Fruehauf Trailer Services

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 393 (N.L.R.B. 2001)

FRUEHAUF TRAILER SERVICES 393
Fruehauf Trailer Services, Inc., a wholly-owned sub-
sidiary of Wabash National Corporation and In-
ternational Association of Machinists and Aero-
space Workers, District Lodge 751, affiliated
with International Association of Machinists and
Aerospace Workers, AFL–CIO. Case 19–CA–
25749
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On August 5, 1999, Administrative Law Judge Timo-
thy D. Nelson issued the attached decision. The Respon-
dent, Fruehauf Trailer Services, Inc., a wholly-owned
subsidiary of Wabash National Corporation, filed excep-
tions 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,1 and conclusions,
and to adopt the recommended Order as modified.
The judge found the Respondent violated Section
8(a)(5) and (1) of the Act by failing to meet and bargain
with International Association of Machinists and Aero-
space Workers, District Lodge 751 (Union), at reason-
able times and intervals after the Respondent recognized
the Union on April 29, 1997,2 as the exclusive collective-
bargaining representative of certain employees at its
newly-acquired Spokane, Washington facility. The
judge also found the Respondent violated Section 8(a)(1)
of the Act on August 21 by denying employee Huston’s
request for union representation during an investigative
interview,3 and by telling him the reason was that the
Spokane facility was “nonunion.” We affirm the judge’s
findings.
Our dissenting colleague contends the Respondent did
not violate its duty to meet at reasonable times by meet-
ing with the Union only once in the 7-month period be-
tween the Respondent’s grant of recognition and its
withdrawal of recognition on November 7. The dissent
echoes the Respondent’s general argument that its two
chosen negotiators, Labor Relations Manager Keith Lane
and Attorney Dennis Homerin, did the best they could to
deal with the substantial bargaining demands placed
upon them by the Respondent’s simultaneous acquisition
of 23 bargaining units.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates are in 1997, unless stated otherwise.
3 See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
As the judge rightly concluded, however, the Respon-
dent’s contentions “in this regard boil down to a ‘busy
negotiator’ defense,” which the Board has consistently
rejected. See Barclay Caterers, 308 NLRB 1025, 1035–
1037 (1992). We find no reason to make an exception
here. As found by the judge, the Respondent—by its own
hand—“virtually guaranteed that some of the unions
would have to wait in line indefinitely” by designating
only Lane and Homerin to negotiate contracts for the 23
bargaining units and by rejecting the Union’s suggestion
of coordinated bargaining.4
As a result, it took two letters from the Union and the
passage of almost 3 months before the Respondent met
with the Union for an initial bargaining session on Au-
gust 21.5 More important, even when the parties finally
met on August 21, the Respondent showed little inclina-
tion to move the bargaining along. The Respondent nei-
ther presented a contract proposal nor offered any sub-
stantive response to the Union’s initial proposal.6
Our dissenting colleague notes that at the conclusion
of the August 21 meeting the Respondent said it would
contact Union Representative McClure about dates for a
followup meeting. But he ignores that the Respondent
failed to do so. See Richard Mellow Electrical Contrac-
tors Corp., 327 NLRB 1112, 1116 (1999) (employer
promised to get back to union with additional meeting
dates but failed to do so). Consequently, on September
25, McClure was forced to complain to the Respondent,
“[i]t has been in excess of a month since the Union gave
you a proposal for a new Labor Agreement . . . [t]o date
we have had no response . . . I am requesting to schedule
a meeting for collective bargaining at the very earliest
mutually agreeable time.”
Furthermore, although the Respondent answered
McClure’s September 25 letter by offering to meet with
the Union on November 18, the Respondent did little else.
Thus, at the time the Respondent withdrew recognition on
November 7, it still had not responded to the Union’s con-
tract proposal or offered any proposal of its own.
4 The Act, of course, generally does not restrict a party’s right to se-
lect whom it pleases as its bargaining representative; provided, how-
ever, “that this designation does not collide with the duty under Section
8(d) ‘to meet at reasonable times.’” Caribe Staple Co., 313 NLRB 877,
893 (1994).
5 As the judge did, we consider these facts as background evidence
shedding light on the Respondent’s overall conduct.
6 The Respondent did alert the Union to a grammatical error in its
proposed dues-checkoff clause.
335 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
For these reasons, as well as those fully discussed by the
judge, we agree with his finding that the Respondent failed
to discharge its duty to meet with the Union at reasonable
times to negotiate a labor agreement for the Spokane unit.
Accordingly, we affirm his finding that the Respondent
violated Section 8(a)(5) and (1) of the Act.
The judge further found that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union on November 7. The Respon-
dent’s withdrawal of recognition was based solely on a
petition it received on November 4, indicating that 5 of
the 10 unit employees no longer desired representation
by the Union. The judge found that the petition was fa-
tally tainted by the Respondent’s prior and contempora-
neous unfair labor practices. Consequently, the judge
concluded that the Respondent’s withdrawal of recogni-
tion based on the tainted petition violated Section 8(a)(5)
and (1). We agree.7
It is settled that an employer may not lawfully with-
draw recognition from a union based on employee ex-
pressions of disaffection with the union where the em-
ployer’s own unfair labor practices caused or meaning-
fully contributed to that disaffection. See Master Slack
Corp., 271 NLRB 78, 84 (1984). In Master Slack, the
Board considered the following factors in determining
whether there was a causal relationship between an em-
ployer’s unfair labor practices and a subsequent petition
for decertification:

(1) The length of time between the unfair labor prac-
tices and the withdrawal of recognition; (2) the nature
of the illegal acts, including the possibility of their det-
rimental or lasting effect on employees; (3) any possi-
ble tendency to cause employee disaffection from the
union; and (4) the effect of the unlawful conduct on
employee morale, organizational activities, and mem-
bership in the union. Id.

Applying these factors here, we find a causal relationship
between the Respondent’s unfair labor practices and the
November 4 petition upon which the Respondent based its
withdrawal of recognition.8
The record shows a close temporal proximity between
the Respondent’s unfair labor practices and its with-
drawal of recognition. Thus, the Respondent’s with-

g employees.10

7 The General Counsel specifically withdrew reliance upon the the-
ory that the Respondent’s recognition of the Union after acquiring the
facility gave rise to an “irrebuttable presumption” of the Union’s major-
ity status for a “reasonable time.” But see St. Elizabeth Manor, Inc.,
329 NLRB 341 (1999); Inn Credible Caterers, Ltd., 333 NLRB 898
(2001).
8 Our dissenting colleague’s finding of no taint is premised on his
view that the Respondent did not violate Sec. 8(a)(5) and (1) by failing
to meet with the Union at reasonable times.
drawal of recognition occurred in the midst of its con-
tinuing unlawful failure to meet and bargain with the
Union at reasonable times and intervals, and little more
than 2 months after the Respondent unlawfully denied
Huston his Weingarten right to union representation on
the asserted ground that the Spokane facility was “non-
union.”
The Respondent’s unfair labor practices also clearly
are of a nature that tends to have a lasting negative effect
on employees and to cause disaffection from a union.
The Board has long recognized that dilatory bargaining
tactics such as those engaged in by the Respondent have
a tendency to invite and prolong employee unrest and
disaffection from a union. See The Westgate Corp., 196
NLRB 306, 313 (1972) (when an employer delays bar-
gaining, “unrest and suspicion are generated, the conclu-
sion of an agreement is delayed, and the status of the
bargaining representative is disparaged”); Little Rock
Downtowner, Inc., 145 NLRB 1286, 1305 (1964), enfd.
341 F.2d 1020 (8th Cir. 1965) (delayed bargaining may
invite or prolong employee discontent); “M” System,
Inc., 129 NLRB 527, 548–549 (1960) (dilatory bargain-
ing tactics cause employee frustration at their bargaining
representative’s failure to report progress).9 Respon-
dent’s unlawful refusal to allow Huston union
representation, assertedly because the Spokane facility
was “nonunion,” would also likely contribute to
employee disaffection. Such actions negate the very
essence of the Union’s representative role and serve to
undercut the Union’s standing amon
The Respondent’s unlawful conduct is also of a type
that reasonably tends to have a negative effect on organ-
izational activities and union membership. As indicated
above, the Respondent failed to meet and bargain at rea-
sonable times and intervals, refused to permit union rep-
resentation at an investigative interview, and declared the
facility was “nonunion.” These actions reasonably con-
9 The Union had represented employees at the Spokane facility for at
least the preceding 12 years without any evidence of growing discon-
tent with the Union during that time period. It was only after the Re-
spondent unlawfully failed to attend to bargaining with the Union,
thereby forestalling the possibility that a contract might soon be
reached, that the employees expressed dissatisfaction with the Union.
Absent any convincing evidence of an alternative explanation, we find
it reasonable to infer that the Respondent’s unlawful conduct was re-
sponsible for that discontent. See Williams Enterprises, 312 NLRB 937,
940 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995).
10 With respect to the “nonunion” statement, see Williams Enter-
prises, supra at 938 fn. 5, 940 (employer’s stated intention to operate
nonunion “strikes at the heart of the relationship between the employ-
ees and the [u]nion,” and “would reasonably tend to cause employee[]
disaffection from the [u]nion.”). See also Soltech, Inc., 306 NLRB 269,
273 (1992); Advanced Stretchforming International, 323 NLRB 529,
530–531 (1997), enfd. in pertinent part 233 F.3d 1176 (9th Cir. 2000).
FRUEHAUF TRAILER SERVICES 395
vey the message that union activity is futile, and would
clearly tend to undermine the employees’ confidence in
the effectiveness of their selected collective-bargaining
representative.
For all of these reasons, we agree with the judge that
the Respondent’s unfair labor practices tainted the peti-
tion underlying the Respondent’s November 7 with-
drawal of recognition from the Union. We therefore find
that the Respondent’s withdrawal of recognition violated
Section 8(a)(5) and (1) of the Act.
Finally, we also agree with the judge, for the reasons
fully set forth in Caterair International, 322 NLRB 64
(1996), that an affirmative bargaining order is warranted
in this case as a remedy for the Respondent’s unlawful
withdrawal of recognition from the Union. We adhere to
the view, reaffirmed by the Board in that case, that an
affirmative bargaining order is “the traditional, appropri-
ate remedy for an 8(a)(5) refusal to bargain with the law-
ful collective-bargaining representative of an appropriate
unit of employees.” Id. at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
that the Board justify, on the facts of each case, the im-
position of such an order. See, e.g., Vincent Industrial
Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (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 Vin-
cent, 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 em-
ployees’ § 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their collec-
tive bargaining representatives; and (3) whether alterna-
tive remedies are adequate to remedy the violations of
the Act.” 209 F.3d at 738.
We respectfully disagree with the court’s requirement,
for the reasons set forth in Caterair. Nevertheless, we
have examined the particular facts of this case, as the
court requires, and we find that a balancing of the three
factors warrants an affirmative bargaining order.
(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 from the
Union. At the same time, an affirmative bargaining or-
der does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because its attendant bar to raising a question concerning
the Union’s continuing majority status is temporary.11
Moreover, in addition to unlawfully withdrawing rec-
ognition, the Respondent unlawfully failed to meet and
bargain with the Union at reasonable times and intervals,
unlawfully deprived an employee of his Weingarten right
to union representation, and unlawfully declared that the
Spokane facility was “nonunion.” These actions clearly
signaled to the employees the Respondent’s disregard for
their collective-bargaining representative. Although sev-
eral years have elapsed since they occurred, Respon-
dent’s unfair labor practices, particularly its failure to
meet and bargain at reasonable times and intervals and
withdrawal of recognition, would likely have a long-
lasting negative effect on employee support for the Un-
ion and for collective bargaining altogether.
(2) An affirmative bargaining order also serves the im-
portant policies of the Act to foster meaningful collective
bargaining and industrial peace. The temporary decerti-
fication bar inherent in this order removes the Respon-
dent’s incentive to further delay bargaining or to engage
in any other conduct that would further undercut em-
ployee support for the Union. It also ensures that the
Union will not be pressured, by the possibility of a decer-
tification petition, to achieve immediate results at the
bargaining table following the Board’s resolution of its
unfair labor practice charges and issuance of a cease-and-
desist order. Providing this temporary period of insu-
lated bargaining will also afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the Respondent’s unlawful conduct.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances because it would permit
a decertification petition to be filed before the Respon-
dent had afforded the employees a reasonable time to
regroup and bargain through their chosen representative
in an effort to reach a collective-bargaining agreement.
Such a result would be particularly unfair here, where
litigation occasioned by the Respondent’s unfair labor
practices took several years and, as discussed above, the
unfair labor practices were likely to have a continuing
effect, thereby tainting any employee disaffection from
the Union arising during that period or immediately
thereafter. Indeed, permitting a decertification petition to
be filed immediately might very well allow the Respon-

11 As found by the judge and affirmed above, the November 4 decer-
tification petition did not reflect employee free choice under Sec. 7, but
rather the effect of the Respondent’s prewithdrawal unfair labor prac-
tices. This additional circumstance further supports giving greater
weight to the Sec. 7 rights that were infringed by the Respondent’s
unlawful withdrawal of recognition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
dent to profit from its own unlawful conduct. We find
that these circumstances outweigh the temporary impact
the affirmative bargaining order will have on the rights
of employees who oppose continued representation by
the Union.
For all of the foregoing reasons, we find that an af-
firmative bargaining order with its temporary decertifica-
tion bar is necessary to fully remedy the Respondent’s
unlawful refusal to bargain with the Union in this case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Fruehauf
Trailer Services, Inc., a wholly-owned subsidiary of Wa-
bash National Corporation, Spokane, Washington, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Upon the Union’s request, meet and bargain in
good faith with the Union through those representatives,
and do so promptly and regularly, at reasonable times
and intervals, for purposes of concluding a collective-
bargaining agreement for the Spokane unit, or for any
other lawful purpose having to do with a mandatory sub-
ject of bargaining, and if an understanding is reached,
embody such understanding in a signed agreement.”
2. Substitute the attached notice for that of the
administrative law judge.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I find that the Respondent
did not violate Section 8(a)(5) of the Act. As an initial
matter, I note that the judge found that the bargaining
conduct outside the 10(b) limitations period (i.e., prior to
Aug. 11, 1997) was admissible as background evidence. 1
He assumed arguendo that Section 10(b) barred a finding
that the Respondent committed violations before August
11, 1997. Nevertheless, the judge found, substantially
based on the Respondent’s post-August 11 behavior, that
the Respondent had bargained in bad faith. I disagree.
The judge’s finding in this regard was premised in part
on his characterization of the August 21, 1997 Spokane
meeting between the Respondent and the Union employ-
ees as “perfunctory and inconclusive.” Concededly, if
one focuses solely on the meeting of August 21, it does
indeed appear that little of substance was accomplished.
However, the August 21 meeting must be examined in
the context of prior events. The Respondent had been a
nonunion company. In 1997, it acquired 23 bargaining
units at one time, including the one in the instant case

1 The charge in the instant case, alleging inter alia that the Respon-
dent had bargained in bad faith, was filed on February 11, 1998.
(Spokane). The Respondent assigned its only experi-
enced labor negotiator, Keith Lane, to negotiate concern-
ing its newly acquired units, and also retained outside
counsel, Dennis Homerin, to assist Lane. In view of the
simultaneous acquisition of 23 units, the Respondent had
to establish some bargaining priorities. The Respondent
reasonably decided to accord top priority to bargaining
with the United Auto Workers Local that represented the
employees at the largest of its newly-required plants, in
Fort Madison Island, Iowa. The Respondent did not,
however, neglect its obligations to the other units. With
respect to the instant unit, the Respondent agreed to meet
on August 21.2 At the meeting of August 21, the Union
presented a comprehensive written proposal for a new
agreement to Homerin and Lane. They had never seen it
before. The parties reviewed the document. Under-
standably, the Respondent did not present counterpro-
posals on the spot. Homerin said that the Respondent
would need some time to review the Union’s proposal,
and cited a difficult bargaining schedule with other un-
ions in other units around the country. He told Union
Business Representative Craig McClure that he would
contact him about future dates for a followup meeting as
to the Spokane unit.
Under the circumstances, I find that the Respondent’s
conduct at the August 21 meeting was entirely reason-
able. I disagree with the judge’s description of the meet-
ing as “perfunctory” and with his use of the meeting as
evidence of bad-faith bargaining on the part of the Re-
spondent.3
My colleagues state that, at the August 21 meeting, the
Respondent showed little inclination to move the bar-
gaining along and neither presented a contract proposal
nor offered any substantive response to the Union’s ini-
tial proposal. As noted above, however, Homerin and
Lane were presented with a comprehensive written pro-
posal for a new agreement, one they had never seen be-
fore. Under the circumstances, it is not at all surprising
that they did not immediately offer counterproposals.
Indeed, it would have been much more surprising if they
had done so. In sum, I find nothing in the conduct of
Homerin and Lane at the August 21 meeting to indicate
an intent on the Respondent’s part to frustrate, delay, or
impede bargaining.
My colleagues further state that the Respondent failed
to contact McClure about dates for a followup meeting.
The Union did not ask for a specific time for a Respon-
2 There can be no contention of dilatoriness between April and Au-
gust 11, for that is outside the 10(b) period.
3 There is no evidence that the Union complained, at the time, about
the meeting. It did not file a charge about the matter until February 11,
1998.
FRUEHAUF TRAILER SERVICES 397
dent follow up, and Respondent did not promise one.
Moreover, Respondent told McClure on August 21 that
the Respondent would need time to review the Union’s
new comprehensive proposal and that the Respondent
was faced with a difficult bargaining schedule with other
unions in other units around the country. The Union did
not protest. Consistent with this, the Union did not write
Respondent until September 25, and Lane responded
quite promptly to the September 25 letter.
On October 1, Lane wrote to McClure, proposing a
November 18 meeting date.4 On October 21, McClure
wrote back to Lane, confirming his availability for that
date and asking that Lane let him know the time and
place.
I disagree with the judge’s finding that the Respon-
dent’s proposal for a November 18 meeting constituted
an unreasonable delay. In light of the circumstances
noted above, I find that the proposed date was in keeping
with a good-faith effort on the Respondent’s part to dis-
charge its bargaining obligations not only as to the Spo-
kane unit but also as to the others.5
My colleagues fault the Respondent because, at the
time it withdrew recognition, it had not responded to the
Union’s proposal. However, it must be remembered that,
on October 21, the Union agreed to meet on November
18. If a Respondent proposal had not been made on No-
vember 18, I would agree that this could be an indicium
of bad faith. However, as noted, the meeting was short-
circuited when, on November 4, the employees presented
their petition. I perceive nothing sinister in this sequence
of events.
In sum, I find that: the Respondent did not, within the
10(b) period, employ dilatory tactics; the August 21
meeting was not perfunctory; the Respondent’s proposal
for a November 18 meeting did not constitute an unrea-
sonable delay. I therefore conclude that the Respondent
did not violate Section 8(a)(5) by engaging in bad-faith
bargaining.
On November 4, the Respondent received a petition
signed by 5 of the 10 employees in the Spokane unit,
stating that they no longer wanted to be represented by
the Union. On November 7, Lane wrote to McClure,
stating in pertinent part:

On Tuesday, November 4, 1997, we received a petition
signed by employees in the bargaining unit indicating
that they no longer wish to be represented by your Un-

4 The judge stated incorrectly that the Respondent proposed that the
next meeting be held “some four months after the first meeting.”
5 There is no evidence that the Union complained, at the time, about
the scheduling. As noted above, the charge herein was not filed until
February 11, 1998.
ion. Based on this petition, it is clear that your Union
no longer has majority status in the bargaining unit.
Based on this petition and other objective considera-
tions, we can no longer negotiate with you for an
agreement. The meeting previously scheduled for No-
vember 18, 1997 is, therefore, canceled.

As to the alleged unlawful withdrawal of recognition,
my colleagues, applying the Master Slack6 factors, find a
causal relationship between the Respondent’s unfair la-
bor practices and the November 4 petition on the basis of
which the Respondent withdrew recognition. They
therefore uphold the judge’s finding that the Respon-
dent’s withdrawal of recognition was unlawful. I dis-
agree.
As noted supra, I do not find that the Respondent
unlawfully failed to bargain in good faith with the Union.
Thus, the employee petition was untainted. I recognize
that there was another violation, at least under current
Board law. Respondent denied employee Huston’s re-
quest for union representation during an investigative
interview, which denial it explained by telling him that
the Spokane facility was “nonunion.”7 However, such
conduct is much less potent as a breeder of employee
disaffection than, for example, a refusal to bargain in
good faith. I also note the lack of any finding by the
judge as to how many employees were aware of this sin-
gle incident. Finally, I note that the incident took place
more than 2 months before the employee disaffection. In
sum, I do not find that the Huston incident, standing
alone, was a sufficient basis on which to conclude that
the employee petition was tainted.
I would therefore dismiss the allegation concerning
withdrawal of recognition.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

6 Master Slack Corp., 271 NLRB 78 (1984).
7 The facility was a unionized one at that point. Further, under cur-
rent Board law, even employees at non-union facilities have a right to
assistance at an investigatory interview. Epilepsy Foundation, 331
NLRB 950 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398
Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT withdraw recognition from or other-
wise refuse to recognize International Association of
Machinists and Aerospace Workers, District Lodge 751,
affiliated with International Association of Machinists
and Aerospace Workers, AFL–CIO, as the exclusive
representative for collective-bargaining purposes of em-
ployees in the following-described appropriate bargain-
ing unit (the Spokane unit):

All service and maintenance employees at our
Spokane, Washington Facility: EXCLUDING
all clerical employees, parts room employees,
guards, and supervisors as defined in the Act.

WE WILL NOT fail or refuse to meet and negotiate
with the Union as such representative at reasonable times
and intervals for purposes of concluding a collective-
bargaining agreement for the Spokane unit or for any
other lawful purpose having to do with a mandatory sub-
ject of bargaining.
WE WILL NOT refuse an employee’s request for un-
ion representation during any investigative interview,
which the employee reasonably believes may result in
discipline.
WE WILL NOT tell employees that the Spokane facil-
ity is a nonunion shop.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed in Section 7 of the National Labor Re-
lations Act.
WE WILL restore recognition to the Union as the ex-
clusive representative of employees in the Spokane unit
for all collective-bargaining purposes, and we will so
notify the Union in writing.
WE WILL appoint representatives who will be
promptly and regularly available at reasonable times and
intervals for purposes of collective bargaining with the
Union for the Spokane unit.
WE WILL, upon the Union’s request, meet and bar-
gain in good faith with the Union through those represen-
tatives, and do so promptly, at reasonable times and in-
tervals, for purposes of concluding a collective-
bargaining agreement for the Spokane unit or for any
other lawful purpose having to do with a mandatory sub-
ject of bargaining, and if an understanding is reached,
embody such understanding in a signed agreement.

FRUEHAUF TRAILER SERVICES, INC., A
WHOLLY-OWNED SUBSIDIARY OF
WABASH NATIONAL CORPORATION

Peter G. Finch and Daniel Sanders, Esqs., for the General
Counsel.
Dennis R. Homerin and Brian West Easley, Esqs. (Jones, Day,
Reavis & Pogue), of Chicago, Illinois, for the Respondent.
Christopher T. Corson, Esq., Assoc. General Counsel, IAM, of
Upper Marlboro, Maryland, and Ted Neima, Grand Lodge
Representative, IAM, of Sacramento, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
this case in trial on March 16, 1999, in Spokane, Washington,
where all parties were represented by counsel. Counsel for each
party also filed posttrial briefs, which I have studied.1
This is an unfair labor practice prosecution; it is brought in
the name of the General Counsel of the National Labor Rela-
tions Board by the Regional Director for Region 19 against a
respondent entity identified in the ultimate complaint as “Frue-
hauf Trailer Services, Inc.[FTSI], a wholly owned subsidiary of
Wabash National Corporation [Wabash].”2 (The effect of this
styling, as I construe it, is to make FTSI itself the respondent
party, with the reference to its status as a subsidiary of Wabash
being merely descriptive.) The prosecution traces from original
and amended charges filed against FTSI by International Asso-
ciation of Machinists and Aerospace Workers, District Lodge
751 (the Union), affiliated with International Association of
Machinists and Aerospace Workers, AFL–CIO (IAM).3
The case is grounded in events that began in late April 1997,
when Wabash, as part of a larger acquisition of assets-in-
bankruptcy from Fruehauf Trailer Corporation, acquired a
trailer sales and service facility in Spokane and soon recognized
the Union as the representative of a unit of service and mainte-
nance employees at the facility. At some uncertain point, Wa-
bash created FTSI as a subsidiary corporation, apparently to
function as the entity that would own and operate the Spokane
facility and like facilities around the country also acquired
through the bankruptcy sale.4 Some 7 months later, however,

1 The due date for receipt of briefs was extended to May 5, 1999, on
the request of counsel for the Respondent, based on delay in receiving
the transcript.
2 The caption of this proceeding and the entity identified as the re-
spondent party appear as they are set forth in the first amended com-
plaint and notice of hearing (the complaint), issued by the Regional
Director on March 12, 1999, which superseded an original complaint
issued on September 29, 1998.
3 The original charge was filed on February 11, 1998. The first and
second amended charges were filed, respectively, on February 19, and
April 30, 1998.
4 The timing of FTSI’s origins, and its precise function within Wa-
bash’s operations, are largely obscure on this record. Indeed, the only
FRUEHAUF TRAILER SERVICES 399
on November 7, 1997, Wabash’s corporate labor relations man-
ager, Keith Lane, advised the Union in writing that FTSI was
withdrawing recognition from the Union, and was canceling a
scheduled contract-bargaining meeting, all based on asserted
“objective considerations” (an employee petition) indicating
that the Union “no longer has majority status in the bargaining
unit.”
The complaint alleges, in substance, that FTSI violated Sec-
tion 8(a)(5) of the National Labor Relations Act by failing to
meet and bargain with the Union at reasonable times during the
7-month period preceding the withdrawal of recognition, and
by withdrawing recognition from the Union on November 7,
1997. In addition the complaint alleges that FTSI independently
violated Section 8(a)(1) of the Act in August 1997 by denying
an employee’s request for union representation during an inves-
tigatory interview and by telling the employee that the Spokane
facility was “non-Union.”
FTSI admits that it is an employer engaged in commerce
within the contemplation of Section 2(6) and (7) of the Act, and
that the Board’s jurisdiction is properly invoked,5 but denies all
alleged wrongdoing, and avers that its withdrawal of recogni-
tion from the Union was legally privileged, based on the em-
ployee petition indicating that the Union no longer enjoyed
majority support in the unit.
Based on the findings and reasoning set forth below, I judge
ultimately that all counts in the complaint have substantial
merit.
I. FACTS6
A. Background
1. Wabash acquires certain of FTC’s assets-in-bankruptcy
In October 1996, Fruehauf Trailer Corporation (FTC) filed
for bankruptcy. FTC was then the largest manufacturer of truck
trailers in the world, and also operated a network of 29 trailer
sales and service branches located throughout the United States,
including one in Spokane, Washington, the situs of the current
dispute. The approximately 10 service and maintenance em-
ployees at the Spokane branch were then represented by the
Union and were covered by an existing collective-bargaining

thing the record shows with clarity is that Wabash, acting through its
manager of labor relations, Keith Lane, and its Labor Counsel, Dennis
Homerin, bears ultimate responsibility for the course of conduct alleged
to have violated Sec. 8(a)(5).
5 The amended pleadings establish, and I find, that the Respondent, a
Delaware corporation with headquarters in Lafayette, Indiana, owns
and operates, inter alia, the Spokane trailer sales and service facility,
and, during the 12 months preceding the issuance of the complaint, (a)
sold or provided more than $50,000 worth of goods or services outside
Indiana, and (b) purchased and caused to be transferred and delivered to
its Washington facilities more than $50,000 worth of goods and materi-
als directly from sources outside Washington, or from suppliers with
Washington which, in turn, obtained them from sources outside Wash-
ington.
6 All findings below concerning the background, the recognition of
the Union at the Spokane branch, and the bargaining history preceding
the admitted withdrawal of recognition on November 7, 1997, are based
on undisputed testimony or exhibits of record. The only contested facts
are those associated with transactions at the Spokane branch in late
August 1997, surrounding the alleged violations of Sec. 8(a)(1).
agreement with FTC. Employees at about 11 other such
branches were represented by various other IAM-affiliated
District Lodges.
Wabash National Corporation (Wabash) was then a trailer
manufacturer with headquarters in Lafayette, Indiana. In early
1997, Wabash began negotiations to acquire many of FTC’s
assets-in-bankruptcy, including the network of sales and service
branches, the main object of Wabash’s interest. On March 20,
the bankruptcy court approved an asset-sale agreement between
Wabash and FTC. The sale of assets was perfected on April 16.
The total purchase price was about $50 million. The acquisi-
tions from FTC included not just the sales and service branches
but also a parts distribution center and two manufacturing
plants, one in Tennessee, and the other, larger one in Fort
Madison Island, Iowa, where the approximately 150 workers
had been represented previously by a local of the United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW).
2. Hiring and assumption of labor relations obligations
a. Generally
Before these acquisitions, Wabash had been engaged solely
in the manufacture of trailers, and employed about 4000 unrep-
resented workers. As a result of the acquisitions, however, Wa-
bash became, “overnight,” the effective employer of an addi-
tional 1000 employees at various acquired facilities around the
country, all of whom had previously been employed by FTC.
Wabash’s hiring of former FTC employees to staff its newly-
acquired facilities led, in turn, to its assumption of union recog-
nition and bargaining obligations in many cases. Thus, follow-
ing patterns similar to those described below involving the
Spokane branch, the Respondent soon recognized 12 IAM-
affiliated unions as the representatives of an apparently equal
number of individual bargaining units of service and mainte-
nance employees working in the newly-acquired sales and ser-
vice branches. The Respondent also recognized a number of
other unions as the representatives of another 12 or so individ-
ual units of employees in other newly-acquired facilities. The
most prominent of these latter was the UAW-represented unit at
the Fort Madison Island plant, which would become the largest
single source of new trailers and parts to be sold and serviced
through the branch outlets.
Anticipating all these developments, Wabash had retained
Chicago-based attorney Dennis Homerin to steer it through the
hiring and union-recognition processes, and to assist in new-
contract bargaining with the various newly-recognized unions.
In addition, about 2 weeks before reaching agreement to buy
FTC’s assets, Wabash had promoted Keith D. Lane from his
former position as one of three employees in its office of “As-
sociate Relations” to the newly-created position of “Corporate
Labor Relations Manager,” in which position Lane would be-
come directly responsible for all contract negotiations with the
newly-recognized unions at the acquired facilities. Lane was
picked for this new position because he had been a union mem-
ber and officer in an earlier phase of his career, and was the
only person on Wabash’s staff with any background in union-
management negotiations. Thereafter, Lane and Homerin (with
the occasional involvement of Brian Easley, another attorney in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
Homerin’s firm) handled all negotiations with the newly-
recognized unions.
b. At the Spokane branch
On April 15, 1997,7 Charles Fish, Wabash’s vice president
for human resources, wrote to the Union’s business representa-
tive, Craig McClure, advising that the sale of FTC assets to
Wabash was expected to close on April 16, that FTC had al-
ready notified employees that they will be terminated on that
date, and that Wabash would offer employment to these em-
ployees under certain “initial employment terms,” which were
set forth in an attachment to Fish’s letter to McClure. Fish also
stated that while Wabash did not currently recognize the Union
as the representative of any former FTC employees, and would
not assume the existing collective-bargaining agreement be-
tween the Union and FTC, it was prepared to recognize and
bargain in good faith with the Union “if a majority of its work-
forces [sic] is comprised of former [FTC] employees.”
On April 16, when the asset transfer was completed, Wabash
hired back the 10 service and maintenance employees who had
previously worked in the Spokane Branch for FTC, and these
employees apparently were the only ones hired. Consequently,
on April 29, Attorney Homerin, writing as Wabash’s labor
counsel, wrote to McClure, confirming that “Wabash [was]
extending recognition to your union, covering the bargaining
unit previously represented[,]”8 and that “Wabash [was] pre-
pared to meet for the purpose of negotiating a new collective
bargaining agreement.” Homerin added, however, that,
“[b]ecause of the number of facilities recently purchased by
Wabash National, there will be some delay in scheduling a
bargaining meeting for the facility.”
3. Wabash ignores IAM’s request for bargaining for a “master
agreement,” and sets its own bargaining priorities
On May 6, after Wabash had similarly granted recognition to
other IAM District Lodges representing employees in various
former FTC sales and service branches, IAM’s automotive
coordinator, Merrill Frost, wrote to Attorney Homerin, request-
ing a meeting for the purpose of negotiating a “master agree-
ment covering all IAM locations.” Homerin did not reply, and,
on May 22, Frost wrote to Wabash’s newly-appointed labor
relations manager, Lane, reiterating the same request. So far as
this record shows, Lane did not reply in writing to this request,
either. However, Lane testified generally that Wabash was “not
interested in coordinated bargaining” with IAM, and he and/or
Homerin admittedly communicated this position at least once to
IAM representative Frost and others during a meeting held in
late August, in Seattle, to discuss contract terms for employees
in the former FTC branch in Seattle.

7 All dates below are in 1997 unless I specify otherwise.
8 The complaint alleges, and FTSI’s answer admits, that the recog-
nized unit is an appropriate unit within the contemplation of Sec. 9(b)
of the Act, and is described as follows:
All service and maintenance employees at Respondent’s
Spokane, Washington Facility: EXCLUDING all clerical
employees, parts room employees, guards, and supervisors
as defined in the Act.
In fact, Wabash, through Lane and Labor Counsel Homerin,
had made it a priority to schedule the first negotiations with the
UAW local that represented the 150 employees at its Fort
Madison Island, Iowa plant. Their priorities were influenced by
the fact that this plant would play a critical role in resupplying
the trailers and parts needed by the sales and service branches,
whose inventories had been largely depleted and not restocked
during the period preceding and including FTC’s bankruptcy
filing. Thus it was that bargaining for the UAW-represented
plant began on May 12, while other newly-recognized unions at
other facilities awaited Homerin’s and Lane’s availability.
B. Alleged Unfair Labor Practices
1. The 8(a)(5) counts
a. Events leading to the August 21 bargaining session for the
Spokane unit
On May 16, Labor Relations Manager Lane addressed an-
other letter to the Union at its Spokane office. The letter was
addressed to the attention of Harold Wilson, who recently had
been acting for McClure during the latter’s surgery-related
disability leave. (Wilson was a business representative for an
IAM District Lodge based in Seattle.) In this letter, Lane reiter-
ated Homerin’s April 29 warning to McClure that, “because of
the number of facilities recently purchased by Wabash Na-
tional, there will be some delay in scheduling a meeting for the
[Spokane] facility.” However, Lane also stated that Wabash
had “begun the negotiation process at some of the [other] loca-
tions[,]” and that it was “progressing as quickly as possible in
scheduling other meetings.” And he closed the letter by “re-
spectfully ask[ing] for your patience and understanding during
this process.”
On May 29, McClure, by then back on the job, wrote in re-
ply. He advised Lane that “the Union has drafted a proposal
and is prepared to begin collective bargaining for your Spokane
facility,” and he asked in closing that Lane “submit . . . a list of
your earliest available times to begin negotiations.” Lane did
not specifically respond to this latter request, however, and this
caused McClure to mail another letter to Lane on June 27, re-
peating the same messages.
On July 9, Lane mailed another letter to the Union (mis)ad-
dressed to Wilson’s attention, stating that he would be available
to meet in Spokane “on the morning of Thursday, August
21[.]”9
McClure replied on July 21, confirming the proposed date,
offering the Union’s offices as a meeting site, and asking Lane
to contact him confirming the time and place. On August 1,
after Lane had failed to reply, McClure wrote again to Lane, in
a letter captioned “Second Request,” asking Lane to “confirm
the time and place of the August 21 meeting scheduled in Spo-
kane.” Lane replied by letter dated August 11 (again misad-
dressed to Wilson’s attention), confirming that the meeting
would take place at 1:00 p.m., at the Ramada Inn at the Spo-
9 Lane’s July 9 letter was not only mistakenly addressed to Wilson’s
attention, but it did not acknowledge either of McClure’s prior letters,
and did not present a “list” of available meeting dates, only one date,
August 21.
FRUEHAUF TRAILER SERVICES 401
kane Airport, and expressing his thanks for [“Wilson’s”] pa-
tience and understanding during this process.”
On August 20, Lane and Homerin met with IAM representa-
tives in Seattle, to conduct bargaining for the Seattle branch
unit represented by a District Lodge. (The company representa-
tives were then on what Lane described as a “West Coast
swing,” during which it had scheduled bargaining for various
IAM units in California, Oregon, and Washington.) The IAM
attendees included, in addition to representatives of the Seattle
District Lodge, IAM Automotive Coordinator Frost, IAM’s
Western Region Representative, Frank Santos, as well as the
Union’s Business Representative, McClure, who functioned
solely as an “observer.” While the company representatives did
not object to the presence of these “outsiders,” they reiterated
that they were not interested in “coordinated bargaining,” and
that they were present solely for the purpose of negotiating for
the Seattle unit.
b. August 21 meeting
On August 21, Homerin and Lane met at the Ramada Inn at
the Spokane airport with the Union’s McClure, who was joined
by a Local Bargaining Unit Member and Shop Steward, Marty
Harris, and by IAM representatives Frost, Santos and others.
There, McClure presented to the company team the Union’s
comprehensive written proposal for a new agreement. The par-
ties took an uncertain amount of time reviewing this document,
but engaged in little or no substantive discussion of any of its
provisions.10 When the review was complete, the meeting ef-
fectively ended. The company representatives presented no
counterproposals. McClure asked Homerin about future meet-
ing dates; Homerin promised to “get back” to McClure on the
subject. McClure stressed that it should not take “another five
or six months” to hold the next meeting. Homerin stated that it
would take some time for the company to review the Union’s
proposal, and cited a difficult bargaining schedule with other
unions around the country, but again promised to get back to
McClure about future dates for a follow up meeting regarding
the Spokane unit.
c. Further scheduling developments; the withdrawal
of recognition
Homerin did not get back to McClure during the following
month. On September 25, McClure wrote to Homerin, in mate-
rial part as follows:

It has been in excess of a month since the Union gave you a
proposal for a new Labor Agreement at the Spokane facility.
To date we have had no response. While I am aware you have
many areas to bargain, it does not relieve the Employer of
their obligation to bargain the Spokane location. Therefore, I
am requesting to schedule a meeting for collective bargaining
at the very earliest mutually agreeable time.

10 McClure, whose undisputed testimony is the basis for these find-
ings, specifically recalled only one item in his written proposal that
received comment from a company representative. Thus, McClure
recalled that when the parties were reviewing the Union’s proposal for
a dues-checkoff procedure, Homerin noted that the proposal contained
a confusing double-negative when it stated, “Such written assignments
shall not be irrevocable for a period of more than one (1) year.”

On October 1, Lane replied to McClure’s letter to Homerin,
proposing that “we meet again the evening of November 18,
1997, to continue our discussions on the FTS Spokane facility.”
Although this letter was received by the Union in due course,
McClure was not personally aware of this; therefore, on Octo-
ber 9, he had written a “second request” to Homerin similar to
his September 25 letter.11 When this second request came to
Lane’s attention, Lane wrote a “second reply,” enclosing a copy
of his October 1 reply and reiterating a willingness to meet on
the evening of November 18. On October 21, after receiving
this second reply, McClure wrote back to Lane, confirming his
availability to meet on that evening, and requesting that Lane
let him know the time and place.
The November 18 meeting never took place. In the mean-
time, on or about November 4, under uncertain particular cir-
cumstances, an unknown agent of FTSI received a petition,
apparently signed by five employees in the 10-person Spokane
bargaining unit, stating, “We no longer wish to be represented
by Machinists Union Lodge 751 Local 86.” This caused Lane
to write to McClure on November 7, stating in material part as
follows:

On Tuesday, November 4, 1997, we received a petition
signed by employees in the bargaining unit indicating that
they no longer wish to be represented by your Union.
Based on this petition, it is clear that your Union no longer
has majority status in the bargaining unit. Based on this
petition and other objective considerations, we can no
longer negotiate with you for an agreement. The meeting
previously scheduled for November 18, 1997 is, therefore,
canceled.

2. The 8(a)(1) counts
The alleged violations of Section 8(a)(1) involve two related
claims—first that FTSI’s agents in Spokane (General Manager
Jerry Olson and Service Manager Craig Stelling) unlawfully
denied Spokane unit employee Gary Huston the statutory right,
confirmed by the Supreme Court in Weingarten,12 to union
representation during an investigative interview on August 21
that that led to his 1-day disciplinary suspension on August 22;
second, that in explaining why he was being denied this right,
Stelling coercively told Huston that the Spokane facility was a
“nonunion shop.”
This is a brief background and overview: The alleged viola-
tions occurred in the context of a company investigation into a
dispute between two employees in the bargaining unit, Huston
(an apparent supporter of the Union) and Gary Bogle (whose
purported signature appears on the November 4 petition oppos-
ing union representation, but who did not appear as a witness).
The company’s investigation into the August 21 incident, infra,
took place on the same day, and was followed the next day by
General Manager Olson’s decision to impose a 1-day discipli-
nary suspension on both Huston and Bogle. (Later, as elabo-
rated below, a decision was made by FTSI’s human resource
11 The “second request” is not on record.
12 NLRB v. J. Weingarten. Inc., 420 U.S. 251, 262 (1975). See e.g.,
Consolidated Edison Co. of New York, 323 NLRB 910 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
director to rescind the discipline imposed on both Huston and
Bogle, and to pay them each backpay for the day’s pay each
lost due to the suspensions.)
Huston and Stelling were the only witnesses called to testify
about the underlying transactions, and their testimony is in
conflict about critical details. Thus, while Stelling admits that
he did tell Huston at one point that he could not have union
representation, Stelling insists, contrary to Huston, that this
only occurred at the point when the disciplinary decision was
imparted to Huston on August 22. For reasons further noted
below, I found Huston’s testimony about material events to be
more plausible and credible than Stelling’s, and thus I adopt
Huston’s account, as follows:
On August 21, Bogle approached him from behind and
“body-slammed” him.13 Huston then left his work station and
complained about the attack to Stelling, his and Bogle’s imme-
diate supervisor. Less than an hour later, Stelling came to
Huston’s work station, told him to remove his coveralls and to
follow him to a meeting with General Manager Olson. Huston
said he wanted “union representation.” Stelling replied, “No,
this is a nonunion shop.” Huston removed his coveralls and
followed Stelling, saying again that he wanted union represen-
tation, but receiving no reply from Stelling. They picked up
Bogle on the way and eventually found Olson in the parts de-
partment, and the group then retired to Olson’s office. Once in
the office, Huston again asked for union representation. Olson
looked at Stelling and Stelling again said “No.” Olson then
asked what had happened and Bogle and Huston each competed
to tell his own version. Olson then said that he and Stelling
would look into the matter further and would decide whether
discipline was appropriate.14 Later on August 21, and again on
August 22, Stelling and Olson talked to several other employ-
ees, including the shop steward, Harris. After this was done

13 Huston was not invited to testify about any antecedents to Bogle’s
attack, and the matter is irrelevant to the statutory issues in any case.
However, for the merely curious, I note that Stelling testified that,
shortly before the incident, Bogle had complained to Stelling that
Huston had been calling him a “scab,” and that Stelling should inter-
vene before Bogle took action on his own.
14 Stelling testified that the first and only time that Huston ever asked
for union representation was on August 22, at the time that the discipli-
nary suspension was communicated to him. (If true, Huston would have
no rights to union representation at such a session. Baton Rouge Water
Works, 246 NLRB 995, 997 (1979). Stelling admits that on this occa-
sion he denied the request, saying that there was “no union contract” in
effect at the shop. (He denies saying at any time that “this is a nonunion
shop.”) Stelling’s version of these events was rather summary in char-
acter, and the precise circumstances under which he admittedly made
the latter remarks remain uncertain. Moreover, his recollections—
especially that Huston did not invoke Weingarten rights to union repre-
sentation until a point when those rights no longer existed—struck me
in the end as shaped and tailored to suit the company’s current legal
position. In addition, Stelling’s account does not fit well with the writ-
ten explanation for the denial of union representation given by Olson
when, on September 26, Olson responded to Huston’s in-house com-
plaint, infra. Nor does it fit with the ultimate, October 13 response of
FTSI’s Human Resources Director, Quick, infra. (Neither of the latter
responses claims, as did Stelling, that Huston’s only request for union
representation occurred after the “investigative” stage had passed.)
Accordingly, I adopt Huston’s more detailed and plausible version.
they decided on a 1-day suspension for each of the disputants
and so advised them in another meeting held on August 22.
Sometime around mid-September, Huston filled out an in-
house “Associate Complaint Form,” protesting that Stelling and
Olson had denied his “rights to have representation on my be-
half during interrogation and dis[ci]pline actions.” Olson wrote
a response on the form on September 26. He stated: “Wabash
National Corporation Policies do not require representation
during disciplinary or suspension proceedings.”
On or about October 2, Huston filed an in-house appeal to
FTSI’s Human Resources Director, Pat Quick. On October 13,
Quick responded in writing, stating, initially, that “there has
been a misunderstanding surrounding Fruehauf Trailer Ser-
vice’s policy. Simply put, the initial responses [by Olson, on
September 26] to our associate’s [Huston’s] complaint are in-
accurate when applied to this particular situation.” Quick went
on to state, in pertinent part, as follows (my emphasis):

While Management is correct that we do not have a policy
that requires representation, we do not have a policy to deny
or refuse representation when properly requested in appropri-
ate situations.

This case indicates that some confusion has arisen over the
rights of employees, represented by IAM District Lodge 751, to
request union representation in the event of an investigation of
potential disciplinary action. FTS will follow the law with
regard to these situations:

1. The right (to request union representation) arises
only in situations where the employee requests representa-
tion.
2. The employee’s right to request representation as a
condition to participate in the interview is limited to situa-
tions where the employee reasonably believes the investi-
gation will result in disciplinary action.
Because of the confusion and in a good faith attempt to
treat our Associates fairly, the disciplinary suspensions is-
sued Gary Bogle and Gary Huston are rescinded and FTS
will pay said employees for their loss of wages.
II. ANALYSES AND CONCLUSIONS OF LAW
A. The 8(a)(1) Counts
As noted, the complaint alleges that agents of FTSI (notably,
Service Manager Stelling) unlawfully denied Huston’s repeated
requests for union representation, both before and during the
August 21 meeting where General Manager Olson interviewed
both Huston and Bogle about what had happened between
them. Everyone agrees that this interview was “investigative”
in character, and, therefore, that Huston had a “Weingarten
right” to request and be granted union representation as a con-
dition of going forward with such an interview. (Indeed,
Quick’s October 13 memorandum, supra, acknowledges the
point of law.) The only disagreement is about whether Huston
asked for union representation before, or during the August 21
interview in Olson’s office. I have credited Huston’s account to
find that he made such timely requests both before and during
the interview, and that Stelling (and Olson, by default) denied
this request. Accordingly, it follows as a matter of law that the
FRUEHAUF TRAILER SERVICES 403
refusals of Stelling and Olson to permit Huston to have union
representation during the August 21 interview violated Section
8(a)(1) of the Act.
I have also credited Huston to find that Stelling explained the
refusal to permit union representation on the basis that “this is a
nonunion shop.” Of course, this was legally inaccurate, for the
Union was then not only entitled, under successorship princi-
ples, to recognition as the representative of the Spokane service
and maintenance employees, but, in fact, Wabash/FTSI had
already conferred such recognition on the Union. Nevertheless,
Stelling’s explanation clearly implied that the company would
not permit the Union to play a representative role on Huston’s
behalf because FTSI did not recognize the Union’s representa-
tive status. Thus, the explanation compounded the statutory
Weingarten violation by implying that employees were not
entitled to the Union’s representative services for any purpose.
Accordingly, I conclude as a matter of law that Stelling’s
statement, “this is a nonunion shop,” was an independently
unlawful act of “coercion” within the contemplation of Section
8(a)(1).15
B. The 8(a)(5) Counts
1. Refusal to meet and bargain at reasonable times
FTSI, having appropriately recognized the Union as the rep-
resentative of the employees in the Spokane unit, operated un-
der a general statutory obligation to bargain collectively in
good faith with the Union as the exclusive representative of
those employees. Under Section 8(d) of the Act, the discharge
of this obligation required FTSI, inter alia, to “meet at reason-
able times and confer” with the Union for such purposes as “the
negotiation of an agreement” to cover the Spokane employees.
The Board has long construed these obligations as imposing on
the employer an “affirmative duty to make expeditious and
prompt arrangements, within reason, for meeting and confer-
ring.”16 Indeed, using language that is especially pertinent to
ultimate issues in this case, the Board has held that an employer
is required to show the same “great degree of diligence and
promptness in the discharge of [its] bargaining obligations as
[it] display[s] in other business affairs of importance,” for
“[a]greement is stifled at its source if opportunity is not ac-
corded for discussion, or so delayed as to invite or prolong
unrest or suspicion.”17
The General Counsel contends centrally in this regard that it
was unreasonable for FTSI to have met with the Union only
once during the 7-month period bracketed by its initial recogni-
tion and ultimate withdrawal of recognition. The General
Counsel further argues that the unreasonableness of FTSI’s
failure to meet more than once during this extended period is
made more palpable by additional factors. These include the

15 By way of analogy, see Kessel Food Markets, 287 NLRB 426,
428–429 (1987), holding that statements by a successor employer dur-
ing the hiring process that the new facility will be “nonunion” are “co-
ercive and violate Section 8(a)(1).” See also, e.g., D&K Frozen Foods,
293 NLRB 859, 873–874 (1989).
16 J.H. Rutter-Rex Mfg. Co., 86 NLRB 470, 506 (1949), cited in
Storer Communications, 294 NLRB 1056, 1095 (1989).
17 Little Rock Downtowner, Inc. 145 NLRB 1286, 1305, and authori-
ties cited (1964), enfd. 341 F.2d 1020 (8th Cir. 1965).
“perfunctory” character of the single meeting on August 21, in
which company agents merely “reviewed” the Union’s initial
proposal, and offered no counterproposals nor a proposed
schedule for future meetings, and then departed Spokane to
continue their West Coast swing. In addition, the General
Counsel cites the failure of Homerin or Lane thereafter to “get
back” to the Union even about future meeting dates, until
prompted more than a month later by McClure’s September 25
letter to propose that a second meeting be held on November
17, nearly 4 months after the first meeting had been held. Fi-
nally, the General Counsel emphasizes that during the months
between the August 21 meeting and the eventual withdrawal of
recognition, FTSI never presented the Union even with a coun-
terproposal to the terms presented by the Union during the Au-
gust 21 meeting.
The General Counsel’s arguments are facially meritorious.
One perfunctory and wholly inconclusive meeting in 7 months
was clearly not enough to discharge FTSI’s statutory obligation
to meet and confer with the Union at “reasonable” times for the
purposes of negotiating a labor agreement for the Spokane unit.
Accordingly, unless FTSI could show either that the Union
shared substantially in the blame for the failure to meet and
bargain more frequently, or that there existed truly extraordi-
nary independent circumstances that would have made it “un-
reasonable” for FTSI to have tried to move the Spokane bar-
gaining process along more quickly than it did, it follows as a
matter of law that FTSI violated its statutory bargaining obliga-
tions. FTSI makes a variety of arguments apparently aimed at
making one or both such defensive showings; however, for
reasons discussed below, I remain unpersuaded.
FTSI argues centrally that Wabash’s “overnight” acquisition
of the former FTC facilities and the 1000 employees working in
them, together with its acquisition of bargaining obligations to
upwards of 25 different unions for a like number of individual
bargaining units, created a virtually insuperable obstacle to
Wabash’s and/or FTSI’s ability to discharge all of its newly-
inherited bargaining obligations simultaneously. These argu-
ments rely on the fact that Wabash had deputized Lane and
Labor Counsel Homerin as the individuals jointly responsible
for all such new-bargaining matters, and on the (unexception-
able) supposition that these two individuals could hardly be
expected to be in more than one place at a time, i.e., to negoti-
ate simultaneously with 25 different unions for 25 different
units around the country. Thus, according to FTSI’s argument,
Lane and Homerin were necessarily required to establish bar-
gaining priorities, and, not unreasonably, they decided that first
priority should be given to bargaining with the UAW local for
the employees at the largest of the newly-acquired manufactur-
ing plants.
This argument is only as good as its unstated premise—that
it was “reasonable” in the first instance for Wabash to have
made Lane and Homerin personally and exclusively responsible
for the handling of all the bargaining obligations to which Wa-
bash and/or FTSI became bound as a consequence of the acqui-
sitions. And it is the premise itself that is unpersuasive. When
Wabash/FTSI invested a team of only two individuals with the
personal responsibility for conducting negotiations for the 25 or
so newly-acquired, union-represented bargaining units spread
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
around the country, it virtually guaranteed that some of the
unions would have to wait in line indefinitely, until Lane and
Homerin might find time to begin bargaining for the units they
represented. Indeed, Wabash recognized this from the outset: In
the same letter of April 29 in which Homerin, speaking for
Wabash, conferred recognition on the Union, Homerin also
declared that, “[b]ecause of the number of facilities recently
purchased by
Wabash National, there will be some delay in scheduling a
bargaining meeting for the facility.” Moreover, Homerin’s ref-
erence to “some delay” was clearly an understatement, for it
took the better part of the next 4 months—and two insistent
letters from the Union’s McClure—before Lane and Homerin
broke free to begin bargaining for the Spokane unit, and it took
the better part of another 4 months—and another written de-
mand from McClure—before they would again become avail-
able for a second meeting.
The General Counsel correctly notes that FTSI’s arguments
in this regard boil down to a “busy negotiator” defense, and that
the Board has consistently given short shrift to this defense
when raised in analogous contexts. See, e.g., Caribe Staple Co.,
313 NLRB 877, 893 (1994): “Considerations of personal con-
venience, including geographical or professional conflicts, do
not take precedence over the statutory demand that the bargain-
ing process take place with expedition and regularity. An em-
ployer acts at its peril when it selects an agent incapacitated by
these or any other conflicts.”18 The same rationale applies here.
While Wabash/ FTSI was free to designate agents of its own
choosing to aid it in discharging its statutory bargaining obliga-
tions, it cannot now rely on the (inevitable and foreseeable)
“scheduling conflicts” of its chosen deputies to excuse its un-
availability to meet with the Union more than once during the
7-month period preceding its withdrawal of recognition.
FTSI is just as unpersuasive when it suggests that the Union
was quite content with—indeed, that it “agreed to”—the “meet-
ing schedule,” such as it was. Thus, FTSI states on brief (pp.
16–17):

Significantly, the Union agreed to the Spokane meeting
schedule, never protested the frequency of meetings, never
filed any unfair labor practice charges prior to the employees’
submission of a petition seeking to decertify [sic] the Union,
and failed to file any charge until six (6) months after the
withdrawal of recognition. Under such circumstances, and
clearly in light of the Union’s consent and participation in the
timing of the bargaining process in Spokane, the Company
clearly did not violate the Act.

This string of claims, apparently intended to suggest in the end
that the Union waived its statutory right to meet and confer at
reasonable times, obviously depend in large part on a distortion
of the undisputed facts: Thus, while the record shows that the

18 The General Counsel has appropriately cited in this regard the fol-
lowing additional cases that have consistently hewed to the same ra-
tionale: J. H. Rutter-Rex, supra; Little Rock Downtowner, supra; Hud-
son Chemical Co., 258 NLRB 152, 157 (1981) Bryant & Stratton Busi-
ness Institute, 321 NLRB 1007 (1996); Calex Corp., 322 NLRB 977
(1997); and People Care, Inc., 327 NLRB 814 (1999). See, e.g., Nurs-
ing Center at Vineland, 318 NLRB 901, 905 (1995).
Union “agreed” to both the August 21 and November 18 dates
proposed by the company’s negotiators, it is a distortion of the
record to suggest that the Union “agreed” to the “meeting
schedule.” McClure’s May 29 letter to Lane plainly shows that
the Union was prepared as of that date to begin negotiations for
the Spokane unit, and sought from Lane “a list of your earliest
available times to begin negotiations.” Indeed, when another
month passed without a reply, McClure again demonstrated a
wish promptly to begin negotiations by writing again to Lane
on June 27, reiterating the same request. Clearly, therefore, the
Union cannot be said to have “agreed” to a “schedule” under
which the first meeting would not take place until August 21;
rather, presented by Lane with no earlier meeting date, the Un-
ion simply “accepted” the best the company was prepared to
offer, a meeting on August 21. (An identical analysis holds for
the company’s claim that the Union thereafter “agreed” to a
“schedule” according to which the next meeting would not take
place for another 4 months, i.e., until November 18.) Moreover,
FTSI’s assertion that the Union “never protested the frequency
of meetings” is essentially false: Such a protest was explicit in
McClure’s admonition to Homerin at the conclusion of the
perfunctory meeting on August 21 that it should not take “an-
other five or six months” to hold the next meeting. And it was
just as explicit in McClure’s September 25 letter to Homerin,
complaining, in language worth repeating in full, as follows:

It has been in excess of a month since the Union gave you a
proposal for a new Labor Agreement at the Spokane facility.
To date we have had no response. While I am aware you have
many areas to bargain, it does not relieve the Employer of
their obligation to bargain the Spokane location. Therefore, I
am requesting to schedule a meeting for collective bargaining
at the very earliest mutually agreeable time.

Finally, FTSI’s emphasis on the Union’s failure to file an unfair
labor practice charge against the company during the period
preceding the withdrawal of recognition is wholly unpersuasive
insofar as it is urged as a factor indicating that the Union had
“agreed” to the “meeting schedule” that it was ultimately com-
pelled to settle for: A union may have practical reasons—other
than “agreement” with an employer’s conduct—for not filing
an unfair labor practice charge at the first moment it suspects
bad faith stalling on the employer’s part. For example, a charge
alleging a course of failing to meet at reasonable times may be
vulnerable to attack as premature if made before bargaining
events have fully unfolded. Moreover, even if the union might
otherwise be disposed to file such a charge, it may deem it in-
advisable to do so when the employer is still holding out the
prospect of an eventual agreement. Thus, the Union’s “failure”
in this instance to file a charge until after FTSI had forestalled
the possibility of agreement by withdrawing recognition can
hardly be taken as betokening the Union’s prior “agreement”
with the conduct challenged by its charge.
In what I discern to be the only other distinct defense ad-
vanced in FTSI’s brief, the company argues (p. 17) that “[t]he
General Counsel’s claim that the company unlawfully delayed
the first bargaining meeting in Spokane is untimely, and is
barred by Section 10(b) of the Act.” This argument notes that
the Union’s original charge was not filed until February 11,
FRUEHAUF TRAILER SERVICES 405
1998, and that the events underlying the scheduling of the Au-
gust 21 meeting occurred more than 6 months prior to the
charge. (In fact, a charge filed on February 11, 1998 would be
timely under Sec. 10(b) as to any conduct occurring on or after
August 11, 1997.)
As I see it, however, this argument jousts with a straw man:
The complaint nowhere charges FTSI simply with having
unlawfully delayed the scheduling of the first meeting, nor is it
obvious that such a delay would alone have triggered a com-
plaint charging FTSI with a course of bad-faith bargaining.
Rather, the complaint contains (in par. 7 and its subpars.) an
essentially accurate historical recapitulation of the Union’s
attempts over the course of nearly 7 months to bring FTSI to
the bargaining table, and of FTSI’s responses (or failures to
respond) to the Union’s successive initiatives in this regard. To
be sure, this recapitulation refers to the events preceding and
including the August 21 meeting, just as it refers to similar
developments occurring after that meeting. However, the ulti-
mate “claim” made by the General Counsel is to be found in
paragraph 9 of the complaint, which states in pertinent part as
follows (my emphasis): “By its overall acts and conduct, in-
cluding its bargaining conduct alleged above in paragraphs
7(b), (c), (e), and (f) . . . Respondent has engaged in bad faith
bargaining.” In short, FTSI is charged with an overall course of
bad-faith conduct, evidenced not simply by its behavior outside
the 10(b) period (unreasonable delays in scheduling the first
meeting), but by its continuation of similar conduct within the
10(b) period (perfunctory meeting on August 21, plus further
unreasonable delays in advancing negotiations after the conclu-
sion of the initial meeting).
I assume, arguendo, that Section 10(b) bars a finding that
FTSI committed violations prior to August 11, the limitations
cut-off date, and likewise precludes any Board remedy for any
discrete violations it may have committed before that date.
However, it is well settled that where, as here, the complaint
attacks an overall course of bad-faith conduct alleged to have
persisted within the 10(b) period, and the proof includes sub-
stantial examples occurring within that period, the complaint is
not barred by Section 10(b), and the evidence of conduct out-
side the 10(b) period may properly be received as background,
and considered as part of the analysis of the legality of the con-
duct within the 10(b) period.19 Here, I have taken into account
that the meeting of August 21—the first notable event within
the 10(b) period—occurred only after a 4-month delay that was
itself occasioned by the company’s negotiators’ prior unavail-
ability. Moreover, I have taken into account the perfunctory
character of the August 21 meeting itself, where FTSI represen-
tatives merely reviewed the Union’s proposal, made no coun-
terproposal of their own, and made only what proved to be an
empty promise to the Union to “get back” about the scheduling
of future meetings. I have also taken into account that, despite

19 Bryan Mfg. Co. v. NLRB, 362 U.S. 411, 417 (1960). Moreover,
unlike the conduct which the Bryan Court found was beyond the reach
of prosecution under Sec. 10(b), it cannot be said here either that the
complaint relies on evidence outside the limitations period “to cloak
with illegality that which was otherwise lawful” (ibid) or that the al-
leged violation is “inescapably grounded in events predating the limita-
tions period.” Id. at 422.
the Union’s further initiatives and protests about delays and
lack of progress to date, FTSI’s representatives eventually pro-
posed only that the next meeting be held some 4 months after
the first meeting, itself an unreasonable delay in all the circum-
stances. Accordingly, my ultimate conclusion that FTSI unlaw-
fully failed to discharge its statutory obligations is substantially
based on its post-August 11 behavior, viewed against the back-
ground of its similar failures prior to that date.
2. Withdrawal of recognition
My previous judgments that FTSI violated Section 8(a)(1)
and (5) in the months preceding its receipt of the employee
petition on which it relied for its November 7 withdrawal of
recognition virtually dictates the conclusion that FTSI acted
unlawfully by withdrawing recognition. Under well-settled
principles, the Union at all times enjoyed the legal presumption
that it was supported by a majority of the unit employees; and
while FTSI may have been free in the abstract to rely on such
an employee petition as effectively rebutting that presumption
as of November 7, an indispensable precondition to its exercise
of that right is that the petition must have arisen in an atmos-
phere free of any unfair labor practices which might tend to
cause “disaffection” among the unit employees with the incum-
bent union.12 Here, without deeming it necessary to further
explicate the point, I am satisfied that each of the unfair labor
practices I have found had its own distinct tendency to under-
mine the Union’s proper representative role, and, in turn, to
cause unit employees in Spokane to become disaffected with it
as a bargaining agent. Necessarily, therefore, these unfair labor
practices, taken in combination, would have an even stronger
tendency to cause such disaffection. In short, as the General
Counsel maintains, FTSI’s prior unfair labor practices fatally
tainted the showing it relied on as a basis for the withdrawal of
recognition.13
Accordingly, I conclude as a matter of law that FTSI inde-
pendently violated Section 8(a)(5) when FTSI withdrew recog-
nition from the Union based simply on the manifestations of
employee disaffection presumably evidenced by the employee
petition.
12 Master Slack Corp., 271 NLRB 78, 84 (1984). See, e.g., Wilshire
Foam Products, 282 NLRB 1137, 1138 (1987).
13 In opening statement at the trial regarding the withdrawal of rec-
ognition, counsel for the General Counsel articulated two, independent
theories of violation: (1) FTSI’s prior unfair labor practices (failure to
meet with the Union at reasonable times, plus independent 8(a)(1)
violations) “tainted” the employee petition and thus barred FTSI from
relying on the petition as a basis for the withdrawal of recognition; (2)
FTSI’s recognition of the Union gave rise to an “irrebuttable presump-
tion” of the Union’s majority status for a “reasonable time,” to permit
bargaining to succeed, and the lapse of time prior to the withdrawal of
recognition did not amount to a reasonable time. However, by letter to
me and all parties dated March 18, 1999 (the day after the trial closed) ,
counsel for the General Counsel effectively disclaimed the latter theory,
candidly acknowledging that, under Harley-Davidson, 273 NLRB
1531, 1532 (1985), that theory is “not applicable in cases of successor-
ship.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
III. REMEDY
Because FTSI, the nominal Respondent, committed unfair
labor practices, it must be ordered to cease and desist from such
violations and to take affirmative action to remedy its unlawful
acts and to restore, as nearly as possible, the status quo ante. In
addition to a conventional notice-posting requirement, my af-
firmative remedial order requires FTSI to restore recognition to
the Union (and to so notify it in writing) as the exclusive
collective-bargaining representative of employees in the
Spokane unit, and, upon the Union’s request, to meet at
reasonable times and intervals with the Union, and to bargain
collectively in good faith with the Union for the purpose of
negotiating a collective-bargaining agreement to cover the
employees in the Spokane unit, or for any other lawful purpose
having to do with a mandatory bargaining subject.19

On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Fruehauf Trailer Services, Inc., a wholly
owned subsidiary of Wabash National Corporation, Spokane,
Washington, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from or otherwise refusing to
recognize International Association of Machinists and Aero-
space Workers, District Lodge 751 (the Union), affiliated with
International Association of Machinists and Aerospace Work-
ers, AFL–CIO, as the exclusive representative for collective-
bargaining purposes of employees in the following-described
appropriate bargaining unit (the Spokane unit):

All service and maintenance employees at Respondent’s Spo-
kane, Washington Facility: EXCLUDING all clerical em-
ployees, parts room employees, guards, and supervisors as de-
fined in the Act.

(b) Failing or refusing to meet and negotiate with the Union
as such representative at reasonable times and intervals for
purposes of concluding a collective-bargaining agreement for
the Spokane unit or for any other lawful purpose having to do
with a mandatory subject of bargaining.
(c) Refusing an employee’s request for union representation
during any investigatory interview which the employee rea-
sonably believes may result in discipline.
19 In his list on brief of proposed remedial provisions, counsel for the
General Counsel has not suggested any “make-whole” remedy for the
wages lost by Huston as a consequence of his August 22 disciplinary
suspension, nor any associated “purgation-of-files” remedy. I assume
this is because FTSI has already fulfilled its promise to rescind the
disciplinary action and to pay Huston the wages he lost. Accordingly,
my remedial order contains no such provisions.
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(d) Telling employees that the Spokane facility is a nonunion
shop.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, restore rec-
ognition to the Union as the exclusive representative of em-
ployees in the Spokane unit for all collective-bargaining pur-
poses, and so notify the Union in writing.
(b) Within 14 days from the date of this Order, appoint rep-
resentatives who will be promptly and regularly available at
reasonable times and intervals for purposes of collective bar-
gaining with the Union for the Spokane unit.
(c) Upon the Union’s request, meet and bargain in good faith
with the Union through those representatives, and do so
promptly and regularly, at reasonable times and intervals, for
purposes of concluding a collective-bargaining agreement for
the Spokane unit, or for any other lawful purpose having to do
with a mandatory subject of bargaining.
(d) Within 14 days after service by the Region, post at its
Spokane, Washington sales and service facility copies of the
attached notice marked “Appendix.”21 Copies of the notice, on
forms provided by the Regional Director for Region 19, 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 altered, defaced, or covered by
any other material. In the event that, during the tendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since August 11, 1997.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

21 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.”