawing rec-
ognition from the Union at a time when unfair labor
practices were unremedied
The Board has long held that an employer may not
withdraw recognition based on employee disaffection if
there is a causal nexus between the disaffection and un-
remedied unfair labor practices. Olson Bodies, Inc., 206
NLRB 779, 780 (1973). As one court has stated, a
“company may not avoid the duty to bargain by a loss of
majority status caused by its own unfair labor practices.”
NLRB v. Williams Enterprises, 50 F.3d 1280, 1288 (4th
Cir. 1995).
Not all unremedied violations will preclude a lawful
withdrawal, however. The unremedied unfair labor prac-
tices must be of a character as to either affect the union’s
7 The judge’s decision states only that the letters were sent in March
1999. However, the record is clear that the letters were sent in April,
May, and June as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 60
status, cause employee disaffection, or improperly affect
the bargaining relationship itself. That is, as stated, there
must be a causal relationship between the unfair labor
practices and the employees’ disaffection with the union.
Master Slack Corp., 271 NLRB 78, 84 (1984). In mak-
ing such a determination, the Board analyzes several
factors, including (1) the length of time between the un-
fair labor practices and the withdrawal of recognition; (2)
the nature of the illegal acts, including the possibility of
their detrimental or lasting effect on employees; (3) any
possible tendency to cause employee disaffection from
the union; and (4) the effect of the unlawful conduct on
the employees’ morale, their organizational activities,
and membership in the union. See, e.g., Saginaw Con-
trol & Engineering, 339 NLRB No. 76 (2003); Penn
Tank Lines, 336 NLRB 1066 (2001).
Here, the unfair labor practices that must be considered
under the Master Slack analysis are those found by the
Board in its decision, 339 NLRB No. 50 (2003), issued
after the judge’s decision herein, that the Respondent
violated Section 8(a)(5) and (1) of the Act by virtue of
the “Don’t Blame Us” letters and the attached contract
proposals that the Respondent provided Sacramento unit
employees from March to June 1999.
The first factor to consider under Master Slack is the
length of time between the unfair labor practices and the
withdrawal of recognition. Here, the unlawful letters and
contract proposal were sent in March, April, May, and
June 1999. The employees began soliciting signatures to
replace the Union in March 2000, and the Respondent
withdrew recognition later that same month.8 Thus, the
time between the last of these letters and the disaffection
by employees is 9 months. While this span of time is not
insubstantial, given the nature of the unfair labor prac-
tices, we find that the passage of time reasonably would
not dissipate the effects of the Respondent’s conduct. As
the Board stated in Bridgestone/Firestone, Inc., 332
NLRB 575, 576 (2000), enfd. in relevant part unpub-
lished 47 Fed. Appx. 449 (9th Cir. 2002), solicitations of
employees to decertify a union and direct dealing with
employees are violations “clearly [ ] of a type that tend to
have a lasting effect on employees and cause employee
disaffection from a union.” Accord Americare Pine
Lodge Nursing, 325 NLRB 98, 98–99 (1997), enf. denied
in relevant part sub nom. Americare Pine Lodge Nursing
& Rehabilitation Center v. NLRB, 164 F.3d 867 (4th Cir.
1999) (direct dealing in July and August tainted with-
drawal of recognition announced in September and made

8 The Respondent acknowledges in its brief that it withdrew recogni-
tion in March 2000. After receiving the employees’ petition on March
17 the Respondent immediately set about preparing contract proposals
to present to the new employee-run labor organization.
effective in December). Further, here the employees
followed precisely that path of decertification that the
Respondent urged in the “Don’t Blame Us” letters, sup-
porting a finding that the employees had not forgotten
the Respondent’s earlier admonitions.
The second factor to consider is the nature of the
unlawful acts, including the possibility of their detrimen-
tal or lasting effect on employees. The Board has found
that direct dealing reasonably tends to have a lasting ef-
fect on employees, and an employer’s going over the
head of a union “to deal individually with the employees
. . . tend[s] inevitably to weaken the authority of the [Un-
ion] and its ability to represent the employees in dealing
with the Company.” RTP Co., 334 NLRB 466, 468
(2001) (citation omitted), enfd. sub nom. NLRB v. Miller
Waste Mills, 315 F.3d 951 (8th Cir. 2003), cert. denied
124 S.Ct 51 (2003). See also Bridgestone/Firestone, 332
NLRB at 576 (solicitation of decertification, direct deal-
ing, promise of benefits likely to undermine support for
union). Here, the Respondent presented the employees
with contract proposals without affording the Union a
prior opportunity to consider the proposals or to bargain.
Further, it encouraged employees to decertify the Union
if the Union did not accept its proposals, and intruded on
internal union processes. Given the nature of these
unlawful acts, this factor reasonably would lead to em-
ployee disaffection with the Union.
The final two Master Slack factors focus on the effect
of the unlawful conduct on employees’ morale, their or-
ganizational activities, and the possible tendency of the
unfair labor practices to cause employee disaffection
from the union. Direct dealing regarding wages and so-
liciting employees to decertify a union, are “of a charac-
ter that reasonably tends to have a negative effect on un-
ion membership.” RTP, 334 NLRB at 469. As the
Board has stated, “an employer who engages in efforts to
have its employees repudiate their union must be held
responsible for the foreseeable consequence of its con-
duct.” Bridgestone/Firestone, 332 NLRB at 577 (cita-
tion omitted).
The Board has held that it is the objective evidence of
the commission of unfair labor practices that has the ten-
dency to undermine the union, and not the subjective
state of mind of the employees, that is the relevant in-
quiry in this regard. Wire Products, 326 NLRB 625, 627
fn. 13 (1998), enfd. mem. 210 F.3d 375 (7th Cir. 2000);
Fabric Warehouse, 294 NLRB 189, 192 (1989), enfd.
mem. 902 F.2d 28 (4th Cir. 1990); C. F. Martin, 252
NLRB 1192 fn. 2 (1980). Here, the Respondent’s direct
dealing and solicitation of union decertification reasona-
bly would tend to “minimize[ ] the influence of organ-
ized bargaining” and “emphasize[ ] to the employees that
AT SYSTEMS WEST, INC. 61
there is no necessity for a collective bargaining agent.”
May Department Stores Co. v. NLRB, 326 U.S. 376, 385
(1945).
In sum, the Respondent’s unlawful conduct was of a
type that reasonably tends to have a negative effect on
union membership and to undermine the employees’
confidence in the effectiveness of their selected collec-
tive-bargaining representative. In light of this conduct it
is not surprising that an employee petition rejecting the
Union surfaced. Penn Tank Lines, Inc., 336 NLRB at
1068. Under these circumstances, the Respondent could
not lawfully challenge the Union’s majority status on the
basis of the antiunion petition that arose while those un-
fair labor practices remained unremedied. Therefore, we
find that by withdrawing recognition from the Union,
and by refusing to bargain with it, the Respondent vio-
lated Section 8(a)(5) of the Act.9
2. The Respondent failed to bargain with the Union for a
reasonable period of time following the settlement
agreement
In December 1999, the Respondent and the Union en-
tered into a non-Board settlement concerning the Re-
spondent’s alleged failure to bargain in good faith with
the Union by unilaterally implementing a wage increase.
The settlement agreement required the Respondent not
only to cease and desist from such conduct, but also, af-
firmatively, to bargain upon request with the Union.10
Thus, the Respondent had an obligation to bargain with
the Union for a reasonable period of time following exe-
cution of the settlement agreement. If the parties did not
bargain for a reasonable period of time, following the
Union’s request, the Respondent was not free to with-
draw recognition irrespective of the Union’s majority
status.
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), the Board considered this issue and
stated:

9 Contrary to our dissenting colleague, we do not believe that the
passage of time and the intervening events establish that the Respon-
dent’s pervasive unlawful conduct did not have an effect on employees’
disaffection with the Union. As detailed above, the Respondent’s con-
duct, which it never remedied, was of a type to have a lingering effect
on employee sentiment, notwithstanding the passage of time and inter-
vening events. Further, the alleged triggering event for employee dis-
satisfaction with the Union, on which our colleague relies, the contract
ratification vote, itself occurred 6 months before the presentation of the
petition to the Respondent, and only 3 months after the last of the Re-
spondent’s unlawful letters was sent to employees.
10 The settlement agreement also required the Respondent to post a
notice to employees for 60 days stating that it was taking this remedial
action.
It is well settled that after the Board finds that an
employer has failed in his statutory duty to bargain
with a union, and orders the employer to bargain,
such an order must be carried out for a reasonable
time thereafter without regard to whether or not
there are fluctuations in the majority status of the un-
ion during that period. Such a rule has been consid-
ered necessary to give the order to bargain its fullest
effect, i.e., to give the parties to the controversy a
reasonable time in which to conclude a contract.
Similarly, a settlement agreement containing a bar-
gaining provision, if it is to achieve its purpose, must
be treated as giving the parties thereto a reasonable
time in which to conclude a contract. We therefore
hold that after providing in the settlement agreement
that it would bargain with the Union, the Respondent
was under an obligation to honor that agreement for
a reasonable time after its execution without ques-
tioning the representative status of the Union. [Poole
Foundry, supra, at 36, fn. omitted.]

This requirement under Poole for a reasonable period
for bargaining applies to informal Board settlements as
well as formal settlements. King Soopers, Inc., 295
NLRB 35 (1989).
In deciding whether the parties have bargained for a
reasonable period of time under Poole, the Board consid-
ers the following factors: whether the parties were bar-
gaining for an initial agreement, the complexity of the
issues being negotiated and the parties’ bargaining pro-
cedures, the total amount of time elapsed since the com-
mencement of bargaining and the number of bargaining
sessions, the amount of progress made in negotiations
and how near the parties were to agreement, and the
presence or absence of a bargaining impasse. See gener-
ally Lee Lumber & Building Material Corp., 334 NLRB
399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002). See
also Gerrino Restaurant, 306 NLRB 86 fn. 2, 88–89
(1992); Driftwood Convalescent Hospital, 302 NLRB
586, 588–589 (1991).
Applying these factors here, we conclude, contrary to
the judge, that the parties had not bargained for a reason-
able period of time following the settlement agreement
and, thus, the Respondent was not free to withdraw rec-
ognition from the Union.
Here, the parties were negotiating for a first contract.
Because of the complexity of bargaining occasioned by
this fact, as well as the fact that the parties were negotiat-
ing on a multilocation basis, the factors of initial contract
and complexity of bargaining weigh against finding that
a reasonable period of time to bargain had elapsed. See
Ford Center for the Performing Arts, 328 NLRB 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62
(1999). See generally Lee Lumber, supra, 334 NLRB at
403.
Although, by the time of the settlement agreement, the
parties had been in negotiations for approximately 17
months, this fact must be balanced against the Respon-
dent’s unfair labor practices in sending the “Don’t Blame
Us” letters in March, April, May, and June 1999, and the
settled unfair labor practice allegation that, in July 1999,
the Respondent unilaterally implemented a wage in-
crease. Taking into account the fact that the negotiations
occurred in the context of this activity, we cannot con-
clude that the parties were at a virtual impasse and un-
able to reach an agreement.
Nor do we agree with the judge that the withdrawal
was privileged because bargaining had reached a dead
end even prior to the settlement agreement by virtue of
the Respondent’s unilateral implementation of its con-
tract proposal in November 1999, which the Union did
not contest. The critical time period for determining
whether there was a reasonable time to bargain starts
from the date of the approval of the settlement agree-
ment. Gerrino, 306 NLRB at 89.
Turning to the next factor, the time elapsed between
the December 1999 settlement agreement and the Re-
spondent’s withdrawal of recognition was only 3 months.
As for progress made, during that period the parties had
no face-to-face meetings, but did exchange letters regard-
ing outstanding contractual issues. Thus, on January 3,
2000, Union President Troy Nelsen wrote the Respon-
dent representative’s Livingston, regarding outstanding
contractual issues; Nelsen categorized his letter into nine
proposals. Those issues pertained to all of the facilities
in negotiation, including Sacramento. On February 18,
2000, Nelsen wrote to the Respondent to reiterate more
specifically the Union’s January 3, 2000 contract propos-
als. On February 28, 2000, Livingston responded to Nel-
son indicating that the Respondent “desires to engage in
meaningful good faith bargaining.” Yet soon after receiv-
ing the March 17, 2000 petition, the Respondent with-
drew recognition. In these circumstances, we cannot find
that the Respondent satisfied its obligation to continue
bargaining with the Union for a reasonable period of
time pursuant to the settlement agreement.
Accordingly, applying all the factors as set forth in Lee
Lumber, supra, we conclude that a reasonable period of
time for bargaining had not elapsed, and that the Re-
spondent violated Section 8(a)(5) of the Act by with-
drawing recognition from the Union at a time when it
was obligated to bargain under the terms of the settle-
ment agreement.
3. The Respondent recognized and bargained with
ATSEA in violation of Section 8(a)(2) and (1)
Having found that the Respondent’s unremedied unfair
labor practices precluded a challenge to the Union’s pre-
sumption of continuing majority support, and that Re-
spondent was obligated to bargain with the Union under
the terms of the settlement agreement, we further find
that the Respondent’s recognition of ATSEA and its
signing of a contract with that labor organization violated
Section 8(a)(2) and (1) of the Act. It is axiomatic that an
employer may recognize and bargain only with the ex-
clusive representative of its employees. See Mastronardi
Mason Materials Co., 336 NLRB 1296, 1308 (2001),
enfd. unpublished 64 Fed. Appx. 271 (2d Cir. 2003);
Natico, Inc., 302 NLRB 668, 687 (1991). That represen-
tative, at all times relevant to this proceeding, was the
Union.
4. The Respondent violated Section 8(a)(1) by threaten-
ing an employee for expressing sentiments favorable to
the Union
Finally, contrary to the judge we find that the Respon-
dent’s threat to employee Jayson Kessinger likewise vio-
lated Section 8(a)(1). Thus, in April 2000, after the Re-
spondent had unlawfully withdrawn recognition from the
Union, when Kessinger told the Respondent’s assistant
manager, Steven Schaffner, that, “I cannot wait until the
Union gets back in power.” Schaffner responded, “Talk
like that will get you in trouble.” We find that the clear
message of Schaffner’s statement was that Kessinger
could expect adverse consequences if he continued to
openly support the Union. As such we find the remark
violative of Section 8(a) (1). Southwest Distributing Co.,
301 NLRB 954, 975 (1991). Further, because it was
clearly a coercive statement and, because of the other
violations found, we disagree with the judge that this
violation is isolated or de minimis.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the
collective-bargaining relationship between the Respon-
dent and ATSEA from its inception violated Section
8(a)(2) and (1) we shall order that the parties cease and
desist unless and until ATSEA is certified as the exclu-
sive collective-bargaining agent for the unit employees.
However, nothing here shall be construed as requiring or
permitting the varying or abandoning of any provision
contained in the collective-bargaining agreement be-
tween the parties which increased wages, benefits and or
other employees rights and privileges over those which
AT SYSTEMS WEST, INC. 63
previously existed. See, e.g., Natico, Inc., 302 NLRB
668, 690 (1991).
We shall also order that the Respondent cease and de-
sist from threatening employees with unspecified repri-
sals for speaking favorably about the Union.
We shall enter an affirmative bargaining order, which
requires bargaining for at least a reasonable period of
time as the appropriate remedy for the Respondent’s
unlawful withdrawal of recognition from the Union.
First, we find that the Respondent has already committed
itself to bargain with the Union by virtue of the terms of
the settlement agreement into which it voluntarily en-
tered. Thus, an affirmative bargaining order in these
circumstances restores the status quo as agreed to by the
Respondent.
Additionally, for the reasons fully set forth in Caterair
International, 322 NLRB 64 (1996), we find that an af-
firmative bargaining order is warranted. We adhere to
the view, reaffirmed by the Board in Caterair, supra, that
an affirmative bargaining order is “the traditional, appro-
priate remedy for an 8(a)(5) refusal to bargain with the
lawful collective-bargaining representative of an appro-
priate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In Vincent, 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 bargaining representatives;
and (3) whether alternative remedies are adequate to
remedy the violations of the Act.” 209 F.3d at 738.
Consistent with the court’s requirement, we have ex-
amined the particular facts of this case as the court re-
quires, and we find that a balancing of the three factors
warrants an affirmative bargaining order.11
(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-

11 Chairman Battista 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 District of Columbia Circuit Court of Appeals that a case-by-
case analysis is required to determine if the remedy is appropriate. See
Saginaw Control, supra, 339 NLRB 541, 546 fn. 8 (20030; Eden Gar-
dens Nursing Home, 339 NLRB 71, 72 fns. 9 and 10 (2003). On the
facts of this case, he finds a bargaining order is warranted.
spondent’s unlawful withdrawal of recognition. At the
same time, an affirmative bargaining order does not un-
duly prejudice the Section 7 rights of employees who
may oppose continued union representation, because its
status is temporary.
Moreover, we have previously found that the Respon-
dent committed numerous other unfair labor practices in
addition to unlawfully withdrawing recognition. These
include dealing directly with employees regarding sig-
nificant terms and conditions of employment, soliciting
decertification of the Union, and interfering with internal
union procedures. The Respondent’s efforts in fact re-
sulted in an employee petition seeking the end of union
representation, which the Respondent honored by with-
drawing recognition from the Union, and recognizing
and entering into a contract after one day of negotiations
with another labor organization. Under these circum-
stances, it is only by restoring the status quo ante and
requiring the Respondent to bargain with the Union for a
reasonable period of time that employees will be able to
fairly decide for themselves whether they wish to con-
tinue to be represented by the Union.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violation, because it would permit a decertifi-
cation petition to be filed before the Respondent had af-
forded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and the nature of the Respondent’s unfair labor
practices were likely to have a continuing effect, thereby
tainting any employee disaffection from the Union aris-
ing during that period or immediately thereafter. We find
that these circumstances outweigh the temporary impact
the affirmative bargaining order will have on the rights
of employees who oppose continued union representa-
tion.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar for a reasonable period of time is necessary in this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
case to fully remedy the Respondent’s unlawful with-
drawal of recognition.
ORDER
The Respondent, AT Systems West, Inc. (formerly
known as Armored Transport, Inc.), Sacramento, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully withdrawing recognition from the Un-
ion and refusing to bargain with it as the exclusive col-
lective-bargaining representative of the employees em-
ployed in the bargaining unit described below.
(b) Recognizing Armored Transport Sacramento Em-
ployees Association and executing a collective-
bargaining agreement with it at a time when AT Systems
West is obligated to recognize and bargain with the Un-
ion.
(c) Giving effect to its April 15, 2000 contract with
Armored Transport Sacramento Employees Association
or to any extension, renewal or modification of it; pro-
vided however, that nothing in this Order shall authorize
or require the elimination of any wage increase or other
benefits, terms, and conditions of employment that may
have been established pursuant to the performance of
those contracts.
(d) Threatening employees with unspecified reprisals
if they continue to speak favorably about the Union.
(e) 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 Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
Included: All full-time and regular part-time
driver/messengers employed by the Respondent at
1475 Overland Court, West Sacramento, California.
Excluded: All other employees including office-clerical
employees, and supervisors as defined in the Act.

(b) Withdraw recognition from the Armored Transport
Sacramento Employees Association as the representative
of its employees unless and until that labor organization
has been certified by the Board as the exclusive bargain-
ing representative of those employees.
(c) Within 14 days after service by the Region, post at
its facility in Sacramento, California, copies of the at-
tached notice marked “Appendix.”12 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 31, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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 closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 17,
2000.
(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-
testing to the steps that the Respondent has taken to
comply with this Order.

CHAIRMAN BATTISTA, concurring in part and dissenting
in part.
I agree with my colleagues that, in the circumstances
of this case, the Respondent did not bargain with the Un-
ion for a reasonable period of time following the settle-
ment, and thus it was not privileged to withdraw recogni-
tion from the Union. Contrary to my colleagues, how-
ever, I agree with the judge that the General Counsel has
not established a causal nexus between the Respondent’s
“Don’t Blame Us” letters and the employees’ disaffec-
tion from the Union.
First, the period between the last of the letters and the
employee disaffection was 9 months, a substantial pe-
riod. Further, there were no unfair labor practices during
that period. To the contrary, the parties bargained in
good faith after the last of the letters was sent, and—at
the Union’s request—the Respondent presented a final
offer that the Union presented to an employee ratification
vote in September 1999.
Second, there was an intervening event, closer in time
to the disaffection, which would also reasonably cause
employee disaffection. That event was the ratification
vote. That vote was marred by irregularities in the count.
The Union refused to investigate the matter or order a
recount, even though the number of voters did not match
up with the number of votes cast. The Union’s explana-

12 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.”
AT SYSTEMS WEST, INC. 65
tion (that one or two votes were not significant) was pat-
ently false in light of the one-vote margin in the vote. In
short, the Union was willing to sacrifice employee choice
in order to get the result that it wanted. As found by the
judge, the irregularities in the ratification resulted in “a
core group of Sacramento employees, who had never
been in favor of the Union, [becoming] even more disen-
chanted with the Union.” Given the relative proximity in
time between this event and the employee disaffection,
as compared to the remoteness in time between the Re-
spondent’s unlawful conduct and the disaffection, it is at
least as likely that the former events, and not the latter,
caused the disaffection.
There is also evidence that the employees were dissat-
isfied with the lack of effective representation at the bar-
gaining table. As noted by the judge, at the time the em-
ployees signed the petition in March 2000, 6 months had
elapsed since the ratification vote during which no sub-
stantive bargaining had occurred.
In sum, the General Counsel has not met his burden of
proof that the unlawful conduct caused the disaffection.1
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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 unlawfully withdraw recognition from
the Union and refuse to bargain with it as the exclusive
bargaining representative of our employees at our Sac-
ramento location in the appropriate unit noted below.
WE WILL NOT recognize Armored Transport Sacra-
mento Employees Association or execute a collective-
bargaining agreement with it at a time when we are obli-
gated to recognize and bargain with the Union.
WE WILL NOT give effect to our April 15, 2000 contract
with Armored Transport Sacramento Employees Asso-

1 Quazite Corp., 323 NLRB 511 (1997).
ciation, or to any extension, renewal or modification of
it, provided that nothing here shall authorize or require
the withdrawal or elimination of any wage increase or
other benefits, terms and conditions of employment that
may have been established pursuant to the performance
of such contracts.
WE WILL NOT threaten employees with unspecified re-
prisals if they continue to speak favorably about the Un-
ion.
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
Union as the exclusive representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

Included: All full-time and regular part-time
driver/messengers employed by us at 1475 Overland
Court, West Sacramento, California.
Excluded: All other employees including office-clerical
employees, and supervisors as defined in the Act.

WE WILL withdraw recognition from Armored Trans-
port Sacramento Employees Association as the represen-
tative of our employees unless and until that labor or-
ganization has been certified by the Board as the exclu-
sive bargaining representative of those employees.

AT SYSTEMS WEST, INC.
Nathan Laks, Esq. and Jerry J. George, Esq., for the General
Counsel.
Marta M. Fernandez, Esq. (Jeffer, Mangels, Butler & Marmo
LLP), of Los Angeles, California, for the Respondent.
Scott A. Brooks, Esq. (Gregory, Moore, Jeakle, Heinen, Ellison
& Brooks P.C.), of Detroit, Michigan, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice, a hearing in this matter was held before me in Los
Angeles, California, on June 11, 12, and 13, 2001. The charge
in the captioned case was filed on February 7, 2001, by Interna-
tional Union, Security, Police and Fire Professionals of Amer-
ica, Local 100 (SSFPA), f/k/a International Union, United Plant
Guard Workers of America, and its Amalgamated Local No.
100 (Union). On March 20, 2001, the Regional Director for
Region 31 of the Board (the Board) issued a complaint and
notice of hearing alleging violations by AT Systems West, Inc.
(formerly known as Armored Transport, Inc.) (Respondent) of
Section 8(a)(1), (2) and (5) of the National Labor Relations Act
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66
(the Act). The Respondent, in its answer to the complaint, duly
filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), counsel for the Respondent, and counsel for the
Union. Upon the entire record, and based upon my observation
of the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with offices and places of
business in various cities in California, where it is engaged in
the transportation of cash and valuables. In the course and con-
duct of its business operations, the Respondent annually pur-
chases and receives goods at its California facilities valued in
excess of $50,000 directly from points outside the State of Cali-
fornia. It is admitted and I find that the Respondent is and at all
material times has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union is
and has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent unlawfully withdrew recognition from the Union in
violation of Section 8(a)(5) of the Act, and thereafter entered
into a collective-bargaining agreement with a different labor
organization in violation of Section 8(a)(2) of the Act.
B. The Facts
This matter primarily concerns the Respondent’s Sacra-
mento, California facility. Prior to the incidents involved in this
proceeding, the Sacramento employees had organized them-
selves into an association and this association had entered into
several collective-bargaining agreements with the Respondent.
On July 22, 1998, following a Board, conducted representation
election on July 14, 1998, the Union herein was certified as the
exclusive collective-bargaining representative of the Respon-
dents Sacramento, California full-time and regular part-time
driver/messenger guards and vault driver/messengers. Abun-
dant record evidence shows that the core group of several Sac-
ramento employees remained opposed to the Union at all times
material herein.
Thereafter bargaining negotiations, which simultaneously
involved the Sacramento unit as well as many additional units
for which the Union was the collective-bargaining representa-
tive, did not result in a collective-bargaining agreement for the
Sacramento unit.
On March 3, 1999, ostensibly frustrated with the inability to
reach agreement upon a contract, the Respondent sent lengthy
letters entitled “Don’t Blame Us” to effected employees at
various of its facilities, including the Sacramento facility. In
response, the Union filed a charge alleging that the letters were
inflammatory and were designed to unlawfully encourage em-
ployee disaffection and loss of support for the Union. The Re-
gional Office of the Board issued a complaint, and the matter,
having been litigated, is currently pending before an adminis-
trative law judge for decision.
In July 1999, the Respondent implemented a new wage scale
for the Sacramento employees. The Union filed a charge alleg-
ing, inter alia, that this constituted an unlawful unilateral
change. While the charge was pending, negotiations continued.
On September 9, 1999, after some approximately 14 months
of unsuccessful bargaining, the Respondent submitted a “last,
best and final” proposal to the Union, with the understanding
that the Sacramento employees would be permitted to vote on
the contract. According to the Respondent’s letter accompany-
ing this “last, best and final” proposal, the request for such a
proposal was in response to the Union’s request that this be
done. The Respondent’s letter states, inter alia:

WE agree with the union’s request at this time because the
only outstanding issue keeping you from providing a positive
recommendation [to the unit employees in favor of accepting
the contract] appears to be the union’s insistence on a “closed
shop.” Further, we understand that you will request that the
bargaining unit go on strike over this issue.

On September 18, 1999, the Union conducted a ratification
vote among the Sacramento unit employees. The core group of
Sacramento employees who were in favor of ratification of this
proposed contract monitored this vote to insure that it would
fairly reflect the wishes of the employees. It turned out that the
vote was 21 against ratification and 20 in favor of ratification.
However, each employee who voted was required to sign a
document prior to voting, and the number of votes counted,
when compared with this document, reflected that there were
two more votes than there were names of voters. Employees
objected to the vote and pointed out the discrepancy to the Un-
ion’s official, Troy Nelsen, who stated, in effect, that the vote
was accurate enough, and that the one or two vote difference
was not significant enough to warrant a revote.
On December 16, 1999, the Union and Respondent entered
into an informal Board settlement agreement, containing a
nonadmission clause, and providing for the posting of an ap-
propriate Board notice in which the Sacramento employees
were advised that the Respondent would not implement new
wages or wage rates without prior notice to the Union, and
would, on request, meet and bargain with the Union.
On November 14, 1999, the Respondent implemented the
terms of its last, best and final proposal. The Union did not file
any unfair labor practice charges against the Respondent as a
result of the unilateral implementation of the proposal.
A week or so prior to March 17, 2000, several employees
who had been active on behalf of the aforementioned employee
association and who were opposed to the Union, began solicit-
ing signatures among the Sacramento unit employees in order
to indicate that they no longer desired to be represented by the
Union. While the document that they circulated had no heading
AT SYSTEMS WEST, INC. 67
and no written declaration of purpose,1 the solicited employees
were told that their signature was needed so that the Union
would no longer remain their collective bargaining representa-
tive and to further indicate that they were in favor of entering
into the agreement that the Respondent had previously imple-
mented. It is undisputed that a majority of unit employees
signed this document. Upon obtaining an appropriate number of
signatures on this document the persons who were instrumental
in this endeavor wrote the following letter to the Respondent,
attaching the list of signatures:

We the employees of Armored Transport, Sacramento would
like to sign the current Implemented labor agreement. We as a
[sic] employee group voted to no longer be represented by
[the Union]. And have chosen to represent ourselves in any
further contract negotiations.

This document was signed by three employees under the head-
ing of “Sacramento Employee Representative,” and was handed
to the Sacramento branch manager.2 Upon receiving these
documents the Respondent determined that a majority of its
Sacramento employees no longer wished to be represented by
the Union. Further, it engaged in bargaining with designated
representatives of the group, and after one bargaining session
on or about April 7, 2000, it entered into a collective-
bargaining agreement with “Sacramento Employees Associa-
tion,” dated April 10, 2000, extending from April 15, 2000, to
January 31, 2003.3 Attached to the agreement, at the request of
the Respondent, is the following acknowledgment, signed by
33 employees, well over a majority of the Sacramento unit
employees:

Labor Agreement Between Armored Transport, Inc. and
Armored Transport
Sacramento Employees Association Effective as of
April 15, 2000

I have read and understand this agreement. I acknowl-
edge that by signing this Agreement, I agree to its terms
and conditions as executed by the Company and the Em-
ployees’ Association. I acknowledge that I did not rely on
any inducements, promises or presentations made by the
Company, any of its agents, servants or employees, or any
other person or entity other that the representatives of our
Association. I have signed this form freely and voluntarily.

1 I find that the form was a common form utilized by the Respondent
to document attendance at meetings, that it was readily accessible to
any employee, and that, contrary to one of the General Counsel’s wit-
nesses, it did not bear the social security numbers of any employees.
2 It is clear from the record evidence, and I find, that the Union and
or its local Sacramento representatives, were apprised of the employ-
ees’ decertification efforts.
3 The proposal that the Respondent unilaterally implemented in No-
vember 1999, which was not acceptable to the Union, had an expiration
date in 2000. Upon entering into a new contract with the Sacramento
Employees Association, it was considered desirable to have a 3-year
contract. In addition, because of the term of the contract, wage progres-
sions, and wage rates were adjusted to reflect additional wage increase
over the term of the contract.
Jayson Kessinger was a unit employee of the Respondent
from 1996 until October 31, 2000. Kessinger, who had been the
Union’s steward at the Sacramento facility, testified that in
about April 2000, apparently sometime after the Respondent
had withdrawn recognition from the Union and had recognized
the Sacramento Employees Association,4 he happened to be
having a work-related conversation with Steven Schaffner,
assistant manager of the facility, and “somehow we got on the
topic of Union.” Kessinger said that, “I cannot wait until the
Union gets back in power,” and, according to Kessinger,
Schaffner replied that, “[t]alk like that will get you in trouble.”
Nothing further was said. Schaffner did not testify in this pro-
ceeding.
C. Analysis and Conclusions
The General Counsel maintains5 that issues surrounding the
March 3, 1999 “Don’t Blame Us” letters, now pending before
an administrative law judge, preclude an immediate finding that
the Respondent was privileged to withdraw recognition from
the Union and recognize and enter into an agreement with the
Sacramento Employees Association. Thus, it is maintained that
if the said letters are found to be an unlawful inducement to the
employees to disaffect from the Union, the Respondent was not
at liberty to take advantage of the fruits of its unlawful conduct.
The “Don’t Blame Us” letters were sent to the Sacramento
employees in March 1999. There was no overt disaffection
from the Union among the Sacramento employees until March
2000, 1 year later. There was an intervening contract ratifica-
tion vote taken in September 1999, as a result of which a core
group of Sacramento employees, who had never been in favor
of the Union, became even more disenchanted with the Union
because it appeared that the critically close ratification vote was
tainted and that the Union would not agree to a revote. It was 6
months after the ratification vote, during which time no pro-
gress was made in bargaining, that the Sacramento employees
were asked by fellow employees, clearly without any induce-
ment, I find, by the Respondent, to sign a petition to remove the
Union as their collective-bargaining representative. Under these
circumstances, I find that it is highly unlikely that the “Don’t
Blame Us” letters had any effect whatsoever on employee dis-
affection. I, therefore, find no merit to this contention of the
General Counsel.
The General Counsel also maintains that the Respondent is
precluded from withdrawing recognition because of the settle-
ment agreement entered into on December 16, 1999. Thus, the
settlement agreement provides that the Respondent will not
engage in unlawful unilateral conduct and will continue to bar-
gain in good faith. There is no specific time for the mandated
continuation of good-faith bargaining following a settlement
agreement that provides for such bargaining. Textron, Inc., 300
NLRB 1124 fn. 1, 1130 (1990); Van Ben Industries, 285 NLRB
77 (1987). Rather, the criterion to be followed is that a “reason-
able” period for bargaining, upon the Union’s request, must be
permitted. The record is clear that the parties bargained well
4 The complaint alleges that this conversation took place in October
2000.
5 The positions of the General Counsel and the Union are substan-
tially similar.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
prior to December 1999, that there was every opportunity for
bargaining after December 1999, and that perhaps other than
the exchange of a few insubstantial letters there was no further
bargaining and no progress was made. This is not a situation
where bargaining was at an incipient stage, or where the parties
had not had an opportunity to present and discuss their propos-
als at length, or where there was at least some reasonable ex-
pectation that further bargaining would at least move the parties
from dead center. Indeed, it appears that the prospects were so
dismal that the Union did not even file a charge to protest the
Respondent’s November 1999 unilateral implementation of the
entire proposed contract. Under the circumstances, I find that
the 3-month period between the date of the settlement agree-
ment and the date of the Respondent’s withdrawal of recogni-
tion was reasonable under the circumstances to have permitted
effective bargaining, and I find no merit to the General Coun-
sel’s argument in this regard.
It is argued that the Respondent could not have had a good-
faith doubt of the Union’s majority status as the list furnished
by the Sacramento employee representatives did not have a
heading and did not on its face declare its purpose. For exam-
ple, as maintained by the Union, the list of names submitted to
the Respondent could have simply been a list of those employ-
ees who wanted to attend an employee picnic. I conclude that
the covering letter, accompanying the list, was sufficient to
advise the Respondent of the fact that the signatory employees
no longer wanted the Union to remain their bargaining repre-
sentative. There simply was no cause for the Respondent to
suspect that the representations in the covering letter were bo-
gus, and I conclude that the Respondent was privileged to rely
upon such representations. See Burger Pits, Inc., 273 NLRB
1001 (1984), affd. sub nom. Hotel & Restaurant Employees
Local 19 v. NLRB, 785 F.2d 1996 (9th Cir. 1986). Nor, appar-
ently, did the General Counsel believe that the list of signatures
was not what it was purported to be, as the Regional Office
undertook no investigation into the authenticity of the docu-
ment. Nor is there any evidence in this proceeding to the con-
trary. Accordingly, I find that the Respondent was privileged to
withdraw recognition upon receipt of the list and the accompa-
nying letter, and that in fact a majority of the Sacramento unit
employees clearly indicated that they no longer desired to be
represented by the Union.
On the basis of the foregoing, I further find that the Respon-
dent was privileged to negotiate with the Sacramento Employ-
ees Association and to enter into a collective-bargaining agree-
ment with that labor organization. Nor does there appear to be
anything sinister or unlawful about the Respondent’s desire to
have each of the employees acknowledge the fact that they read
the agreement and agreed to its terms. Rather, this appears to be
additional proof that a clear majority of the Respondent’s em-
ployees were no longer interested in representation by the Un-
ion.
I find that the remark to employee Kessinger by Assistant
Manager Schaffner that support for the Union would get him in
trouble is de minimus under the circumstances, and incidental
to the issues presented in this proceeding. Therefore, I conclude
that this isolated remark, which could be interpreted to mean
that support for the Union would get him in trouble with the
majority of employees who disaffected from the Union, does
not warrant a remedial order.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the
complaint.
[Recommended Order for dismissal omitted from publica-
tion.]