Garden Ridge Management, Inc.

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 131 (N.L.R.B. 2006)

GARDEN RIDGE MANAGEMENT
347 NLRB No. 13
131
Garden Ridge Management, Inc. and General Driv-
ers, Warehousemen and Helpers, Local Union
745, affiliated with the International Brother-
hood of Teamsters.1 Cases 16–CA–22275 and
16–CA–22756
May 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 19, 2003, Administrative Law Judge Kelt-
ner W. Locke issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief, and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
only to the extent consistent with this Decision and Or-
der.
The facts, which are set forth more fully in the judge’s
decision, are as follows. The Union was certified as the
bargaining representative of the Respondent’s employees
on April 22, 2002.4 The parties began negotiations for a
collective-bargaining agreement on May 15. They nego-
tiated on 20 occasions over 11 months, reaching tentative
agreement on 28 articles.5 During these negotiations, the

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 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.
3 The Respondent contends that the judge improperly denied its mo-
tion to strike the rebuttal testimony of David Shirk. Shirk testified on
rebuttal that two managers made statements that are relevant to our
inquiry of whether the Respondent bargained with an intent to avoid
reaching agreement. The Respondent argues that Shirk’s testimony
should have been offered in the General Counsel’s case-in-chief and
was therefore improper rebuttal evidence. We find no merit in this
argument. The Respondent’s contention that it did not raise the issue of
intent in its case-in-chief is not supported by the record. Attorney
Christopher Antone, chief negotiator for the Respondent, testified on
direct examination that the Respondent “[w]anted to get a contract.
That was our direction.” Thus, Shirk’s testimony provided appropriate
rebuttal evidence as to the Respondent’s intent in bargaining. In any
event, the admissibility of evidence on rebuttal is within the discretion
of the judge, even if the evidence is not technically proper rebuttal
evidence. See Water’s Edge, 293 NLRB 465 fn. 2 (1989). We find no
abuse of discretion here.
4 All dates hereafter are in 2002 unless otherwise indicated.
5 The parties reached tentative agreement on articles addressing mili-
tary leave, contract duration, visitation rights, articles of agreement,
Union asked on approximately eight occasions that the
Respondent meet with it more frequently. The Respon-
dent refused each of these requests without explaining to
the Union why it did not wish to meet more often.6 The
final negotiation session occurred on April 7, 2003. In
late April 2003, the Respondent received a petition from
its employees indicating that a majority of unit employ-
ees no longer wanted the Union to represent them.
Based on the employees’ petition, the Respondent with-
drew its recognition of the Union on April 25, 2003.
The judge found that the Respondent violated Section
8(a)(5) and (1) by refusing to meet with the Union at
reasonable times, by engaging in surface bargaining, and
by withdrawing recognition from the Union. The Re-
spondent has excepted to the judge’s findings, arguing
that it negotiated with the Union in good faith and that it
lawfully withdrew recognition from the Union. As dis-
cussed below, we affirm only the judge’s finding that the
Respondent did not meet at reasonable times as required
by Section 8(d), and we shall dismiss the remaining alle-
gations of 8(a)(5) and (1) misconduct.
I.
We agree with the judge, for reasons stated in his deci-
sion, that the Respondent violated Section 8(a)(5) by
refusing to meet with the Union at reasonable times. The
parties met approximately every 3 weeks from the time
negotiations began until the last bargaining session in
April 2003, for a total of about 20 bargaining sessions.
The Union repeatedly requested additional bargaining
sessions based on its dissatisfaction with the pace of ne-
gotiations, but the Respondent failed to accommodate
any of those requests. The Union first requested that the
parties meet on a more frequent basis at the fourth bar-
gaining session, held on June 27, when union negotiators
stated their concern that the parties were “not getting
anywhere” and asked if the Respondent would be willing
to meet several days in a row. The Respondent’s Chief
Negotiator Christopher Antone told the Union that addi-
tional meetings would probably not be possible, but that
he would check on it.
At the next bargaining session on July 18, union nego-
tiators again asserted that things were moving along too
slowly and suggested that the Respondent was stalling

recognition, new employees, bulletin boards, funeral/bereavement
leave, arbitration, management rights, bonds, jury duty, legal-
ity/stability of agreement, grievance procedure, seniority, extra contract
agreement, no oral or implied agreement, uniforms, examinations, wage
classifications (but no wage rate), wash rooms and lunch rooms, atten-
dance, automatic payroll deposit, election day leave, employee dis-
count, intent and purpose, sick personnel, and substance abuse control.
6 The Respondent’s refusals occurred between July and December.
Its final refusal occurred on December 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD132
the negotiations. The Respondent denied the accusation.
During the rest of 2002, the Union continued to press for
more frequent bargaining sessions and to express its con-
cern that the parties were not meeting frequently enough
to make any progress toward an agreement. For exam-
ple, in discussing future meeting dates during a meeting
on August 15, union negotiator Douglas Ellison told the
Respondent that the parties were not meeting enough.
On October 29, union negotiator Robert Bridges asked
the Respondent if they could “string meeting dates to-
gether” because they “were not getting anywhere in ne-
gotiations.” In all, the Union made such statements to
the Respondent during 8 of the 12 bargaining sessions
conducted between July and December. The Respondent
consistently refused the Union’s requests without offer-
ing any explanation as to why it could not meet on a
more frequent basis. The only comment made to the
Union relative to this refusal came from Chief Negotiator
Antone at the October 29 bargaining session, where he
stated that he enjoyed taking time off between sessions to
contemplate what had happened during negotiations. At
the hearing, the Respondent proffered no reason for its
refusal to meet more often with the Union.
Section 8(d) of the Act requires that an “employer and
the representative of the employees . . . meet at reason-
able times and confer in good faith with respect to
wages, hours, and other terms and conditions of em-
ployment. . . .” The Board considers the totality of the
circumstances when determining whether a party has
satisfied its duty to meet at reasonable times. Calex
Corp., 322 NLRB 977, 978 (1997), enfd. 144 F.3d 904
(6th Cir. 1998) (examining respondent’s “overall con-
duct”). Our inquiry is not limited to an examination of
the number of bargaining sessions held. Here, on bal-
ance, we find that the Respondent violated its duty to
meet at reasonable times.
We first acknowledge that the Respondent met with
the Union on 20 occasions over 11 months and reached
agreement on a host of issues. We also acknowledge
that, as discussed below, the General Counsel failed to
satisfy his burden of proving that the Respondent bar-
gained in bad faith. However, despite the parties’ pro-
gress in negotiations, significant issues remained out-
standing, and the Union made repeated requests in 2002
for more frequent bargaining sessions. The Respondent
summarily refused each of these requests without ex-
plaining its unwillingness to the Union or the Board.
Calex Corp., 322 NLRB 977, is instructive. In that
case, the Board held that an employer violated its duty to
meet at reasonable times even though it negotiated with
the union on 19 occasions over 15 months. When nego-
tiations started, the employer declared that it would meet
only once per month. The union repeatedly requested
more frequent bargaining sessions, but the employer re-
fused. The Board relied heavily on the employer’s re-
peated refusals in finding that the employer violated the
Act. Consistent with Calex Corp., we rely heavily on the
Respondent’s repeated, unexplained refusals in finding
that the Respondent violated its duty under Section 8(d)
to meet at reasonable times.7
II.
Contrary to the judge and our dissenting colleague, we
do not find that the Respondent violated Section 8(a)(5)
and (1) by engaging in surface bargaining. Recognizing
that this is a close case, we nonetheless find that the
General Counsel failed to prove by a preponderance of
the evidence that the Respondent did not intend to reach
agreement with the Union, an essential aspect of a sur-
face-bargaining allegation.
As stated above, Section 8(d) defines the duty to bar-
gain collectively as “the performance of the mutual obli-
gation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good
faith with respect to wages, hours, and other terms and
conditions of employment . . . but such obligation does
not compel either party to agree to a proposal or require
the making of a concession.” Good-faith bargaining
“presupposes a desire to reach ultimate agreement, to
enter into a collective bargaining contract.” NLRB v.
Insurance Agents’ Union, 361 U.S. 477, 485 (1960).
“The Board’s task in cases alleging bad-faith bargaining
is the often difficult one of determining a party’s intent
from the aggregate of its conduct.” Reichhold Chemi-
cals, 288 NLRB 69, 69 (1988), enf. denied in part on
other grounds 906 F.2d 719 (D.C. Cir. 1990); Flying
Foods, 345 NLRB 101, 108 (2005). “From the context
of an employer’s total conduct, it must be decided
whether the employer is engaging in hard but lawful bar-

7 Under different circumstances, such a frequency of negotiations
might satisfy a party’s duty to meet at reasonable times. Cf. Honaker,
147 NLRB 1184 (1964) (finding that employer acted lawfully in meet-
ing on 11 occasions over 5 months); Boaz Carpet, 280 NLRB 40
(1986) (finding that employer satisfied its duties under Sec. 8(d) where
it met on 13 occasions over 12 months). Honaker and Boaz Carpet are
distinguishable from this case, however. Neither case presented a
situation where, as here, the employer refused the union’s repeated
requests for additional meetings with no apparent basis for the refusal.
Radiator Specialty Co. v. NLRB, 336 F.2d 495 (4th Cir. 1964), also
relied on by the Respondent, is likewise distinguishable. In that case
the court overruled the Board’s finding of a violation due to the union’s
conduct during negotiations. Id. at 500. Noting that the union had
engaged in personal attacks on the employer’s negotiator, and also had
attempted to hinder production and break up meetings, the court found
that the employer’s continuance of bargaining in spite of the union’s
conduct demonstrated the employer’s good faith. In contrast, there is
no evidence or claim that the Union here has engaged in misconduct.
GARDEN RIDGE MANAGEMENT 133
gaining to achieve a contract that it considers desirable or
is unlawfully endeavoring to frustrate the possibility of
reaching agreement.” Public Service Co. of Oklahoma
(PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th
Cir. 2003).
The General Counsel argues that he proved that the
Respondent harbored an intent to avoid reaching agree-
ment by introducing evidence of: (1) the content and
timing of the Respondent’s bargaining proposals; (2) the
frequency of the bargaining sessions; and (3) certain pre-
certification statements made by two of the Respondent’s
officials. We find that the General Counsel failed to sat-
isfy his burden.
The sole proposal relied on by the judge to show
unlawful intent was a proposal seeking the Union’s
agreement to refrain from organizing certain non-
bargaining-unit employees. But, as acknowledged by the
dissent, the Board has found such agreements are per-
missible. See Lexington Health Care Group, 328 NLRB
894 (1999). Thus, there is nothing unlawful about the
Respondent’s proposal on this issue and hence nothing
which evidences an intent not to reach an agreement.
The General Counsel also argues that the Respondent’s
management-rights proposals demonstrate an intent to
avoid reaching agreement. We disagree. The Respon-
dent proposed a broad management-rights clause. The
Union voiced its opposition to several features of the
Respondent’s proposal. In response, the Respondent
modified its proposal to eliminate the objectionable fea-
tures, while simultaneously informing the Union that it
might propose the substance of those features in separate
articles. The parties agreed on the language of the man-
agement-rights clause that day. Consistent with its no-
tice, the Respondent did propose the separate articles at
the next bargaining session. The language that had been
objected to was changed. The Respondent’s effort to
secure agreement, where possible, while voicing its in-
tent not to retreat from the substance of its bargaining
position, is not inconsistent with an intent to reach
agreement.
There is no basis in the record for our colleague’s as-
sertion that the withdrawal of the broader proposal and
resubmission of more specific ones was a tactic calcu-
lated to stretch out bargaining by revisiting matters that
had been resolved. To the contrary, the Union rejected
the broad management-rights proposal when it was in-
troduced. In response, the Respondent isolated provi-
sions that the Union found objectionable and removed
them, reserving the right to make additional proposals to
the clause as negotiations progressed. The judge found
that no inference of bad faith could be derived from the
substance of the more specific proposals that the Re-
spondent submitted at the next bargaining session.8
These new proposals cannot fairly be compared, as our
colleague suggests, to the tactics of “pretending to con-
cede on some matter particularly objectionable to the
Union, while retaining essentially the same provision in
another clause in the Respondent’s overall contract pro-
posal (or transferring the provision to another clause).”
Prentice Hall, Inc., 290 NLRB 646, 646 (1988). With
fair notice before its prompt submission of the more nar-
rowly tailored proposals, no inference of slight-of-hand
gamesmanship is warranted. Nor has it been shown that
the change to the more narrowly tailored proposals cre-
ated “additional challenges to reaching agreement.” Our
colleague can only assert that they “may well have” done
so.
We decline to infer an intent to avoid reaching agree-
ment from the Respondent’s failure to meet more fre-
quently. As stated above, the Respondent negotiated
with the Union on 20 occasions over 11 months and
reached agreement on significant issues. Though we
found, above, that the Respondent’s refusals to meet
more frequently violated its duty to meet at reasonable
times, we did so in large part because they were unex-
plained. We do not think that the frequency of bargain-
ing sessions warrants an inference of unlawful motive in
this case.
Section 8(d) requires a party to “meet at reasonable
times” and to “confer in good faith.” The former obliga-
tion refers to the frequency of meetings under the cir-
cumstances; the latter refers to the willingness to reach
an accord on bargainable matters that are in dispute.
Thus, the fact that a party does not meet with sufficient
frequency does not necessarily mean that it does not wish
to agree to a contract. In the instant case, the failure to
meet is unexplained by the Respondent. Indeed, that is
the principal basis on which the violation is premised.
But, that is quite different from a finding that the failure
to meet more frequently was for the unlawful purpose of
avoiding an agreement.
The judge also relied on statements made by two of the
Respondent’s managers prior to the representation elec-
tion, as evidence of bad-faith bargaining. Before the
Union was certified, a manager asked Human Resources
Vice President Kevin Rutherford what the environment
would look like if the Union won the election. Ruther-
ford replied that “we would basically tie the union up at
the bargaining table and we would not come to an
agreement.” On a separate occasion before the election,
Senior Vice President Dan Ferguson told a manager that,

8 There are no exceptions to the judge’s finding that nothing in the
substance of the proposals shows bad faith.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD134
if the Union was voted in, “there’s all kinds of things that
we could do, and . . . the bargaining would go on and the
union is not going to get anything that we don’t want to
give them.” We interpret Ferguson’s statement, made to
a manager, as indicating nothing more than the fact that
the law does not require a party to make concessions or
to agree to particular proposals.9 Rutherford’s statement
is more troublesome. Ultimately, however, we conclude
that Rutherford’s statement does not demonstrate that the
Respondent simply went through the motions of bargain-
ing, rather than seeking, through bargaining, to reach an
agreement. We emphasize that these statements were
made during an election campaign, before the Union was
certified. We also note that the judge found that Fergu-
son, not Rutherford, “called the shots” during negotia-
tions.10 Further, agreement was reached during negotia-
tions on many substantive contract provisions. In these
circumstances, while we do not condone Rutherford’s
isolated comment, it is insufficient to satisfy the General
Counsel’s burden of proof when considered in light of all
of the evidence regarding the parties’ negotiations.
III.
In view of our finding that the Respondent did not en-
gage in surface bargaining, we also reverse the judge’s
finding that the Respondent’s withdrawal of recognition
from the Union violated the Act. As explained below,
we find no specific proof that the Respondent’s unlawful
refusal to meet at reasonable times caused the Union’s
loss of majority support.
An employer may not lawfully withdraw recognition
from a union where it has committed unfair labor prac-
tices that are likely to affect the union’s status, cause
employee disaffection, or improperly affect the bargain-
ing relationship itself. Lee Lumber & Building Material
Corp., 322 NLRB 175, 177 (1996). However, not every
unfair labor practice committed by an employer will taint
evidence of a union’s subsequent loss of majority sup-
port. In cases such as this one, where the unfair labor
practice does not involve a general refusal to recognize
and bargain with the union, “there must be specific proof
of a causal relationship between the unfair labor practice
and the ensuing events indicating a loss of support.” Id.
In determining whether a causal relationship exists be-
tween unremedied unfair labor practices and the loss of
union support, the Board considers the following factors:

9 The single remark made by the Respondent’s negotiator Antone
during the negotiations, that he enjoyed taking time off between meet-
ings to contemplate what had occurred during negotiations, is subject to
several different interpretations and is not necessarily reflective of an
intent to engage in surface bargaining.
10 The Respondent’s chief negotiator (Antone) made no unlawful
comments.
(1) the length of time between the unfair labor practices
and the withdrawal of recognition; (2) the nature of the
violations, including the possibility of a detrimental or
lasting effect on employees; (3) the tendency of the vio-
lation to cause employee disaffection; and (4) the effect
of the unlawful conduct on employees’ morale, organiza-
tional activities, and membership in the union. Master
Slack Corp., 271 NLRB 78, 84 (1984). Considering
these factors, we cannot conclude that the Respondent’s
refusal to schedule additional bargaining sessions had a
meaningful impact on employee disaffection.11
First, the 5-month period between the Respondent’s
last refusal to hold additional bargaining sessions and the
time the petition was presented to the Respondent weighs
against finding that the unfair labor practice caused em-
ployee sentiment against the Union. The evidence shows
that the Respondent last refused a Union request for ad-
ditional meetings in early December, but that the em-
ployee petition was not presented to the Respondent until
early April 2003. During the final 4 months of negotia-
tions, there is no evidence that the Respondent was
asked, or that it refused, to meet with the Union on a
more frequent basis.
Second, we do not find that the nature of the violation
(an unexplained refusal to meet at sufficiently reasonable
times unaccompanied by other bad faith bargaining in
negotiations), supports a finding of taint. As discussed
above, the Respondent bargained with the Union for al-
most a year before employees indicated that they no
longer wished to be represented by the Union. While we
have found the Respondent’s unexplained refusal during
the earlier portion of that year to schedule more sessions
was unreasonable, the fact remains that the parties met
on 20 occasions over 11 months and achieved agreement
on a significant number of subjects. Negotiations were
ongoing throughout the period. Third, there is no show-
ing that the scheduling disputes had a tendency to cause
employee disaffection toward the Union. Finally, there
is no evidence that the scheduling disputes had an effect
on employee morale, organizational activity or member-
ship in the Union. Under these circumstances, we cannot
conclude that the Respondent’s earlier refusal to schedule
additional bargaining sessions with the Union had a ten-
dency to affect employees’ morale or cause their disaf-
fection with the Union. Consequently, we reverse the
judge and find that the Respondent’s withdrawal of rec-
ognition from the Union was lawful.

11 It is uncontested that the Union had lost majority support at the
time the employees presented their petition to the Respondent.
GARDEN RIDGE MANAGEMENT 135
ORDER
The National Labor Relations Board orders that the
Respondent, Garden Ridge Management, Inc., Dallas,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, Teamsters Local 745, by refusing to meet
with it at reasonable times, as required by Section 8(d) of
the Act, at a time when the Respondent is obligated to
bargain in good faith with the Union.
(b) 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) At a time when a bargaining obligation exists, meet
with the Union at reasonable times to engage in collec-
tive bargaining as required by Section 8(d) of the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Dallas, Texas, copies of the attached no-
tice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since June 27, 2002.
(c) 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.
MEMBER LIEBMAN, dissenting in part.
Because this case involves a new bargaining relation-
ship and negotiations for a first contract, the Board
should “exercise special care in monitoring the . . . bar-
gaining process and closely scrutinize behavior which

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.”
‘reflects a cast of mind against reaching agreement.’”1
Good-faith bargaining, of course, “presupposes a desire
. . . to enter into a collective bargaining contract.” NLRB
v. Insurance Agents’ Union, 361 U.S. 477, 485 (1960).
Even before the union election had occurred, the Re-
spondent had expressed its intent to engage in surface
bargaining. The Respondent followed through on this
intent by deliberately frustrating the bargaining process:
introducing proposals that were likely to prolong nego-
tiations, while at the same time failing to devote suffi-
cient time to bargaining. Predictably, the Union, which
had failed to produce a contract, lost majority support—
and by then the Union’s certification year, which insu-
lated it from challenges to its representative status, had
run out. Failing to grasp the significance of the Respon-
dent’s conduct as a whole, the majority finds only that
the Respondent unlawfully refused to meet with the Un-
ion at reasonable times.2 While this violation of Section
8(a)(5) was enough, by itself, to taint the Respondent’s
withdrawal of recognition from the Union (contrary to
the majority), the record also demonstrates that the Re-
spondent engaged in surface bargaining.
I.
The Board has recently summarized the test to be ap-
plied in surface-bargaining cases like this one:
In determining whether a party has violated its
statutory obligation to bargain in good faith, the
Board examines the totality of the party’s conduct,
both at and away from the bargaining table. . . .
The Board considers several factors when evalu-
ating a party’s conduct for evidence of surface bar-
gaining. These include delaying tactics, the nature
of the bargaining demands, unilateral changes in
mandatory subjects of bargaining, efforts to bypass
the union, failure to designate an agent with suffi-
cient bargaining authority, withdrawal of already-
agreed-upon provisions, and arbitrary scheduling of
meetings. It has never been required that a respon-
dent must have engaged in each of those enumerated
activities before it can be concluded that bargaining
has not been conducted in good faith. . . . [R]ather, a
respondent will be found to have violated the Act
when its conduct in its entirety reflects an intention
on its part to avoid reaching an agreement.

1 APT Medical Transportation, 333 NLRB 760, 760 (2001) (Mem-
ber Liebman, concurring), quoting NLRB v. Katz, 369 U.S. 736, 747
(1962). In first-contract negotiations, “parties sit for the fist time across
the table from each other, often with residual bad feelings from acrimo-
nious organizing campaigns and without significant experience in col-
lective bargaining or any history to guide them.” Id. at 761.
2 I agree with the majority that the Respondent violated Sec. 8(a)(5)
and (1) by refusing to meet with the Union at reasonable times.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD136
Regency Service Carts, 345 NLRB No. 44, slip op. at 1–2
(2005) (citations and footnote omitted; emphasis added).
The record here, considered in its entirety, establishes that
the Respondent never intended to reach an overall agree-
ment with the Union.
A.
Statements made by two of the Respondent’s high-
ranking managers prior to the representation election
provide explicit evidence supporting this conclusion.
According to the evidence credited by the judge, during a
meeting that was held shortly before the election, the
Respondent’s managers discussed what would happen if
the Union won the upcoming election. Human Re-
sources Vice President Kevin Rutherford stated that the
Respondent “would basically tie the union up at the bar-
gaining table and would not come to an agreement.”3
Senior Vice President Dan Ferguson, asserted that
“there’s all kinds of things that we could do, and . . . the
bargaining would go on and the union is not going to get
anything that we don’t want to give them.”
Both of these individuals played a key role in negotia-
tions. The Respondent’s chief negotiator, Christopher
Antone, specifically testified that both Rutherford and
Ferguson consulted with him about bargaining strategy
during the negotiations. The majority down-plays Ruth-
erford’s role in negotiations, but Rutherford represented
the Respondent and assisted Antone at the bargaining
table. Ferguson set the goals for negotiations and gave
directions to Antone. Given the actual involvement of
these officials in the negotiation process, their expres-
sions of intent presumably reflect the Respondent’s ob-
jectives during negotiations.
B.
The evidence further shows that, beginning early in the
bargaining process, the Respondent advanced a number
of proposals that were likely to require protracted discus-
sions between the parties in order to reach an initial
agreement. Although these proposals are not themselves
evidence of an intent to frustrate bargaining, they are
relevant to the surface bargaining allegations, particularly
given the Respondent’s concurrent refusal to meet at
reasonable times.
For example, at the parties’ third bargaining session on
June 14, the Respondent proposed an “Intent of Agree-
ment” provision that would restrict the Union’s right to
seek to organize other employees of the Respondent dur-

3 Unlike the majority, I do not discount the significance of Ruther-
ford’s “troublesome” statement because it was uttered before the Union
was certified. Whatever its timing, the statement provides a clear, and
authoritative description of how the Respondent would approach nego-
tiations if the Union was certified.
ing the term of the contract.4 The Union initially ob-
jected to the proposal as a restriction on the rights of em-
ployees to join a union. The Respondent submitted a
revised version of the proposal that retained the objec-
tionable language a month later, and resubmitted the
same proposal in January 2003. The parties did not
reach agreement on this issue until March 7, 2003.
Also on June 14, the Respondent presented a “Man-
agement Rights” proposal to the Union, detailing a num-
ber of areas in which the Respondent would retain exclu-
sive authority, including contracting out work, relocating
its operations, and laying off employees in connection
with the relocation. The parties discussed the proposal
on September 4, and the Union presented the Respondent
with its objections. At the next bargaining session on
September 19, the Respondent agreed to drop all of the
provisions that the Union found to be objectionable, and
the parties signed off on the revised proposal. At that
time, Respondent’s negotiator Antone suggested that the
Union might see some of the deleted language again.
Antone did not provide further details, but later reintro-
duced some of the deleted provisions as separate propos-
als at the very next bargaining session on October 1.
Throughout this period, the Union continually ex-
pressed its frustration with the pace of negotiations and
lack of progress, and repeatedly requested that additional
bargaining sessions be scheduled. The Union made its
initial request for more sessions at the end of June,
shortly after the Respondent submitted the proposals
discussed, and continued to press for additional sessions
from July through December. For no apparent reason,
the Respondent persistently refused all of the Union’s
requests—an unfair labor practice, we all agree, but also
strong evidence of surface bargaining. See, e.g., Regency
Service Carts, 345 NLRB 671, 673 (2005) (citing cases
involving dilatory bargaining tactics, including unrea-
sonable refusal to accede to union’s requests for more
frequent meetings).
Acknowledging that this is a “close case,” the majority
nevertheless concludes that there is no connection be-
tween the Respondent’s failure to meet more frequently
and the surface-bargaining allegation. But surely the
only reasonable inference to draw from the Respondent’s
failure to meet at reasonable times—a failure that is oth-
erwise entirely unexplained—is that the Respondent did

4 Contrary to the judge, I do not find the content of this proposal to
have been unlawful. See Lexington Health Care Group, 328 NLRB
894 (1999) (Board upheld contractual provision waiving union’s right
to organize certain employees as a bar to union’s filing of petition
seeking representation election).
GARDEN RIDGE MANAGEMENT 137
not wish to reach an agreement. The two alleged viola-
tions are not separate, but inextricably linked.5
Further, as the judge correctly found, the Respondent’s
continued advancement of proposals that would require
protracted negotiations, while at the same time inexpli-
cably and invariably refusing the Union’s requests for
additional bargaining sessions, demonstrated that the
Respondent was not serious about reaching an agree-
ment.6
In particular, I would find that the Respondent’s with-
drawal and resubmission of proposals included in the
“Management Rights” provision had an especially strong
tendency to “stretch out the negotiations [by] produc[ing]
renewed controversies over old ground.” Prentice-Hall,
Inc., 290 NLRB 646, 646–647 (1988). That the Respon-
dent had previously warned the Union that it might see
some of the proposals again did not mitigate the actual
effect of prolonging negotiations. The parties never
reached agreement on the provisions that had been rein-
troduced.
The majority contends that the Respondent “was voic-
ing its intent not to retreat from the substance of its bar-
gaining position.” However, this is too simple a view of
the situation. While the withdrawal and resubmission of
proposals was completed within 2 weeks, the Respon-
dent’s tactic both reversed the parties’ progress at nego-
tiations and resurrected problematic bargaining propos-
als, already rejected by the Union.7 The migration of
these terms into several other proposals, instead of a sin-
gle proposal, may well have created additional chal-
lenges to reaching agreement. The Respondent’s con-
duct of “pretending to concede on some matter particu-
larly objectionable to the Union, while retaining essen-
tially the same provision in another clause in the Re-
spondent’s overall contract proposal (or transferring the
provision to another clause)” certainly does not evidence
a desire to reach an agreement. Prentice-Hall, Inc., 290
NLRB at 646.

5 The majority is incorrect in suggesting that Sec. 8(d) of the Act it-
self supports viewing the requirement to “meet at reasonable times” and
the requirement to “confer in good faith” as somehow distinct. The
Supreme Court has told us that in interpreting the Act, “we must not be
guided by a single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and policy.” Mastro
Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956). The “meet” and
“confer” requirements must be seen as interrelated components of the
statutory duty to bargain collectively. As the facts of this case confirm,
the two requirements cannot be separated without undercutting the duty
to bargain.
6 The General Counsel has not excepted to the judge’s finding that
the substance of various proposals was not indicative of bad faith bar-
gaining on the part of the Respondent.
7 As the judge remarked, in some instances, these proposals consti-
tuted a “dramatic rebuff” to the Union.
C.
I would also find that the remark by Antone during ne-
gotiations that he “enjoyed taking time off between meet-
ings to contemplate what was done during the meeting,”
is a candid admission that reaching an agreement was not
of any genuine concern to the Respondent. Clearly, this
statement echoes the earlier expressions by Ferguson and
Rutherford that the Respondent would manipulate nego-
tiations to allow it to avoid reaching an agreement with
the Union. When viewed in light of the Respondent’s
conduct during bargaining, these statements are persua-
sive evidence that the Respondent never intended to
reach an agreement with the Union.
D.
In finding that the Respondent bargained in good faith,
the majority cites the number of times the Respondent
met with the Union and the number of items tentatively
agreed upon, without properly considering the Respon-
dent’s overall conduct.
The majority’s reliance on the number of times the
parties met is hard to understand, given the unanimous
finding that the Respondent violated the Act by refusing
to meet with the Union at reasonable times. Even more
perplexing is the majority’s reliance on the claim that the
Respondent’s refusals to meet more frequently with the
Union did not occur during the last several months of
negotiations and the period closer to the withdrawal of
recognition. The Union’s ongoing requests for additional
bargaining during the latter half of 2002 were steadfastly
disregarded by the Respondent. Surely the Union simply
gave up asking, rather than continue to make futile re-
quests. If anything, as noted by the judge, the time peri-
ods between negotiation sessions actually increased dur-
ing the final months of negotiations.
Further, although the Respondent and Union tenta-
tively agreed on a number of issues, no agreement was
reached on such significant issues as wages and health
care. Indeed, the record shows that the parties engaged
in few, if any, substantive discussions with regard to
these issues. Ultimately, the parties never came close to
reaching a collective-bargaining agreement.
In these circumstances, the number of meetings and
the list of agreed-upon proposals are not enough to pre-
vent a finding of surface bargaining. See Calex Corp.,
322 NLRB 977 (1997), enfd. 144 F.3d 904 (6th Cir.
1998) (finding that employer engaged in bad faith bar-
gaining by engaging in pattern of delay even though par-
ties met on 20 occasions over a 15-month period and
reached agreement on about 75 percent of contract).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD138
II.
Contrary to the majority, the Respondent’s withdrawal
of recognition from the Union, also violated the Act,
applying the principles of Master Slack Corp., 271
NLRB 78, 84 (1984).
Even assuming that the sole violation here was the Re-
spondent’s failure to meet with the Union at reasonable
times, that violation by itself would be sufficient to sus-
tain a finding of taint under Master Slack. I am not per-
suaded by the majority’s argument that the violation was
too remote in time to affect employee attitudes toward
the Union. Surely, the Respondent’s refusal to meet with
the Union affected the entire bargaining process, by de-
priving the Union of an opportunity to achieve more
rapid progress in resolving issues and preventing the par-
ties from being more readily able to conclude a collec-
tive-bargaining agreement by the end of the certification
year. “The Board has long recognized that dilatory bar-
gaining tactics . . . have a tendency to invite and prolong
employee unrest and disaffection from a union.” Frue-
hauf Trailer Services, 335 NLRB 393, 394 (2001). In
particular, failing to meet and bargain at reasonable times
and intervals “reasonably convey[s] the message that
union activity is futile.” Id. at 394–395.
That the withdrawal of recognition was tainted be-
comes even clearer, of course, in light of the Respon-
dent’s surface bargaining, which the majority fails to
find. That conduct significantly impeded the bargaining
process and was instrumental in the failure of the parties
to reach a contract during the certification year. By pre-
venting the Union from achieving results for employees,
such a violation would clearly have a tendency to cause
employee disaffection and therefore taint the withdrawal
of recognition. See Prentice-Hall Inc., 290 NLRB at 646
(withdrawal of recognition of union found to be unlawful
where employer had failed to negotiate with union in
good faith).
III.
In this case, it is the employees who are the true losers.
They selected a collective-bargaining representative, but
faced a hostile Employer who was determined from the
outset never to reach an agreement with the Union. As a
result, they understandably lost faith in the collective-
bargaining process. But for the Respondent’s actions,
this would not have happened. Such conduct should not
go unremedied. Accordingly, I dissent.
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 a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of these rights, guaranteed to
them by Section 7 of the National Labor Relations Act.
WE WILL NOT fail to meet with the Union, Teamsters
Local 745, at reasonable times and confer with it in good
faith to reach a collective-bargaining agreement at a time
when we have an obligation to bargain with the Union.
WE WILL meet with the Union at reasonable times and
confer with it in good faith to reach a collective-
bargaining agreement at a time when we have an obliga-
tion to bargain with the Union.
GARDEN RIDGE MANAGEMENT, INC.
Elizabeth A. Washka, Esq., for the General Counsel.
Steven L. Rahhal, Esq. and Christopher Antone, Esq. (Jackson
Lewis, LLP), of Dallas, Texas, for the Respondent.
James L. Hicks Jr., Esq., of Dallas, Texas, for the Charging
Party.
DECISION
STATEMENT OF CASE
KELTNER W. LOCKE, Administrative Law Judge. The Re-
spondent, Garden Ridge Management, Inc., failed to satisfy its
obligation under Section 8(d) of the Act to meet with the Un-
ion, General Drivers, Warehousemen and Helpers, Local Union
745, a/w International Brotherhood of Teamsters, AFL–CIO, at
reasonable times, thereby violating Section 8(a)(5) and (1) of
the Act. Because I conclude that this failure to meet was part
of a broader design to engage in surface bargaining, I find that
Respondent also breached its duty under Section 8(d) by failing
to confer in good faith with the Union. This, too, violated Sec-
tion 8(a)(5) and (1) of the Act.
Procedural History
On April 12, 2002, Board agents from Region 16 conducted
a representation election at Respondent’s distribution center in
Dallas, Texas. The Union received a majority of the valid votes
in the following collective-bargaining unit:
INCLUDED: All regular employees including
putaways, transporters, loaders, unloaders, stock coordina-
tors, checkers, order pullers, pickers, yard hosslers, inven-
tory control, shipping lead, checker lead, plant clericals,
GARDEN RIDGE MANAGEMENT 139
and receiving schedulers employed by the Employer at its
facility at 3700 Pinnacle Point #200, Dallas, Texas.
EXCLUDED: All other employees including office
clericals, management, guards and supervisors as defined
in the Act.
On April 22, 2002, the Board certified the Union to be the
exclusive representative of the bargaining unit employees. The
Union and Respondent began negotiations for an initial collec-
tive-bargaining agreement on May 15, 2002.
On October 10, 2002, in Case 16–CA–22275, the Union
filed an unfair labor practice charge against Respondent, alleg-
ing that since about August 2001, Respondent had failed and
refused to bargain in good faith. The Regional Office investi-
gated this charge. The Union amended this charge on October
17, 2002.
On April 28, 2003, the Union filed an unfair labor practice
charge against Respondent in Case 16–CA–22756.
On April 29, 2003, the Regional Director for Region 16 is-
sued a complaint against Respondent. In doing so, the Re-
gional Director acted on behalf of the Board’s General Counsel
(the General Counsel or the Government). Respondent filed a
timely answer.
On June 9, 2003, the Regional Director issued an order con-
solidating cases, consolidated complaint and notice of hearing.
(For simplicity, I will refer to this pleading as the complaint.)
Respondent filed a timely answer.
On June 30, 2003, hearing in this matter opened before me in
Fort Worth, Texas. Parties presented evidence on that date, on
July 1 through 3, 2003, and on July 16 and 17, 2003. On July
18, 2003, counsel for the General Counsel and for Respondent
presented oral argument.
Procedural Ruling
After Respondent rested its case, counsel for the General
Counsel called David Shirk as a rebuttal witness. Shirk had
been general manager of Respondent’s Dallas distribution cen-
ter until shortly before the April 12, 2002 election, when Re-
spondent terminated him, ostensibly for misconduct. The as-
serted misconduct did not relate to the election or the union
organizing campaign.
When the General Counsel called Shirk, Respondent ob-
jected that his testimony could not rebut any testimony given
by Respondent’s witnesses because Respondent’s testimony
related exclusively to the negotiations, which didn’t begin until
more than a month after Shirk’s discharge. Overruling Re-
spondent’s objection, I allowed Shirk to testify, subject to mo-
tion to strike. After completion of Shirk’s testimony, Respon-
dent did move to strike it, and I took that motion under advise-
ment.
After careful consideration, I have decided to deny Respon-
dent’s motion. The testimony which Respondent elicited while
cross-examining Shirk does, in fact, relate to testimony offered
during Respondent’s case. More than that, Shirk’s testimony
clearly affects how the testimony of Respondent’s witness
should be interpreted.
The General Counsel called Shirk to the stand to describe a
conversation which took place in his office while he was the
distribution facility’s general manager. Several other officials
of Respondent, including Human Resources Vice President
Kevin Rutherford, were present. Shirk testified that when one
of the managers asked what the “environment” of the distribu-
tion center would look like with a union, Rutherford said that
“we would basically tie the union up at the bargaining table and
we would not come to an agreement.”
Respondent had offered no evidence concerning this conver-
sation when it presented its case, so Shirk’s testimony about
Rutherford’s comment would not be proper rebuttal. Had Shirk
given no other testimony, I might well have granted Respon-
dent’s motion to strike.
However, on cross-examination, Respondent’s counsel asked
Shirk about a statement which Shirk attributed to Respondent’s
senior vice president, Dan Ferguson. Shirk had described this
matter in a pretrial deposition which Respondent’s counsel used
during the cross-examination.
Shirk’s deposition mentioned an occasion when Vice Presi-
dent Ferguson answered a question concerning what Respon-
dent would do if the Union won the election. Shirk quoted
Ferguson as explaining “there’s all kinds of things we can do,”
that “the bargaining would go on,” and that “the union won’t
get anything we don’t want to give them.”
The statement which Shirk attributed to Ferguson directly af-
fects the credibility of testimony given by the Respondent’s
chief negotiator, Christopher Antone, during Respondent’s
case. Antone testified that he “primarily consulted with” Vice
President Ferguson and, from this statement and other testi-
mony, I gather that while Antone was negotiating with the Un-
ion, he reported to Ferguson.
My conclusion that Ferguson “called the shots” gains addi-
tional strength from Antone’s closing argument, in which he
stated that this case was “about” Ferguson and that Ferguson
controlled the Respondent’s distribution facility, where the
bargaining unit employees worked. During that argument,
Antone further stated:
It’s uncontroverted that Ferguson was the senior vice presi-
dent of supply chain, that Ferguson was responsible for the
Dallas Distribution Center, that Ferguson was the decision
maker regarding the distribution center, and he vested me
with full authority to bargain for him at the table.
Without doubt, when Ferguson gave instructions to the man-
agement negotiators, they clearly reflected Respondent’s in-
tent—its good faith or bad faith—during the negotiations.
Negotiator Antone testified that Vice President Ferguson
gave him instructions to achieve several goals, including a con-
tract that preserved management’s operational flexibility. Fer-
guson also wanted an agreement that maintained Respondent’s
ability to recognize individual performance, and to retain and
reward the best employees.
Clearly, Respondent’s negotiator offered this testimony to
support its argument that its contract proposals were not in-
tended to stall the negotiations but instead sought to achieve
legitimate business objectives. However, the obligation to
bargain in good faith entails more than simply having legiti-
mate goals. A party must also pursue those objectives in a
spirit consistent with the collective-bargaining process, with a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD140
“mindset open to agreement” rather than one “opposed to true
give-and-take.” Hydrotherm, Inc., 302 NLRB 990, 994 (1991).
The words Shirk attributed to Ferguson, that “the union
won’t get anything we don’t want to give them” and that
“there’s all kinds of things we can do,” certainly reflect on
Ferguson’s mindset. To the extent that Union Negotiator An-
tone’s testimony suggests that Ferguson’s instructions were
consistent with Respondent’s bargaining obligation under the
Act, Shirk’s testimony calls such a conclusion into question.
Therefore, Shirk’s testimony properly may be considered rebut-
tal evidence and Respondent’s motion to strike it is denied.
Admitted Allegations
Based on the admissions in Respondent’s answer, I find that
the Government has proven the allegations in complaint para-
graphs 1, 2, 3, 4, 5, 7, and 10, and also paragraph 8, as amended
orally at the hearing. More specifically, I find that the Union
filed and served the charge as alleged in the complaint. I also
find that it is a labor organization within the meaning of Section
2(5) of the Act.
Additionally, based upon Respondent’s admissions, I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and satisfies both the
statutory and discretionary standards for the exercise of juris-
diction. Further, I find that it is a Delaware corporation which
operates retail stores, and that to supply these stores, it also
maintains a distribution center and warehouse in Dallas, Texas.
The employees represented by the Union work at that center
and warehouse.
Further, Respondent has admitted that at material times until
March 2003, Kevin Rutherford held the position of senior vice
president of human resources and in that position was Respon-
dent’s supervisor and agent within the meaning of Sections
2(11) and 2(13) of the Act, respectively. I so find. Respon-
dent’s attorney and chief negotiator, Christopher Antone, stated
on the record that he had full authority to negotiate on his cli-
ent’s behalf. I find that at all material times, he was Respon-
dent’s agent within the meaning of Section 2(13) of the Act.
Paragraph 8 of the original complaint alleged that the Board
certified the Union as the exclusive bargaining representative
on April 12, 2002, which was the date of the election. During
the hearing, the General Counsel orally amended the complaint
to allege the date of certification as April 22, 2002, and Re-
spondent orally amended its answer to admit the corrected alle-
gation. I find that on April 22, 2002, the Board certified the
Union to be the exclusive bargaining representative of the bar-
gaining unit employees.
Paragraph 10 of the complaint alleges, and Respondent’s an-
swer admits, that at various times from May 2002 through
March 2003, Respondent and the Union met for the purposes of
collective-bargaining with respect to wages, hours, and other
terms and conditions of employment of the employees in the
bargaining unit. I so find.
Paragraph 12 of the complaint alleges, and Respondent ad-
mits, that on April 25, 2003, it withdrew recognition from the
Union. I so find.
Other portions of the complaint allege that Respondent’s ac-
tions violated Section 8(a)(5) and (1) of the Act. Respondent
denies that it acted unlawfully.
Disputed Allegations
The Government alleges that Respondent negotiated with the
newly-certified Union in bad faith to slow down the process
until employees became so frustrated they circulated a petition
withdrawing their support from the Union. Based on that peti-
tion, Respondent withdrew recognition from the Union. The
General Counsel alleges that Respondent lawfully could not
take this step because its own unfair labor practices had caused
the employee discontent. In discussing the Government’s the-
ory, it may be helpful to begin by summarizing some basic
principles.
For the first year after the Board certifies a labor organiza-
tion as the employees’ exclusive bargaining representative, it
presumes conclusively that a majority of the bargaining unit
employees continue to support the union. During this period,
an employer cannot justify withdrawing recognition from the
union by citing doubts about the union’s majority status. After
the “certification year” ends, the union continues to enjoy a
presumption of majority status but this presumption may be
rebutted by evidence to the contrary.
The Board’s case law documents that sometimes, an em-
ployer not wishing to deal with a union will use various tactics
to stall negotiations. Rather than bargaining in good faith with
the newly certified union, such an employer will drag out the
negotiating process until the certification year ends. During the
lengthy and fruitless negotiating, employees may become dis-
couraged enough to change their minds about union representa-
tion.
As noted above, the Government alleges that Respondent
engaged in such tactics. More specifically, the General Coun-
sel alleges that Respondent engaged in “surface bargaining”—
going through the motions of negotiating without intending to
reach an agreement—producing the kind of employee disaffec-
tion described above. Under the General Counsel’s theory,
Respondent’s bad faith bargaining caused the employee discon-
tent, and it therefore has no legal right to end the bargaining
relationship.
This theory does not challenge the Respondent’s assertion
that a majority of unit employees no longer wants the Union to
represent them, but attributes their change of mind to Respon-
dent’s allegedly unlawful conduct. Therefore, if the Govern-
ment proves that Respondent bargained in bad faith, that same
evidence will be sufficient to render the withdrawal of recogni-
tion unlawful. On the other hand, if the record fails to demon-
strate that Respondent breached its duty to bargain in good
faith, the evidence also will be insufficient to establish that
Respondent unlawfully withdrew recognition from the Union.
Theories Underlying Alleged Violations
In the present case, the complaint alleges that Respondent
demonstrated bad faith “by its overall conduct” including four
types of conduct described in complaint paragraph 11:
(1) Respondent failed to devote sufficient time to bar-
gain.
GARDEN RIDGE MANAGEMENT 141
(2) Respondent offered proposals designed to frustrate
the bargaining process.
(3) Respondent reproposed language initially pro-
posed in a management rights clause and refused to bar-
gain further on said individual proposals.
(4) Respondent delayed making a wage proposal.
Complaint paragraph 12 alleges that on April 25, 2003, Re-
spondent withdrew its recognition of the Union as the exclusive
collective-bargaining representative of the employees in the
unit. Complaint paragraph 13 alleges:
By its overall conduct, including the conduct described
above in paragraphs 11 and 12, Respondent has failed and re-
fused to bargain in good faith with the Union as the exclusive
collective-bargaining representative of the Unit.
Reading the language of complaint paragraphs 11 and 13 to-
gether, it appears clear that the Government is proceeding un-
der the theory that Respondent engaged in “surface bargain-
ing,” pretending to negotiate but with the secret intention of
preventing rather than achieving agreement. Indeed, counsel
for the General Counsel tried this matter as a “surface bargain-
ing” case.
Additionally, for reasons discussed below under the “Legal
Principles” heading, I believe that the complaint language
quoted above subsumes a theory of violation of Section 8(a)(5)
somewhat different from a “surface bargaining” theory. In my
view, the complaint also sufficiently alleges an 8(a)(5) violation
based on Respondent’s failure to fulfill its obligation to meet
with the Union at reasonable times.
Because a “failure to meet at reasonable times” theory differs
somewhat from a “surface bargaining” theory, due process
requires me to determine whether Respondent had clear notice
that it must defend against both theories of violation, and a fair
opportunity to do so. No violation may be found unless the
matter has been fully and fairly litigated. The mere presenta-
tion of evidence relevant to a possible violation does not satisfy
the “fully and fairly litigated” requirement. See Mine Workers
District 29, 308 NLRB 1155, 1158 (1992). As the Board re-
cently emphasized, it “is axiomatic that a respondent cannot
fully and fairly litigate a matter unless it knows what the accu-
sation is.” Champion International Corp., 339 NLRB 672
(2003) (complaint alleging 8(a)(5) unilateral change violation
was insufficient to place the respondent on notice that it would
also have to defend against an 8(a)(5) direct dealing allegation.)
See also Stage Employees IATSE (Hughes-Avicom Interna-
tional), 322 NLRB 1064 (1997), in which the Board refused to
find that the respondent had violated the Act in certain ways not
alleged in the complaint.
In the present case, I conclude that the complaint did place
Respondent on fair notice of the allegation that it had failed to
meet with the Union at reasonable times. Thus, complaint
paragraph 11(1) alleges that “Respondent failed to devote suffi-
cient time to bargaining.”
Moreover, during opening argument, the General Counsel
stated, in part, “we’ll present testimony through [Union Nego-
tiator] Ellison which will show that from the first meeting that
the union had a concern about the number of times the com-
pany was agreeing to meeting, which is twice a month basi-
cally, that the company and the union were not meeting long
enough to reach a contract by July. . . .”
It appears clear from context that the General Counsel was
not asserting that Respondent violated the Act by failing to
meet often enough to reach a contract by July. The Act does
not oblige a party to seek agreement by any particular deadline,
but instead requires, more generally, that the parties meet “at
reasonable times.” Rather, the General Counsel was arguing
that from a very early point in the bargaining, the Union’s ne-
gotiators wanted to meet more frequently but that such con-
cerns fell on deaf ears.
To support its “surface bargaining” theory of violation, the
Government contends, in part, that Respondent demonstrated
bad faith by ignoring the Union’s requests to meet more often.
In effect, the General Counsel argues that when a party adheres
to a sparse, unproductive negotiating schedule notwithstanding
repeated requests for more meetings, this stubborn insistence on
a leisurely pace provides evidence of bad faith supporting a
finding of “surface bargaining.”
However, not every refusal to agree to a proposed meeting
date warrants an inference of bad faith. For example, if a nego-
tiator’s need for prompt medical care caused him to reject one
particular proposed date, that action would say nothing about
his motivation over the course of negotiations. An inference of
bad faith arises not because a party has rejected a number of
proposed bargaining dates but because it did so unreasonably,
thereby manifesting indifference to reaching agreement.
By arguing that bad faith may be inferred from Respondent’s
refusal to agree to more frequent bargaining sessions, the Gen-
eral Counsel implicitly contends that Respondent’s unwilling-
ness to meet more often was unreasonable. Only an unreason-
able refusal to meet would be probative because a reasonable
refusal to meet does not indicate bad faith. Thus, when the
General Counsel predicates a surface bargaining theory, in part,
on a respondent’s unreasonable rejection of meeting dates, the
Government must present much the same evidence needed to
establish that a party breached its 8(d) duty to meet at reason-
able times.
By alleging that Respondent had failed to devote sufficient
time to bargaining, complaint paragraph 11(1) clearly put Re-
spondent on notice that it would need to present evidence
showing that it did bargain a sufficient number of times or
stood ready to do so. Being willing to bargain a sufficient
number of times means being willing to bargain a reasonable
number of times. Therefore, I conclude that the parties fully
and fairly litigated the issue of whether Respondent breached
its 8(d) duty to meet at reasonable times.
Complaint paragraphs 12 and 13, read together, allege that
Respondent violated the Act by withdrawing recognition from
the Union. It may be noted that the General Counsel does not
assert that Respondent’s withdrawal of recognition from the
Union was unlawful because it was made in the absence of a
bona fide doubt concerning the Union’s continuing majority
status. Rather, the Government contends that the employees
became disaffected with the Union because of Respondent’s
bad-faith bargaining. The law does not allow an employer to
benefit from its own wrongdoing by withdrawing recognition
from a union when the employer’s unfair labor practices caused
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD142
the union to lose employee support. Lee Lumber & Building
Material Corp., 322 NLRB 175 (1996).
Legal Principles
An employer’s duty to bargain with a labor organization
arises when a majority of employees in an appropriate bargain-
ing unit select the union to represent them. In this instance, the
duty arose when the Union won a majority of the votes in the
April 12, 2002 election.
The Board’s subsequent certification of representative, ad-
mitted by Respondent, left no doubt that Respondent had a duty
to recognize the Union and bargain with it concerning the
wages, hours, and working conditions of the employees in the
bargaining unit. Section 8(d) of the Act defines this duty to
bargain:
[T]o bargain collectively is the performance of the mutual ob-
ligation of the employer and the representative of the employ-
ees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement or any ques-
tion arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession. . . .
29 U.S.C. §158(d).
Significantly, the duty to bargain requires compliance with
all of the following different elements: (1) meeting at reason-
able times; (2) conferring in good faith; (3) negotiating a con-
tract; and (4) on request, reducing the agreement to writing. I
have listed these obligations separately to emphasize that a
party may fall short of its 8(d) responsibility, and therefore
violate Section 8(a)(5), by failing to satisfy any of them.
The General Counsel’s primary theory concerns the require-
ment that an employer must “confer in good faith.” The Gov-
ernment argues that Respondent engaged in “surface bargain-
ing,” going through the motions of negotiation but with a fixed
intent to avoid an agreement rather than achieve one.
As discussed above, I believe the complaint fairly raises an-
other legal theory, namely, that Respondent violated another
distinct duty under Section 8(d), the duty to meet at reasonable
times. Proving a violation under this theory is somewhat more
straightforward than proving that a party failed to confer in
good faith.
“Bad faith” is a state of mind which, so far at least, cannot be
detected by MRI or other brain scans. The best evidence of it
probably would be an admission by a party’s negotiator and the
next best evidence might be a subpoenaed document describing
the bargaining strategy and objectives. In real life, such evi-
dence seldom appears. Surface bargaining involves a bit of
cleverness, and someone clever enough to do it usually is clever
enough not to write about it in his notes.
So bad faith typically must be inferred from some outward
and visible signs of the inner disgrace. Complaint paragraph 11
lists a number of ways that Respondent, according to the Gov-
ernment, manifested bad faith.
Although determining whether a party acted in bad faith of-
ten involves the tricky task of drawing sound inferences, decid-
ing whether a party refused to meet at reasonable times is more
straightforward. Testimony and bargaining notes will establish
how many times a party offered to meet, how many times the
party refused to meet, and how often the parties really did meet.
Once the judge has ascertained how often a party was willing
to meet, the next step is to determine whether this amount con-
stitutes a “reasonable” number of times. As in other areas of
the law, deciding what is “reasonable” cannot be done with
absolute precision, but the judge, and ultimately the Board, can
make this determination without having to infer very much
about the party’s inner state of mind.
Determining how many bargaining sessions constitute a rea-
sonable amount of time involves making an objective estimate
by applying general knowledge about labor negotiations to the
specific facts of the case. The Board has plenty of knowledge
about labor negotiations.
Congress established the Board as an agency with special
expertise in the field of labor relations. By hearing and decid-
ing collective-bargaining cases for nearly seven decades, the
Board has become familiar with the challenges facing labor
negotiators in many different circumstances. Thus it can ap-
preciate, from the perspective of the parties, whether the magni-
tude of the task facing the negotiators is grossly out of propor-
tion to the time a party is willing to devote to it.
In addition to the Board’s experience, common sense sheds
light on what amount of time is reasonably necessary for bar-
gaining under various circumstances. Obviously, it will take a
lot more time to negotiate an initial contract, because every
single item will be up for discussion. Conversely, it reasonably
will take less time to negotiate subsequent agreements, as a
general rule, because the parties already have settled many
issues.
Similarly, parties reasonably would need less time for bar-
gaining about a provision that is common in the industry than
for proposed language which is novel. Certainly, there is noth-
ing wrong with proposing new or unusual language which, in
fact, might prove better tailored to the parties’ needs than “off–
the–rack” articles from other contracts. However, it reasonably
will require more time to negotiate such customized language
because both sides must become fully familiar with the pro-
posal and all its ramifications.
Another commonsense notion suggests that, all else being
equal, it reasonably will take more time to negotiate the lan-
guage in a 4-page proposal than in a 1-paragraph proposal. Of
course it is just as proper for a party to propose a lengthy con-
tract term as a short one, and the parties might well favor a
longer proposal which defines their obligations more precisely.
However, the length and complexity of a proposal will affect
the amount of time reasonably necessary to discuss it at the
bargaining table. To satisfy the 8(d) obligation to “meet at
reasonable times,” a party certainly must be willing to spend an
amount of time discussing its proposals which the proposals
foreseeably would require.
To summarize, “surface bargaining” describes a party’s fail-
ure to satisfy the 8(d) requirement to confer with the union in
good faith. Because a lack of good faith involves intention or
state of mind, it often reveals itself only indirectly, and must be
inferred from the party’s conduct.
GARDEN RIDGE MANAGEMENT 143
On the other hand, a “failure to meet at reasonable times”
violation arises from failure to satisfy the 8(d) duty to do just
that. Such a legal theory focuses on evidence concerning how
long and how often a party was willing to meet and whether
this amount of time was reasonable under the circumstances.
Respondent’s Conduct During Negotiations
The parties stipulated that the Respondent and Union began
negotiations with a meeting on May 15, 2002, and that the last
bargaining session took place April 7, 2003. The parties met 20
times before Respondent withdrew recognition.
Typically in collective-bargaining, each side proposes a con-
tract consisting of a number of different articles. When the
parties reach agreement on the language to be included in a
particular article, the negotiators will mark it “T.A.” for “tenta-
tively agreed.” In the present case, the parties stipulated that
the Union and Respondent reached tentative agreement on the
following articles on the dates indicated:
Military Leave June 14, 2002
Duration June 27, 2002
Visitation Rights June 27, 2002
Articles of Agreement July 18, 2002
Recognition July 18, 2002
New Employees July 25, 2002
Bulletin Boards August 15, 2002
Funeral Leave/Bereavement Leave August 15, 2002
Arbitration September 4, 2002
Management Rights September 19, 2002
Bonds October 1, 2002
Jury Duty October 1, 2002
Legality/Stability of Agreement October 1, 2002
Grievance Procedure October 29, 2002
Seniority October 29, 2002
Extra Contract Agreement January 10, 2003
No Oral or Implied Agreement January 10, 2003
Uniforms January 10, 2003
Examinations January 30, 2003
Wage Rate and Classifications January 30, 2003
Wash Rooms and Lunch Rooms January 30, 2003
Attendance March 7, 2003
Automatic Payroll Deposit March 7, 2003
Election Day/Time Off to Vote March 7, 2003
Employee Discount March 7, 2003
Intent and Purpose March 7, 2003
Sick Personnel March 7, 2003
Substance Abuse Control March 7, 2003
The General Counsel argues that these 28 tentative agree-
ments do not represent significant progress because a number
of major items, such as wages, remained unresolved. (The
agreed-upon article, “Wage Rate and Classifications,” did not
include actual wage rates, which remained in dispute.) Re-
spondent’s reply, that these tentative agreements concern many
substantive provisions with economic consequences, will be
discussed later in this decision.
Obviously, good faith—or the absence of it—cannot be de-
termined by counting up the number of tentative agreements or
even by some more complex mathematical formula. No de-
monstrable correlation exists between the sheer number of
agreed-upon proposals and the presence or absence of good
faith.
The General Counsel asserts that Respondent revealed bad
faith, in part, by engaging in the conduct described in complaint
paragraph 11. These allegations are discussed below.
Alleged Failure to Devote Sufficient Time to Bargaining
Complaint paragraph 11 alleged, in part, that Respondent
failed to devote sufficient time to bargaining. At hearing, the
General Counsel described two ways in which Respondent
assertedly failed to spend enough time in negotiations with the
Union. According to the General Counsel, Respondent’s repre-
sentatives showed up late for meetings and left early. Addi-
tionally, the Government contends, Respondent only met with
the Union, on average, twice a month.
Alleged Arriving Late and Leaving Early
The record establishes that Respondent’s negotiators did not
always arrive on time. The Union’s chief negotiator, Robert
Bridges, testified as follows:
The company shows up late. They leave early. It’s a pattern.
They caucus a lot. We’re not spending many hours a day ne-
gotiating. We’re spending a lot of time caucusing and wait-
ing.
This testimony is uncomfortably vague. Rather than point-
ing to any specific instances of tardiness which actually had
occurred in the past, Bridges spoke in the present tense. It
seems unlikely that Bridges intended to suggest that Respon-
dent continued to be late for meetings because the Union no
longer was meeting with the Respondent. Instead, it appears
that Bridges was using the present tense in a more figurative
way, to express a generality.
A generality may find its roots in unstated facts, but it also
represents the conclusion that a particular observer drew from
whatever information he privately considered relevant and suf-
ficient. Severed from a foundation of verifiable fact, such a
conclusion is free to float upward, balloonlike, expanding as it
goes.
Therefore, it is important to test such a general statement
against other evidence in the record, such as Bridges’ bargain-
ing notes, in evidence as General Counsel’s Exhibit 74. The
extent to which Bridges mentions such incidents in his bargain-
ing notes gives some idea of how much impact tardiness may
have had on the bargaining process.
Bridges’ notes are not always helpful regarding when a par-
ticular bargaining session was scheduled to begin and when the
negotiators actually arrived. In any case, they do not document
a chronic and consistent problem with tardiness.
For example, Bridges’ notes indicate that the parties’ De-
cember 6, 2002 bargaining session was scheduled to begin at 8
a.m. and that the Respondent’s negotiators arrived at 8:10. On
November 13, 2002, these notes indicate that the bargaining
session was to begin at 8 a.m. but that Respondent’s representa-
tives did not arrive until 8:20.
Even though the notes suggest Respondent’s representatives
arrived late on these two of the 20 bargaining sessions, they fail
to establish any pattern of tardiness as a tactic of delay. Any
number of factors, bearing no relationship to good or bad faith,
could produce occasional lateness. Indeed, Bridges’ notes indi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD144
cate that Union Negotiator Michael Kline arrived late at the
October 29, 2002 meeting.
Incidents of tardiness are relevant to this case if they are part
of a plan to frustrate the bargaining process or evince a fixed
intent not to reach agreement. In deciding whether the late
arrivals indicate such a design, I also take into account that,
pursuant to the Respondent’s suggestion, the first bargaining
sessions took place at the Union’s offices. The parties contin-
ued to meet at the Union’s offices until the Union began hand-
billing Respondent’s retail stores in fall 2002.
It would seem uncommonly disingenuous, indeed devious,
for a company to propose an accommodation saving the union
negotiators travel time and then arrive at the bargaining ses-
sions late to thwart the process. Therefore, I infer no bad faith
from those instances when Respondent’s negotiators were
tardy.
Bridges’ notes also do not establish that Respondent’s nego-
tiators invariably left early. Page 40 of those notes does bear
the following notation: “3:30 Kevin has to go to plane.” It
appears clear that this entry refers to Kevin Rutherford, who
was then Respondent’s vice president of human resources.
Rutherford worked in Respondent’s Houston office and flew to
Dallas for the bargaining sessions.
There is some ambiguity concerning the date when Ruther-
ford had to leave early to catch a plane, because this notation
appears above the entry concerning the start of negotiations on
November 26, 2002. Most likely, the note signifies that Ruth-
erford left the November 13, 2002 bargaining session at 3:30.
The notes of another union negotiator, Douglas Ellison, also
refer to an incident when bargaining had to be concluded earlier
than desired because Respondent’s chief negotiator, Christo-
pher Antone, had to catch a plane. That session, on June 6,
2002, also began 25 minutes after the scheduled 10 a.m. start-
ing time, but Ellison’s notes do not indicate what caused the
delay.
Because of the enhanced security following the September
11, 2001 tragedy, negotiating the lines at an airport—
particularly a hub such as Dallas/Fort Worth International—can
seem almost as formidable as negotiating a labor agreement.
Therefore, I will infer no bad faith from the fact that a member
of Respondent’s bargaining team left early to catch a plane.
In addition to the incidents discussed above, the record indi-
cates there may have been some other instances of late arrival
or early departure. Even when considered all together, such
instances do not, by themselves, establish a pattern from which
bad faith may be discerned. See, e.g., Houston County Electric
Cooperative, 285 NLRB 1213, 1215 (1987) (“Although [re-
spondent’s representative] was often late . . . his tardiness
amounted to no more than 10 to 20 minutes per session and
thus was not significantly disruptive of the bargaining proc-
ess.”)
In his testimony, quoted above, Bridges also alluded to how
much time Respondent spent in caucuses. Caucuses constitute
an integral and important part of the bargaining process. They
provide necessary time to consider proposals presented by the
other party, and they also allow time to formulate counterpro-
posals that address, intelligently and creatively, the concerns
raised at the bargaining table. Thus, I would not regard the
minutes spent in a caucus in the same way as bargaining time
dissipated by a negotiator arriving late or leaving early. Addi-
tionally, the evidence fails to establish that Respondent called
or prolonged its caucuses to frustrate the bargaining process.
To summarize, Respondent’s occasional late arrivals and
early departures do not, considered alone, constitute a failure to
meet with the Union at reasonable times. Compared to the
Respondent’s refusal to schedule more bargaining sessions,
discussed below, the tardy arrivals and early departures caused
relatively little damage to the negotiating process.
Number of Bargaining Sessions
At hearing, the parties stipulated that the Union and Respon-
dent met on 20 specified locations beginning with a bargaining
session on May 15, 2002, and ending with the bargaining ses-
sion on April 7, 2003. Generally, all witnesses gave consistent
testimony about these meetings. To the extent that the testi-
mony may be in conflict, I rely on that given by Union Negotia-
tors Bridges and Ellison.
Based on my observations of the demeanor of the witnesses,
I conclude that Bridges and Ellison gave reliable testimony.
Further, I conclude that the notes taken by Bridges and Ellison
accurately reflected events during the bargaining sessions. In
this regard, I take into account an observation Respondent’s
counsel made in closing argument, to the effect that the notes of
the union negotiators reliably recorded events during bargain-
ing which they considered significant.
At the first negotiating session, the parties discussed the pos-
sibility of meeting once a week, notably, on Thursdays. The
parties never reached agreement on such a schedule. The sec-
ond bargaining session took place on June 6, 2002, some 3
weeks after the first. The parties next met on June 14, 2002.
This third session ended only 5 hours after it began, when Re-
spondent’s chief negotiator, Christopher Antone, said he had to
return to his office.
The fourth bargaining session did not take place until almost
3 weeks after the third, and by this time the union negotiators
were becoming concerned about the slow pace of the bargain-
ing. Union Negotiator Ellison asked if several days could be
“strung together,” in other words, if the parties could arrange to
meet several days in a row. Respondent’s negotiator, Antone,
answered, “probably not,” but said he would check on it.
The parties waited 3 weeks before the next bargaining ses-
sion, which took place on July 18, 2002. Towards the begin-
ning of this meeting, a union negotiator told the Respondent’s
negotiators that they were going too slowly and it seemed as if
the company was stalling. Respondent’s negotiators denied
such an intention.
At the beginning of the sixth bargaining session, on July 25,
2002, Union Negotiator Bridges expressed concern about the
pace of the negotiations and said that they needed to meet
longer and more often. Respondent’s negotiators replied that
they would check on that possibility.
The next bargaining session did not take place for 20 days.
When the parties did meet, on August 15, 2002, Union Negotia-
tor Ellison again expressed the opinion that the parties were not
meeting enough. Nonetheless, another 19 days elapsed before
the parties met again.
GARDEN RIDGE MANAGEMENT 145
At the September 4, 2002 bargaining session, Union Nego-
tiator Bridges informed Respondent that if they did not reach
agreement on a contract soon, the Union would begin handbill-
ing Respondent’s stores. The Union later did engage in such
handbilling. Respondent then insisted that the bargaining ses-
sions take place at a neutral location, rather than at the Union
offices.
The parties held their 9th and 10th negotiating sessions on
September 19, 2002 and October 1, 2002. The 11th bargaining
session took place 9 days later. At this October 10, 2002 meet-
ing, Union Negotiator Ellison asked Respondent’s negotiators
if they could stay over and continue bargaining the next day.
Respondent’s negotiators declined.
This meeting became rather heated, with one company nego-
tiator and one union negotiator exchanging insults. At the end
of the session, Union Chief Negotiator Bridges said that they
needed to set more meeting dates because they were getting
behind. Rather than agreeing to meet more frequently, Re-
spondent’s Chief Negotiator Antone said he would see them on
October 29.
Thus, the 12th bargaining session took place 2-1/2 weeks af-
ter the 11th. At the beginning of this meeting, Union Chief
Negotiator Bridges said that they must “string some meetings
together” to be productive. Bridges testified that Antone re-
plied that he enjoyed taking time off between meetings. The
bargaining notes support this testimony, which I credit.
The next bargaining session took place 2 weeks later, on No-
vember 13, 2002. It began about 8:20 a.m. and ended some-
time around 3:15 to 3:30 p.m., after Respondent’s Negotiator
Rutherford said he had to leave to catch a plane.
During this meeting, Union Negotiator Kline accused Re-
spondent of engaging in delaying tactics by refusing to meet
more often. Rather than suggesting an earlier meeting date,
Respondent’s Chief Negotiator Antone said that he would see
them at the next meeting, on November 26, 2002.
At this November 26, 2002 meeting, Antone asked the union
negotiators if they could meet on December 5, 2002, and they
agreed. Respondent’s chief information officer attended the
November 26, 2002 meeting and described at length the new
computer system which Respondent would be installing to
track its warehouse inventory. At one point, Union Chief Ne-
gotiator Bridges protested that the Union already understood
the system and that they should be spending this time negotiat-
ing. The record is unclear as to how much further time the
Respondent’s chief information officer spent describing the
computer system.
The parties next met on the evening of December 5, 2002.
This meeting concerned an announced layoff of employees,
rather than contract proposals.
At a bargaining session the next day, Union Chief Negotiator
Bridges pressed the Respondent for more meetings. Bridges
proposed that the parties meet again the following Monday,
December 9, and again on either Thursday or Friday, December
12 or 13. He also proposed bargaining sessions on December
16 and 20, 2002. Respondent declined to meet on any of these
dates.
Respondent’s Chief Negotiator Antone said that he would
get back to the Union on meeting dates. However, the next
bargaining session did not take place for more than a month.
The parties held their 17th bargaining session on January 10,
2003. This meeting began at 8 a.m. and ended around 3:40
p.m., when Respondent’s Negotiator Rutherford had to leave.
The parties next met on January 30, 2003, but did not meet
after that until March 7, 2003.
At the March 7 meeting, Respondent’s chief negotiator An-
tone, said that he would be available to meet with the Union on
March 28, but that he did not think the new human resources
director would be available. The next, and last, negotiating
session took place April 7, 2003. At that meeting, the parties
discussed scheduling a meeting on May 2, 2003 but that meet-
ing never took place because Respondent withdrew recognition
from the Union.
As discussed above, the Act requires both the employer and
the employees’ exclusive bargaining representative to meet at
reasonable times and confer in good faith concerning wages,
hours, and other terms and conditions of employment. Al-
though the Act does not define the term “reasonable,” common
sense is a reliable guide.
Whether an allotted amount of time is “reasonable” depends
on the magnitude of the task to be accomplished. Initial esti-
mates may prove incorrect because a job may turn out to be
more difficult than expected. In that event, the estimate must
be adjusted to fit the reality. It would hardly be reasonable for
someone to insist on spending only the small amount of time
originally considered sufficient when all the circumstances
shout that the initial estimate was too low.
Stated another way, collective bargaining does not present a
situation analogous to an automobile body shop, where a ser-
vice writer makes an estimate of the total cost of repair, and
that estimate then limits the car owner’s obligation to pay. No
service writer appears at the beginning of collective-bargaining
to tell the parties how many total hours they must spend to
discharge their 8(d) obligation. Rather, participants in collec-
tive bargaining have an ongoing obligation to devote reason-
able time to the process. What constitutes a reasonable amount
of time may well change depending on the circumstances and
the stage of negotiations.
In the present case, I conclude that Respondent never was
willing to schedule bargaining sessions often enough to satisfy
its statutory duty to meet with the Union at reasonable times. It
had a duty to meet often enough to give the collective-
bargaining process a reasonable chance of success. Clearly, it
knew, or should have known, that it was meeting with the Un-
ion less frequently than needed.
Respondent’s chief negotiator, Christopher Antone, is a cer-
tified labor law specialist in the State of Texas and a veteran of
many negotiations. His experience alone would tell him that
the meeting schedule was insufficient to reach agreement on a
contract within a reasonable time. Indeed, the fact that the
Union was not agreeing to his proposals should have placed
him on notice that he needed to do more talking, not less.
Moreover, the Union itself repeatedly requested additional
bargaining sessions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
Respondent’s actions demonstrate that it did not take these
requests seriously. For example, at the October 10, 2002 bar-
gaining session, when Union Negotiator Bridges said that they
needed to schedule more meeting dates because they were get-
ting behind, Respondent did not offer to meet at any time be-
fore the next scheduled meeting on October 29. Instead,
Bridges credibly testified, Antone replied that he would see
them on October 29.
On other occasions, when the Union requested additional
bargaining dates, Respondent’s negotiators replied that they
would “check on it,” but such checking did not result in sched-
uling more meetings. It is true that once, Respondent asked for
an additional bargaining session, which took place on the eve-
ning of December 5, 2002. However, Respondent sought this
meeting to discuss an expected layoff, not contract proposals,
and the December 5 meeting did not advance the negotiation of
a collective-bargaining agreement.
Notwithstanding their differences concerning what should be
included in a contract, the parties must work together to sched-
ule enough bargaining sessions to give the process a reasonable
opportunity to succeed. Respondent’s unwillingness to sched-
ule more sessions, as the Union requested repeatedly, does not
manifest the spirit of cooperation implicit in the duty to bargain
in good faith. Indeed, by October 2002, the lack of progress
had become so inescapably clear that no reasonable person
would have considered the meeting schedule sufficient. Yet
Respondent didn’t even give the Union a serious explanation
for its refusal.
Sometimes, a respondent will try to justify infrequent meet-
ings by raising the “busy negotiator” defense, asserting that
other business or legal matters prevented its negotiator from
attending more bargaining sessions. The Board consistently
rejects this defense. See, e.g., Fruehauf Trailer Services, 335
NLRB 393 (2001).
In the present case, however, Respondent did not even use
the “busy negotiator” excuse. Union Negotiator Bridges gave
the following testimony, which I credit, concerning his request,
on October 29, 2002, to schedule bargaining sessions on con-
secutive days:
Q. And when you told Mr. Antone that you wanted to
string some meeting dates together, what was his re-
sponse?
A. Mr. Antone told me that he enjoyed taking time off
between meetings to contemplate what was done during
the meeting.
Antone’s reply does not suggest that he needed time to re-
view his notes to formulate counterproposals; instead, it indi-
cates that he simply took time recalling his performance at the
bargaining table for his own pleasure. Even assuming that
Antone spent half a day in such reverie—which seems implau-
sible considering the typical attorney’s quest for billable
hours—doing so hardly explains why he was unavailable to
meet with the Union more than once every 2 to 3 weeks.
Moreover, needing time for personal enjoyment does not ex-
cuse a negotiator’s failure to meet with the Union as often as
reasonably necessary to make progress in bargaining. A nego-
tiator may also enjoy catching trout, but he cannot justify a
refusal to meet with the Union by hanging a “gone fishing” sign
on his door.
Perhaps Antone’s “I enjoy contemplating” remark was noth-
ing but a wisecrack or attempt at humor. However, the record
does not establish that Respondent ever gave the Union any
better explanation for its unwillingness to meet on consecutive
days or to schedule bargaining sessions more frequently.
Indeed, even at the hearing, Respondent did not provide any
credible explanation as to why it could not have met more fre-
quently than twice a month. Similarly, it provided no explana-
tion regarding why it could not, as the Union requested, meet
on consecutive days.
The duty to bargain in good faith does not require a party to
meet any preordained number of times, such as once a week, or
twice a week, or every day. Rather, the law requires the party
to meet at reasonable times, and what is reasonable will depend
on the circumstances. When an existing bargaining schedule
proves inadequate, reasonable negotiators agree to change it.
Respondent would not.
Typically, parties will hold more bargaining sessions as they
near agreement. Such a course is reasonable because parties
also typically save the hard issues for last, and hard issues re-
quire more time. In the present case, Respondent did defer the
difficult “economic” issues until later in the bargaining, yet the
frequency of meetings did not increase. To the contrary, the
parties met more often at the start of the process than when it
ended.
One further point warrants discussion. Although the Act
does not set any kind of a deadline for meeting agreement, the
requirement that the parties meet “at reasonable times” also
includes the notion that the parties will work fast enough to
reach an agreement in the reasonable future.
Respondent has emphasized that the parties were not at im-
passe at the time it withdrew recognition. That, indeed, is an
understatement. It is difficult to predict how long it would
eventually take the Respondent and the Union to reach agree-
ment at the rate of two meetings a month but it is safe to say
that, absent some major, dramatic change, it would not be soon.
Respondent’s willingness to reach agreement with the Union
sometime in the “sweet by-and-by” is not good enough. Be-
cause a newly-certified union only enjoys an irrebuttable pre-
sumption of majority status for 1 year from the date of certifica-
tion, an employer may face some temptation to fiddle around in
negotiations for 12 months, hoping that when the certification
year ends, some disgruntled employees will circulate a petition
to decertify the union. Bargaining, however, is not a basketball
game in which one party can win by “letting the clock run out.”
In determining whether a respondent has been willing to
meet a reasonable number of times, the Board can take into
account the “certification year” factor. Considering this factor
does not impose a deadline on an employer to reach agreement
within one year, but simply means that the Board will be alert
to the possibility that an employer is dragging its heels.
In the present case, the parties met less frequently as the cer-
tification year neared its end. At this time, the parties had
many difficult issues to discuss. Under these circumstances,
Respondent’s willingness to meet once a month did not satisfy
its 8(d) duty.
GARDEN RIDGE MANAGEMENT 147
Examining the Respondent’s entire course of conduct during
the negotiations, I conclude that it failed to meet with the Union
at reasonable times, as required by Section 8(d) of the Act.
Therefore, I recommend that the Board find that Respondent
violated Section 8(a)(5) and (1).
Proposals Allegedly Designed to Frustrate Bargaining
Complaint paragraph 11(2) alleges that Respondent offered
proposals designed to frustrate the bargaining process. During
the hearing, the General Counsel asserted that the following
proposals (listed by their titles) fell into that category: Disci-
pline and Discharge, Complete Agreement, Intent of Agree-
ment, Nonbargaining Unit Personnel, Shop Stewards, Check-
off, Layoff and Recall, Health and Welfare, and Pension Plan.
Before examining these specific proposals, it is helpful to re-
view the extent to which I may infer bad faith from the content
of a particular proposal. The language of the statute, a Supreme
Court decision, Board precedent, and reasons of public policy
all affect what conclusions properly may be drawn from the
language a party proposed.
Section 8(d) of the Act specifically provides that it does not
require a party to agree to a proposal or make a concession.
Additionally, in H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970),
the Supreme Court held that the Board has no authority to write
terms into a collective-bargaining agreement. Thus, the Board
is not in the business of writing contracts or telling negotiators
what they should or should not put in a labor agreement.
If the Board were to pass on the “rightness” or “wrongness”
of a particular proposal—for example, by pronouncing that a
certain proposal was evidence of a party’s bad faith—the Board
would be entering the contract writing business through the
back door. Even though the Board didn’t issue an order telling
the parties what to include or exclude, a finding that a particular
proposal evidenced “good faith” or “bad faith” would have
much the same effect.
Some public policy reasons also favor maintaining a respect-
ful distance between the Government and the collective-
bargaining process. When two parties bargain creatively, the
result can be a unique agreement addressing their particular
concerns and needs. Undoubtedly, many preliminary proposals
will fall short of the mark before the parties find the right lan-
guage for their purposes. Were the Government to scrutinize
the proposals with too critical an eye, it could discourage origi-
nality and innovation.
Nonetheless, a party’s proposals sometimes do provide a
clue to its intentions, and to some extent, they may be consid-
ered in determining the presence or absence of good faith.
Such examination must be done delicately, in a way that least
inhibits the freedom of negotiators to propose original terms in
good faith. The Board has struggled to strike exactly the right
balance. For example, in Reichold Chemicals, 277 NLRB 639,
639–640 (1985), the Board dismissed the complaint, stating:
The Board will not attempt to evaluate the reasonableness of a
party’s bargaining proposals, as distinguished from bargain-
ing tactics, in determining whether the party has bargained in
good faith. Accordingly, the respondent’s insistence on broad
management-rights and no-strike clauses with a restrictive
grievance provision is not evidence of an intent to frustrate the
collective-bargaining process.
After the Board issued this decision, the charging party in that
case and the General Counsel moved for reconsideration. Re-
versing its dismissal of the complaint, the Board clarified its
previous holding:
On further reflection, we conclude that this statement
is an imprecise description of the process the Board under-
takes in evaluating whether a party has engaged in good-
faith bargaining . . . we wish to emphasize that in some
cases specific proposals might become relevant in deter-
mining whether a party has bargained in bad faith. The
Board’s earlier decision in this case is not to be construed
as suggesting that this Board has precluded itself from
reading the language of contract proposals and examining
insistence on extreme proposals in certain situations.
[Footnote omitted.]
That we will read proposals does not mean, however,
that we will decide that particular proposals are either “ac-
ceptable” or “unacceptable” to a party. Instead, relying on
the Board’s cumulative institutional experience in admin-
istering the Act, we shall continue to examine proposals
when appropriate and consider whether, on the basis of
objective factors, a demand is clearly designed to frustrate
agreement on a collective-bargaining contract. The
Board’s task in cases alleging bad-faith bargaining is the
often difficult one of determining a party’s intent from the
aggregate of its conduct. In performing this task we will
strive to avoid making purely subjective judgments con-
cerning the substance of proposals.
Reichold Chemicals, Inc., 288 NLRB 69 (1988). Thus, the
Board draws a line between considering the substance of a
proposal to ascertain whether it may be part of a pattern of
conduct revealing an intent to frustrate bargaining (permissi-
ble), and letting a subjective reaction to a proposal color its
judgment about the presence or absence of good faith (imper-
missible).
Even though the Board may consider proposals in the limited
fashion described above, it remains reluctant to base a conclu-
sion of good faith or bad faith solely on the content of a party’s
proposals. For example, in Coastal Electric Cooperative, 311
NLRB 1126 (1993), the Board reversed a judge’s finding of
surface bargaining because that conclusion was predicated only
on the content of the respondent’s proposals. The Board distin-
guished the facts in Coastal Electric from two other cases in
which it found bargaining in bad faith. In South Carolina Bap-
tist Ministries, 310 NLRB 156 (1993), and Western Summit
Flexible Packaging, 310 NLRB 45 (1993), other factors, such
as the manner in which the respondent presented the proposals
and the respondent’s conduct away from the bargaining table,
also supported a finding of bad faith.
The Board thus emphasizes that it does not scrutinize a
party’s proposals in isolation but takes notice of them in con-
sidering the party’s conduct as a whole. For example, in
Hardesty Co., 336 NLRB 258, 260 (2001), it stated:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD148
In determining whether the Respondent bargained in bad
faith, we look to the “totality of the Respondent’s conduct,”
both at and away from the bargaining table. Relevant factors
include: unreasonable bargaining demands, delaying tactics,
efforts to bypass the bargaining representative, failure to pro-
vide relevant information, and unlawful conduct away from
the bargaining table. See Atlanta Hilton & Tower, 271 NLRB
1600 (19[8]4); NLRB v. Stanislaus Implement & Hardware
Co., 226 F.2d 377 (9th Cir. 1955); and NLRB v. Arkansas
Rice Growers Assn., [400 F.2d 565 (8th Cir. 1968)] at 572.
Here, I will follow that course. I will consider whether a
common design emerges from all of Respondent’s actions,
including but not limited to the substance and timing of particu-
lar proposals.
Discipline and Discharge Proposal
At the June 14, 2002 bargaining session, Respondent gave
the Union a proposal for a contract term titled “Discipline and
Discharge,” consisting of five sections. The first section ex-
cluded the discipline of probationary employees from the
grievance procedure. The remaining sections stated as follows:
Section 2—The Employer may discipline and dis-
charge non-probationary employees for just cause. The
Employer may decide, in its judgment, whether discipline
or discharge is the appropriate penalty for any offense.
Just cause for discipline or discharge shall include, but not
be limited to, all of the offenses listed in the Work Rules.
Section 3—The Employer may discipline and/or dis-
charge employees for any reason in addition to the reasons
listed in Article ___ Work Rules.
Section 4—If, in accordance with the provisions of Ar-
ticle ___ Grievance Procedure, an arbitrator concludes that
a non–probationary employee engaged in any of the con-
duct listed in Article ___ Work Rules, just cause for the
discipline or discharge imposed shall have been estab-
lished and the grievance shall be denied.
Section 5—The absence of an offense from the list of
rules contained in Article ___ Work Rules shall not be
considered by an arbitrator in deciding whether just cause
exists for discipline or discharge based on an offense not
contained in the Work Rules.
Although the parties never reached agreement on a discipline
and discharge article, the Respondent did modify its proposal as
bargaining progressed. Moreover, Respondent told the Union
the reason for the language it proposed.
At hearing, Respondent’s counsel and chief negotiator,
Christopher Antone, explained that the language in this pro-
posal addressed, in part, a problem he had encountered while
representing another employer. An employee of that employer
had committed a very serious act of sexual harassment in the
workplace and lost his job because of it. However, an arbitrator
ordered the employee reinstated because of his long service
with the company. Antone intended the wording of Respon-
dent’s discipline and discharge proposal to preclude an arbitra-
tor from reinstating such an employee. From Respondent’s
perspective, the proposal would limit an arbitrator’s power to
be arbitrary.
There is nothing unlawful about Respondent’s discipline and
discharge proposal and I draw no inference of bad faith from it.
Complete Agreement Proposal
After the Union tendered a “maintenance of standards” pro-
posal which would obligate the Respondent to maintain all
terms and conditions of employment in effect, Respondent
countered with a proposal entitled “Complete Agreement.”
Commonly in collective bargaining, the language in this pro-
posal is called a “zipper clause.”
The complete agreement proposal provides that both parties
waive the right to bargain during the term of the collective-
bargaining agreement “with respect to any subject or matter not
specifically referred to or covered in this Agreement, even
though such subjects or matters may not have been in the
knowledge or contemplation of either or both parties at the time
this Agreement was signed.”
Another section of this proposal provides that Respondent
would not be deemed to have agreed to any term or condition
of employment not specifically set forth in this agreement.
“Any alleged past practice of the Employer which is not in-
cluded in this agreement shall not be considered agreed to.”
During negotiations, Respondent told the Union that it in-
tended to maintain the current terms and conditions of em-
ployment in effect, but to preclude future disputes, wanted the
parties to agree on what terms and conditions of employment
then existed. After substantial negotiations, the parties reached
agreement on contract language addressing the Respondent’s
concerns, although this language did not appear in a clause
labeled “Complete Agreement.”
Respondent gave the Union legitimate reasons for seeking
the language in its complete agreement proposal. Moreover,
such zipper clauses are lawful and, in fact, not uncommon in
collective-bargaining agreements. I draw no inference of bad
faith from this proposal.
Intent of Agreement Proposal
On June 14, 2002, Respondent gave the Union a proposal ti-
tled “Intent of Agreement” which is in evidence as Respon-
dent’s Exhibit 52. It stated, in its entirety:
During the life of this collective bargaining agreement, and
any extension thereof, the Union agrees not to seek to repre-
sent, solicit or accept into union membership any other indi-
vidual employed at or working out of any other of the Em-
ployer’s facilities.
On July 18, 2002, Respondent gave the Union a 3-paragraph
proposal titled “Intent and Purpose.” The first two paragraphs
proposed nothing controversial but simply constituted a pream-
ble summarizing what the parties hoped to achieve in the col-
lective-bargaining agreement. The final paragraph stated:
During the life of this Agreement, and any extension
thereof, the Union agrees not to seek to represent, solicit
or accept into union membership any other individual em-
ployed at or working out of any other of the Employer’s
facilities.
On January 30, 2003, Respondent submitted to the Union
another “Intent and Purpose” proposal with language identical
GARDEN RIDGE MANAGEMENT 149
to that given the Union on July 18, 2002. On March 7, 2003,
the parties tentatively agreed to this intent and purpose lan-
guage after deletion of the third paragraph, which contained the
language quoted above.
As noted above, the Board generally does not scrutinize col-
lective-bargaining proposals. However, I believe that the
Board is warranted in making an exception to this rule where
the proposal in question impinges upon rights established and
guaranteed by the Act. Congress established the Board to ad-
minister and enforce the Act, and it has both the authority and
the duty to make sure that employee rights under the Act are
protected.
For example, when a union and an employer entered into a
contract providing that the employer would make pension fund
contributions only for those employees who belonged to the
union, the Board ordered the union to cease and desist from
maintaining this provision in its collective-bargaining agree-
ment. Stage Employees IATSE (Hughes-Avicom International),
above, 322 NLRB at 1066. Ordering the respondent to cease
maintaining this provision did not put the Board in the contract
writing business; the Board remained, as always, in the rights
protecting business.
In the Reichold Chemical case, discussed above, the em-
ployee insisted to impasse on a management’s rights clause
which would cause the union to waive its right to engage in an
unfair practice strike and also its right to resort to the Board’s
processes. The Board held that the employer lawfully could
insist to impasse that the union waive its right to engage in an
unfair labor practice strike, but it could not insist to impasse
that the union waive its right to go to the Board.
Significantly, the Board found that such a waiver was a
nonmandatory subject of bargaining for two reasons: (1) It was
contrary to a fundamental policy of the Act and (2) was unre-
lated to terms and conditions of employment. Reichold Chemi-
cal, 288 NLRB at 79. Those same reasons apply to the objec-
tionable language in Respondent’s “intent and purposes” pro-
posals.
Section 7 of the Act gives employees a number of rights, be-
ginning with the right to form, join, or assist labor organiza-
tions. Respondent’s proposal directly denies employees this
fundamental statutory right by requiring the Union not to “ac-
cept into union membership any other individual” employed by
Respondent at one of its stores. Thus, it would clearly deny an
employee the Section 7 right to join a labor organization simply
because the employee was working for Respondent.
Moreover, the proposal does not relate to any term or condi-
tion of employment of any employee in the bargaining unit. To
the contrary, it explicitly applies to other individuals, meaning
Respondent’s employees outside the bargaining unit. This fact
alone—that it seeks to dictate conditions for individuals outside
the bargaining unit—suffices to make it a nonmandatory sub-
ject of bargaining.
Respondent argues that it is lawful to ask a Union to waive a
statutory right and that a no-strike clause provides a common
example of such a waiver. However, a no-strike clause seeks to
prevent the exercise of a particular right—the right to strike—
which has a direct, immediate, and substantial impact on Re-
spondent’s ability to operate its business. Moreover, a no-strike
clause does not exist in isolation but typically is part of a con-
tract which also includes a binding dispute resolution proce-
dure, so that employees have an alternative to striking to re-
solve a dispute during the term of the agreement.
Additionally, in the April 12, 2002 election, bargaining unit
employees chose the Union to represent them. Respondent
properly may ask the Union to waive these employees’ right to
strike because the employees designated the Union to act on
their behalf. However, Respondent’s intent and purpose pro-
posal did not ask the Union to waive a statutory right of em-
ployees it represented. Rather, agreement to this proposal
would affect the representation rights—or at least the represen-
tation opportunities—of employees who had not empowered
the Union to speak for them.
At its core, Respondent’s proposal seeks to discourage union
membership among its employees by preventing the Union
from accepting them. However, discouraging union member-
ship is never a legitimate business purpose.
Clearly, it would be an unfair labor practice for Respondent
to discourage union membership by discriminating, or threaten-
ing to discriminate, regarding terms and conditions of employ-
ment. Indeed, it would be an unfair labor practice even for
Respondent to ask employees about their union membership or
sympathies. Simply put, an employee’s union membership
status does not affect an employer’s business and is none of the
employer’s business.
Respondent’s “intent and purpose” proposal seeks to accom-
plish through bargaining what otherwise would be an unfair
labor practice: Preventing employees from joining the Union
should they choose to do so.
Certainly, Section 8(c) of the Act recognizes an employer’s
right to tell employees its opinions about unionization, even
though the opinions may be unfavorable, so long as the em-
ployer communicates no threat of reprisal or force or promise
of benefit. In other words, Section 8(c) protects a totally non-
coercive attempt to persuade an employee not to join a union.
Respondent’s proposal, however, is coercive. It would com-
pel the Union to reject an employee’s application for member-
ship even if the employee wanted to join. If a contract actually
included such a provision, I would conclude that this term inter-
fered with the exercise of Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act.
In other words, I conclude that Respondent’s proposal is nei-
ther a mandatory nor permissive subject of bargaining but is an
unlawful subject of bargaining. Respondent therefore demon-
strated bad faith by making it.
Respondent contends, however, that the proposal was per-
missive. Therefore, Respondent argues, it lawfully could make
the proposal so long as it did not insist upon the matter to im-
passe. Respondent further notes that it withdrew the proposal
on March 7, 2003.
In effect, Respondent’s argument amounts to “no harm, no
foul.” However, even were I to agree that Respondent’s pro-
posal was permissive rather than unlawful, I would reject Re-
spondent’s argument because Respondent’s proposal did cause
harm—foreseeable harm—to the collective-bargaining process.
As a general rule, the fact that a party has made a proposal
on a permissive subject of bargaining does not suggest any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD150
want of good faith, so long as the party did not insist upon such
a proposal to impasse. Additionally, a party does not manifest
bad faith by proposing that a union waive a statutory right, at
least so long as the party has a legitimate reason for seeking
the waiver. For example, an employer has a legitimate business
reason for proposing that a union waive its right to strike be-
cause a strike would affect the employer’s ability to do busi-
ness.
Respondent has no legitimate business reason for wanting to
interfere with an employee’s Section 7 right to join a union.
Merely making such a proposal—asking the Union to do some-
thing Respondent itself lawfully could not—reveals something
about Respondent’s state of mind, regardless of whether Re-
spondent insisted upon it to impasse.
Moreover, regardless of whether such a proposal is classified
as unlawful or permissive, it foreseeably would lengthen the
amount of time reasonably necessary for the parties to reach
agreement. No reasonable person, and certainly no one with
the labor relations experience and training of Respondent’s
chief negotiator, would expect any union to agree quickly to a
proposal requiring the union to reject applicants for member-
ship. Respondent clearly knew, or should have known, that its
proposal would lengthen the negotiating process considerably.
Moreover Respondent knew or should have known that this
proposal—involving at best only a permissive subject—would
consume time the parties otherwise could use discussing man-
datory subjects of bargaining. The proposal was, in effect, an
elephant at the water hole, sucking up time the parties needed
to reach agreement on essential contract terms.
Despite the predictable effect of this proposal on the amount
of time reasonably necessary for bargaining, Respondent re-
fused to schedule more meetings. This action clearly is incon-
sistent with good faith.
The Nonbargaining Unit Personnel Proposal
On July 18, 2002, Respondent’s negotiators offered a pro-
posal titled “Nonbargaining Unit Personnel.” It specified when
supervisors and others who were not bargaining unit employees
could be assigned to do bargaining unit work.
The Union did not agree to the proposal, instead expressing
concerns that it allowed supervisors and others too many oppor-
tunities to do bargaining unit work. Union Negotiator Bridges
told Respondent’s negotiators that when all of the provisions of
the proposal were considered together, Respondent could work
non-unit personnel “around the clock.” Respondent’s negotia-
tors denied that it was intended for that purpose.
The Union also objected that the proposal would allow con-
tractors to perform bargaining unit work. Thus, it differed from
proposals in some collective-bargaining agreements which
defined the term “nonbargaining unit personnel” more narrowly
to mean only supervisors.
The parties exchanged counterproposals but never reached
agreement on this matter.
The proposal concerns a mandatory subject of bargaining
and addresses legitimate business objectives. I do not infer bad
faith from either the content of the proposal or from Respon-
dent’s conduct in pursuing it.
The Shop Stewards Proposal
On July 25, 2002, Respondent gave the Union a proposal ti-
tled “Shop Stewards” which resulted in a great deal of discus-
sion. The more controversial provisions stated as follows:
1. A shop steward may not communicate with em-
ployees, the Union, or representatives of the Employer
concerning Union business on working time without first
obtaining the permission of the General Manager or his
designee. Such permission shall be granted in the Em-
ployer’s sole discretion.
2. A shop steward may not communicate with the Un-
ion office by telephone during his working time without
first obtaining the permission of the General Manager or
his designee. Such permission shall be granted in the Em-
ployer’s sole discretion.
3. The Union office may communicate with the shop
steward during working hours by first obtaining the per-
mission of the General Manager or his designee. Such
permission shall be granted in the Employer’s sole discre-
tion.
4. The authority of the shop steward so designated by
the Union shall be limited to, and shall not exceed, the fol-
lowing duties and activities:
a. The investigation and presentation of griev-
ances in accordance with the provisions of the collec-
tive bargaining agreement.
b. The collection of dues when authorized by ap-
propriate union action.
c. None of the foregoing activities may take
place during working time without the express permis-
sion of the Employer.
The Union protested that the clause was too restrictive and
could prevent a shop steward from representing an employee
during a disciplinary interview. Respondent asserted that a
shop steward would have time before and after his shift, and
during breaks, to perform union duties, but that during working
time, the employee should be doing the work for which he was
being paid.
The parties negotiated at some length concerning this pro-
posal, and at the November 13, 2002 bargaining session, Re-
spondent offered to delete the words “sole discretion” from the
proposal. However, the parties never reached agreement on a
“Shop Stewards” clause.
Respondent’s proposal concerns a mandatory subject of bar-
gaining. Respondent explained a legitimate business reason for
this proposal and discussed it at length during bargaining. I do
not infer bad faith either from the proposal itself or from Re-
spondent’s conduct in advancing it.
Dues Checkoff
Early in the bargaining, Respondent’s chief negotiator indi-
cated to the Union that a dues checkoff clause would be “no
problem.” However, Respondent did not agree to the Union’s
proposed dues checkoff clause and did not make a counterpro-
posal immediately. Respondent’s eventual counteroffer pro-
posed that the Union would reimburse it for the clerical time
GARDEN RIDGE MANAGEMENT 151
spent withholding and remitting union dues from employees’
paychecks.
The parties discussed this proposal at length but did not
reach an agreement on it. The proposal concerns a mandatory
subject of bargaining and Respondent articulated legitimate
business reasons for advancing it. I do not infer bad faith either
from the proposal itself or from Respondent’s conduct in advo-
cating it.
Layoff and Recall
On October 1, 2002, Respondent presented to the Union a
proposed contract article titled “Layoff and Recall.” Under the
proposal, when Respondent found it necessary to lay off em-
ployees, temporary employees would be laid off first. Then
employees would be laid off in the following order:
Employees on final warning laid off first;
Employees on written warning next;
Employees with worst attendance record next;
Employees with next worst attendance record next;
Employees with lowest performance evaluation score next;
Employees with the least skill, knowledge and ability.
The Union did not agree to this proposal. Although the par-
ties spent considerable time discussing the matter and exchang-
ing counterproposals, they never reached agreement.
The General Counsel contends that this proposal manifests
bad faith, in part, because subjective factors dictate who will be
laid off. This argument would require me to intrude into the
bargaining process and make a judgment—indeed a subjective
judgment—about the merits of the proposal.
In fact, the General Counsel’s argument would involve more
than one judgment about the contents of the proposal. First, it
would entail a judgment concerning whether the proposal really
did permit the subjective selection of individuals for layoff and,
second, it would require a judgment about whether subjectivity
was good or bad. Doing so would not be consistent with Board
precedent.
The proposal concerns a mandatory subject of bargaining.
Respondent did not refuse to explain the proposal or listen to
the Union’s arguments. Indeed, Respondent modified its pro-
posal after hearing and considering the Union’s position.
Therefore, I do not infer bad faith either from the proposal itself
or from Respondent’s conduct in advancing it.
Health & Welfare and Pension Proposals
The General Counsel argues that bad faith may be inferred,
in part, from the fact that Respondent waited more than 8
months before informing the Union that it did not want to par-
ticipate in the Union’s health & welfare and pension plans.
This argument does not invite me to judge the substance of a
proposal but rather to draw an inference from the timing.
In this negotiation, Respondent followed the common prac-
tice of addressing noneconomic issues first and saving the wage
and benefit issues for later in the bargaining. The record indi-
cates that the Union acquiesced in this bargaining procedure.
In view of this negotiating order, I do not draw an inference of
bad faith from the timing of Respondent’s announcements that
it did not want to agree to the Union’s health & welfare and
pension proposals.
On the other hand, Respondent’s unwillingness to meet more
frequently, even after bringing these issues to the table, does
indicate a degree of bad faith. Respondent retained as its chief
negotiator an experienced attorney, Christopher Antone, who is
certified as a specialist in labor law. Even someone without
this level of training and experience would recognize that when
the parties are in conflict about health & welfare and pension
provisions—two major subjects with significant economic con-
sequences—a lot of bargaining will be necessary.
The amount of time reasonably required for negotiations in-
creased when the conflict over these issues became apparent.
Yet Respondent did not increase the frequency of its meetings
with the Union. It’s failure to do so does indicate bad faith.
Management-Rights Proposal
On June 14, 2002, Respondent tendered to the Union a 4-
page proposal titled “Management Rights.” This proposal al-
lowed managers to make decisions and take actions concerning
many different aspects of the employment relationship, and
provided that the exercise of such rights would not be subject to
any dispute resolution procedure.
The parties spent considerable time discussing this proposal
and the Union’s counterproposal. Respondent modified its
initial proposal by deleting many of the provisions, including
the clause excluding such management decisions from the
grievance procedure. The parties tentatively agreed to the re-
vised management-rights proposal on September 19, 2002.
In modifying its management-rights proposal to obtain
agreement, Respondent told the Union that it might see some of
the deleted provisions later in other proposals Respondent
would be tendering to the Union. That proved to be the case.
At the next bargaining session, on October 1, 2002, Respon-
dent gave the Union four proposals. One of them concerned
contractors; the others were captioned “Technology Language
and Production Standards,” “Location of Operations,” and
“Employee Transfers.” As described in detail below, these
proposals revived language which Respondent had deleted from
its management-rights proposal at the last bargaining session.
In some instances, these proposals constituted a dramatic re-
buff to the Union. For example, on June 27, 2002, the Union
had proposed language for a contract article titled “Technology
Language and Production Standards.” This language would
bind Respondent to notify and bargain with the Union before
substantially changing the existing production standards and
quotas. It also included a pledge that Respondent would work
with the Union in implementing new technology and would
train employees to use this technology. Further, it provided
that Respondent would recognize seniority in the selection of
employees for training.
Respondent did not submit a counterproposal until October
1, 2002, when it offered a proposal titled “Employee Standards,
Evaluations, and Merit Increases.” This proposal stated, in its
entirety, as follows:
1. The Employer retains the exclusive right, authority
and discretion to determine employee production methods
and standards, including, but not limited to, quality, quan-
tity, efficiency, and safety standards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD152
2. The Employer retains the exclusive rights, authority
and discretion to evaluate employee performance based
upon the employment evaluation process currently in
place.
3. The Employer retains the right to continue granting
discretionary increases based on individual employee
merit.
This language, discussed further below, brought back to life
terms that Respondent had deleted from its management-rights
clause. Similarly, at the October 1, 2002 bargaining session
Respondent tendered a “Location of Operations” article which
also recycled language it earlier had deleted from its manage-
ment-rights proposal:
The Employer retains the sole and exclusive right, authority
and discretion to:
1. Determine the location of its operations;
2. Open, close, consolidate its operations;
3. Relocate operations in whole or in part; and
4. Separate its employees in connection with moving;
transfer of work; closing; selling; consolidation; or reloca-
tion of its operations.
Also on October 1, 2002, Respondent offered the Union a
proposal titled “Employee Transfers” which reincarnated lan-
guage which previously had been deleted from the Respon-
dent’s previous management-rights proposal:
1. The Employer retains the exclusive right, authority
and discretion to transfer and/or reassign employees from
one job, department, or work location to another.
2. The transfers and/or reassignments may be made on
a regular, temporary, or intermittent basis.
Respondent’s original management-rights proposal also had
contained language permitting it to employ contractors without
limitation. The Union objected to that proposal and Respon-
dent removed it. However, Respondent then included similar
language in another proposal. In his testimony, Respondent’s
chief negotiator, Christopher Antone, admitted the repackaging:
Q. And, again, this contractor language was taken out
of the management rights clause. Correct?
A. Yes, it was.
Q. And you put everyone on notice that they might see
it again later in negotiations.
A. Absolutely.
(Emphasis added.) Respondent attaches importance to the fact
it told the union negotiators that they “might see” the deleted
management-rights language again. However, giving the Un-
ion this clue does not change either what the Respondent did or
why.
The Union objected to Respondent’s original management
rights-proposal because this provision would have given Re-
spondent plenary control over all working conditions. After
much bargaining, Respondent seemed to back off of this de-
mand for absolute power and the union negotiators must surely
have felt that they were making some progress at last.
On September 19, 2002, when Respondent tentatively agreed
with the Union on the modified management-rights clause,
from which the objectionable language had been stripped, Re-
spondent’s negotiators did not state plainly that Respondent’s
apparent concession was illusory and that signing off on the
clause therefore meant nothing. Instead, Respondent’s chief
negotiator merely stated, coyly, that the Union might see some
of the language again.
This veiled remark did not tip Respondent’s hand concerning
when it planned to reintroduce the deleted language and like-
wise it did not disclose the full extent to which Respondent
intended to resurrect the language it supposedly had buried.
However, the words do reveal the Respondent’s mindset on
September 19, 2002, when it announced its “concession” and
went through the motions of signing the management-rights
clause. At that very time, Respondent already knew that it soon
would undo the progress towards a contract which the parties
seemingly had made.
During closing argument, Respondent emphasized that it had
reached tentative agreement with the Union on a large number
of contract articles. This large number of tentative agreements,
it contends, demonstrates that it was bargaining in good faith.
To the contrary, based upon Respondent’s entire conduct, I
conclude that it was collecting pieces of paper marked “T.A.”
to use as evidence of its good faith but that these documents
have little probative value. Respondent’s conduct concerning
the management-rights clause demonstrates that regardless of
superficial agreement on the wording, it had no intention of
resolving the underlying management-rights issue.
The bargaining process may be regarded as the mutual effort
to resolve disputes over particular terms of employment, and
then memorializing these understandings in a document. The
written words are important because they preserve the meeting
of the minds which the parties reached. When labor negotiators
mark a proposal “T.A.”—tentatively agreed—they are signify-
ing, in effect, that they have resolved the issue which divided
them.
On September 19, 2002, Respondent went through the mo-
tions of marking the revised management-rights clause tenta-
tively agreed, but it did so with mental reservations or purpose
of evasion. This secret intent revealed itself when Respondent
told the Union that it “might be seeing” some of the same lan-
guage again. Those words are almost as cryptic as Nostrada-
mus and hardly conveyed what Respondent had in mind. How-
ever, at the very next meeting, when Respondent offered the
same controversial deleted language in four new proposals, its
hypocrisy at the September 19 bargaining session became un-
mistakable.
Scratching through objectionable language and going
through the pretense of marking the document “tentatively
agreed,” while secretly planning to introduce the same language
at the next bargaining session, is not consistent with good faith.
Moreover, for reasons discussed further below, I conclude that
Respondent’s actions on September 19 and October 1, 2002,
were not isolated aberrations but part of a strategy timed to
have great psychological impact on the Union and the bargain-
ing unit employees.
To summarize, although I do not infer bad faith from the
content of Respondent’s management-rights proposals, I con-
clude that the way Respondent went through the motions of
GARDEN RIDGE MANAGEMENT 153
making a concession, without intending to give up anything,
does indicate an intent to bargain without reaching agreement.
Additionally, the way Respondent continued to advance pro-
posals which it knew the Union disliked, while at the same time
refusing the Union’s requests for additional bargaining ses-
sions, strongly indicates that it was not interested in reaching
agreement.
Indeed, the Union’s requests for more bargaining sessions
became more urgent right after the October 1, 2002 bargaining
session. At the next meeting, on October 10, 2002, Union Ne-
gotiator Ellison asked Respondent’s negotiators if they could
stay and bargain the next day. Respondent declined.
Later in this same meeting, the Union’s chief negotiator said
that they needed to set more meeting dates because they were
getting behind. Rather than accommodating this request, Re-
spondent adhered to the existing schedule. Respondent’s chief
negotiator told the union negotiators that they would “see you
on October 29th.”
At the October 29th meeting, the Union again pressed Re-
spondent for more meeting dates, specifically, for negotiations
on consecutive days. Respondent’s chief negotiator denied this
request, saying that he “enjoyed taking time off to contemplate
what was done.”
Those words—that he enjoyed taking time to contemplate
what was done—acquire additional meaning in the light of
what really was done: Respondent had made the negotiating
process foreseeably more time-consuming by resurrecting de-
leted proposals, but then refused to meet the additional times
that its tactic had necessitated.
As discussed above, Section 8(d) requires a party to meet at
reasonable times. The reasonableness of a given meeting
schedule depends on the negotiating task facing the parties; the
more issues on the agenda, the more time reasonably will be
necessary to resolve them.
Respondent placed four more issues on the agenda by ex-
porting the deleted management-rights language into other
proposals which it then presented to the Union for negotiation.
Having thus extended the agenda, it also had a duty to increase
the frequency of bargaining sessions.
Respondent’s refusal to meet more often certainly constitutes
evidence of bad faith, but it has an even greater significance. In
addition to being evidence that Respondent failed to confer in
good faith, this refusal to schedule enough meetings, in and of
itself, also constitutes a breech of the 8(d) duty to meet at rea-
sonable times.
Evidentiary Significance of Respondent’s Proposals
To summarize, I have not inferred bad faith from the content
of any of Respondent’s proposals except for the “Intent and
Purpose” language which sought a promise from the Union that
it would not accept into membership any of Respondent’s em-
ployees who were not in the bargaining unit. Because this pro-
posal would deny employees the freedom to join a labor or-
ganization, a right explicitly guaranteed by Section 7 of the
Act, it is appropriate for the Board to take a closer-than-usual
look.
As discussed above, this proposal applies to employees out-
side the bargaining unit and concerns a nonmandatory subject
of bargaining, possibly unlawful and permissive at best. Unlike
a no-strike clause, aimed at preventing a work stoppage during
the term of the agreement, Respondent’s intent and purpose
language seeks to bar its other employees from joining a par-
ticular labor organization, which is not a legitimate business
purpose.
By advancing a proposal seeking an objective repugnant to
the Act, Respondent has raised questions about its motivation
and good faith. Additionally, by pressing this nonmandatory
subject of bargaining while denying the Union’s request for
more negotiating sessions, Respondent denied the Union suffi-
cient time to bargain over the mandatory subjects. This, too, is
evidence of bad faith.
Respondent also demonstrated bad faith by resurrecting
terms deleted from its management-rights language, tendering
these deleted terms to the Union as new proposals, and then
denying the Union’s repeated requests for more negotiating
sessions.
By these actions, and more generally by failing to increase
the frequency of its bargaining sessions, Respondent breached
its 8(d) duty to meet with the Union at reasonable times. This
failure independently violated Section 8(a)(5) of the Act. It
also constitutes evidence of bad faith which may be considered
in connection with the surface bargaining allegation.
Delay In Making Wage Proposal
Although bargaining began May 15, 2002, Respondent did
not propose any specific change in employee wage rates until
the last meeting, on April 7, 2003. At this last negotiating ses-
sion, Respondent proposed an across-the-board wage increase
of 5-cents-per-hour. The General Counsel asserts that Respon-
dent’s almost 11-month delay in making a wage proposal indi-
cates bad faith.
(To prevent confusion arising from the titles of proposals,
the following may be noted: On January 30, 2003, the parties
tentatively agreed on a proposed contract article titled “Wage
Rate and Classifications,” but this term did not include any
actual wage rates.)
It is difficult to ignore the psychological impact that this ac-
tion predictably would have on bargaining unit employees who
had recently selected a union and were awaiting the outcome of
the collective-bargaining process. For almost a year, they had
been in suspense about what Respondent would offer, and the
suspense continued to build day-by-day. When employees
asked their union leaders about management’s position on a
wage increase, the union negotiators only could reply, “I don’t
know. They haven’t offered anything yet.” This answer, hon-
est as it was, made the Union appear increasingly ineffectual.
Moreover, at the start of bargaining, the Union had proposed
a system which would eliminate wage inequalities and, at the
same time, provide one-time bonuses for the higher-paid work-
ers and sizable wage increases for those on the other end of the
scale. The resulting elevated hopes crashed with considerable
impact when Respondent, after 11 months, offered only 5-
cents-per-hour more. Quite likely, the resulting disappointment
contributed to employee disaffection with the Union.
However, Respondent did not cause employee hopes to be
elevated unrealistically. Nothing in the record indicates that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD154
Respondent gave employees any reason to believe it would
offer a generous wage increase.
Additionally, I cannot infer automatically that bad faith mo-
tivated Respondent’s delay in offering a wage proposal merely
because the delay had a psychological impact—perhaps a fore-
seeable psychological impact—on employee support for the
Union. The law does not require a party to forswear an other-
wise lawful bargaining tactic because it would be likely to
make employees unhappy with their representative.
Indeed, it is just as legitimate for an employer to seek a con-
tract holding down wages as it is legitimate for a union to see a
contract increasing them. Yet when a company achieves this
goal, a likely result is employee dissatisfaction with their bar-
gaining representative. The employer’s negotiators do not have
an obligation to bargain any less effectively simply because
their success might reflect poorly on the union.
On the other hand, an employer’s negotiators do not act in
good faith when they fashion bargaining strategy and proposals
to foment employee disaffection rather than to reach an agree-
ment favorable to their side. To determine the Respondent’s
intention, I must consider the reasons its negotiators offered for
the timing of its wage proposal.
Respondent argues that it is typical during negotiations to de-
fer bargaining on “economic” terms—wages and benefits—
until after the parties have reached agreement on the “none-
conomic” or “language” provisions. Negotiators adopt such a
strategy if they believe that it will be easier to reach agreement
on these “noneconomic” items than on the tougher wage and
benefit issues. By reaching agreement on the less contentious
provisions first, they hope to build up “momentum”—a habit of
finding common ground—which can carry them through the
more difficult conflicts on monetary terms. Respondent asserts
that its use of such a common bargaining procedure does not
evidence bad faith.
Respondent further argues that even so-called “language” is-
sues have economic costs to the employer. Understandably, a
negotiator might want to get a firm idea of the costs associated
with the “language” provisions before deciding what wage
offer to place on the bargaining table.
In cross-examining the Union’s chief negotiator, Robert
Bridges, Respondent addressed both these points:
Q. Could it be that language issues like overtime and
shop stewards taking time off from work and other lan-
guage proposals could impact on the economics of the fa-
cility?
A. That’s possible, yes.
Q. And have you ever heard that it’s a usual practice
to bargain economics after language has been agreed to?
Have you ever heard of that?
A. I haven’t heard it, but I know it’s sometimes—it’s
usually practiced. . . .
Bridges’ testimony thus supports a conclusion that Respon-
dent was bargaining in an ordinary manner and that, accord-
ingly, bad faith should not be inferred from its delay in making
a wage proposal. Bridges also acknowledged that during nego-
tiations, Respondent attributed the delay in presenting a wage
proposal to uncertainties about operating costs once Respon-
dent’s new warehouse computer system went online.
Moreover, even good-faith collective bargaining involves
more than a little game playing. Just as negotiators may some-
times begin with a “lowball” proposal offered in totally good
faith—a tactic to make the end point of bargaining closer to
their side than the other—a party also may use the timing of
proposals to gain, ultimately, a more favorable deal.
In sum, a party may delay making a wage proposal for a
number of different reasons. Some of these reasons quite
clearly are consistent with good faith. Therefore, in the present
case, any inference drawn solely from the fact of delay would
be based on speculation rather than logic, and might be incor-
rect.
As discussed above, Respondent did demonstrate bad faith in
other ways. However, I am reluctant to conclude that every-
thing Respondent did manifested bad faith merely because
some of its actions did. Logic would not require such an as-
sumption and fairness would not favor it. Therefore, I draw no
inference of bad faith from Respondent’s delay in offering a
wage proposal.
“Dilatory” Bargaining Tactics
In the discussion above, I have not used the term “dilatory
bargaining tactics” to describe Respondent’s practice of offer-
ing time-consuming bargaining proposals and then rejecting the
Union’s requests for additional meetings to discuss them. Use
of that phrase could draw attention away from the true issues in
this proceeding and into an academic discussion of what consti-
tutes a “dilatory bargaining tactic” as the Board uses that term
of art. See, e.g., Rocky Mountain Hospital, 289 NLRB 1347
(1988) (The Board found it unnecessary to pass on judge’s
finding that the respondent also violated Section 8(a)(5) by
engaging in dilatory bargaining tactics.).
Typically, a “dilatory bargaining tactics” case involves a
party repeatedly agreeing to bargain on certain dates and then
canceling the scheduled meetings. Such a pattern is fairly ob-
vious, but Respondent’s conduct is more subtle.
In general (and with one exception), Respondent did not
cancel scheduled meetings. Instead, it proposed a meeting
schedule which might be reasonable if the parties faced only
simple issues, for example, if the parties were bargaining to
modify an existing contract and had to discuss only a handful of
items. Respondent then made the negotiating process more
difficult by offering proposals which predictably would gener-
ate controversy, most notably, its four proposals resurrecting
the language it previously had deleted from the management
rights-clause.
Respondent’s further action—refusing the Union’s repeated
requests to meet more often—ground the negotiating process to
a virtual halt. Because Respondent did not demonstrate a pat-
tern of agreeing to, and then canceling negotiating sessions, it
could argue that it did not engage in “dilatory bargaining tac-
tics.” However, Respondent’s more subtle maneuvers frus-
trated the bargaining process every bit as well.
Whether or not Respondent’s conduct is called a “dilatory
bargaining tactic,” it is inconsistent with the requirements of
good faith.
GARDEN RIDGE MANAGEMENT 155
Other Evidence of Bad Faith
The former general manager of Respondent’s Dallas distri-
bution center, David Shirk, testified, over Respondent’s objec-
tion, as a rebuttal witness. For the reasons discussed above, I
have denied Respondent’s motion to strike this testimony.
Shirk described a meeting in his office which took place in
late March or early April 12, 2002. Present were General Man-
ager Shirk, Senior Vice President Dan Ferguson (Shirk’s im-
mediate superior), Human Resources Manager Chris Baker, and
Human Resources Vice President Kevin Rutherford. During
their conversation, the upcoming representation election came
up.
According to Shirk, Human Resources Manager Baker asked
“what the environment of the distribution center would look
like” if the Union gained certification. Vice President Ruther-
ford replied “that we would basically tie the union up at the
bargaining table and we would not come to an agreement.”
Rutherford, who no longer works for Respondent, did not
testify. Neither did Baker or Ferguson. Shirk gave the only
testimony concerning this statement and it is uncontradicted.
However, a judge need not credit uncontradicted testimony if
there are reasons to doubt its reliability, so I must make a credi-
bility finding.
Respondent discharged Shirk, so there is a possibility that an
urge to get even might color his testimony. However, observ-
ing Shirk as a witness, I did not form the opinion that he was
testifying out of vengeance or that negative feelings about Re-
spondent affected his testimony.
In cross-examination, Respondent referred to a transcript of
Shirk’s pretrial deposition. This deposition recounted an ex-
change between Baker and Ferguson, but it is not entirely clear
from the record that this question and answer were part of the
same conversation that Shirk described on direct examination,
summarized above.
Shirk admitted that in the deposition, he had stated that
Baker asked something to the effect of “what do we do if the
Union comes in” and Ferguson had answered “You know, if the
Union gets in, the Union gets in, we just go on, you know, with
our business just like we do every day.”
Shirk also admitted that in the deposition he had quoted Fer-
guson as saying that “there’s all kinds of things that we could
do, and that, you know, the bargaining would go on and the
union is not going to get anything that we don’t want to give
them.”
This testimony about what Ferguson said does not directly
contradict Shirk’s testimony on direct examination about what
Rutherford said. Because the deposition is not in evidence, it is
not possible to determine whether it also recounts the words
which Shirk attributed to Rutherford, namely, that Respondent
basically would tie the Union up at the bargaining table and not
come to an agreement.
As vice president of human resources, Rutherford was in a
better position than Ferguson to know about Respondent’s bar-
gaining plans. Rather than specializing in labor relations, Fer-
guson was a “line manager” whose responsibilities included the
operation of the distribution center, not negotiations with un-
ions. Thus, his comment that “we just go on, you know, with
our business just like we do every do [sic]” probably refers to
how the Union’s presence would affect the operation of the
distribution center rather than to Respondent’s strategy in col-
lective bargaining. Ferguson’s message, in essence, was that
management would continue to operate the distribution center
in the same way even should the Union win the election.
To the extent that Ferguson’s comments pertain to Respon-
dent’s collective-bargaining strategy, they are consistent with
the words Shirk attributed to Rutherford. Thus, his remark that
“there’s all kinds of things that we could do” does not contra-
dict Rutherford’s statement that Respondent would tie the Un-
ion up at the bargaining table.
Similarly, Ferguson’s observation that “the bargaining would
go on and the union is not going to get anything that we don’t
want to give them” does not contradict Rutherford’s comment
that the Union would not get a contract. If anything, Fergu-
son’s remark would be consistent with a finding that Respon-
dent entered the bargaining process with an intent not to com-
promise.
The cross-examination of Shirk with his pretrial deposition
did not disclose any significant discrepancy between his testi-
mony in the hearing and his testimony when deposed. Based
on my observations of Shirk’s demeanor, I credit his testimony
and find that both Rutherford and Ferguson made the state-
ments Shirk attributed to them.
During closing argument, Respondent’s counsel, Christopher
Antone, addressed the significance of the statement which
Shirk attributed to Ferguson. The transcript records the follow-
ing: “God bless Dan Ferguson. Do you know what he did? He
stayed to the law.” (Antone actually said that Ferguson stated,
rather than stayed to, the law, and the transcript is corrected
accordingly.)
However, it is not 100 percent correct to say either that Fer-
guson stated the law or that he stayed to it. Shirk’s credited
testimony establishes that Ferguson said that the Union would
not “get anything we don’t want to give them.” That remark is
not quite the same as Section 8(d)’s provision that the duty to
bargain in good faith does not require agreement to a proposal
or making a concession.
Even though the Act does not require either party to “give
in” on any particular point, the duty to bargain in good faith
does contemplate that the parties will be willing to compromise
and engage in give–and–take. An inflexible “my way or none”
attitude, signifying a willingness to reach agreement only if the
other side capitulates on every point, is hardly consistent with
good faith bargaining.
Ferguson’s comment that the Union would not receive any-
thing that the Respondent did not want to give suggests such an
unyielding attitude. His remark that there were many things the
Respondent could do at least hints at the tactics of delay dem-
onstrated by Respondent’s refusal to meet often enough to
make progress on its proposals.
In sum, Rutherford’s statement that Respondent would tie
the Union up in negotiations, resulting in no contract, provides
evidence that Respondent bargained in bad faith. Ferguson’s
remarks do not negate that evidence. Even though Respon-
dent’s managers made such statements before the election and
certification of the Union, such evidence still may be consid-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD156
ered in determining Respondent’s good faith, or lack of it, at
the bargaining table. See Gadsden Tool, Inc., 327 NLRB 164
(1998).
Respondent’s Overall Conduct
In a surface bargaining case, the Board determines intent
based upon all of Respondent’s conduct, both at and away from
the negotiating table. Therefore, it is appropriate to take a look
at the forest as well as the trees.
Respondent avoided, I believe carefully avoided, engaging in
overt conduct which the Board has condemned in prior cases as
manifestations of bad faith. In particular, it never communi-
cated with words that collective bargaining would be futile but
it conveyed that message through its actions. At times, it ap-
peared to be engaging in subtle psychological warfare with the
Union.
For example, it went through the motions of deleting lan-
guage from its management-rights clause and signing off on the
revised version, while dropping the merest of hints that its ac-
tions should not be taken at face value. Its oblique remark that
the Union “might be seeing” some of the same language ap-
pears calculated to defend against a later accusation that it had
engaged in regressive bargaining. However, it also served a
psychological purpose.
If Respondent had wanted to be candid with the Union, it
could have said plainly that the tentative agreement on man-
agement rights—reached after considerable bargaining—really
meant nothing because Respondent intended to revive the de-
leted language at the next bargaining session. That kind of
candor, however, would have reduced the anticipated psycho-
logical impact produced later when Respondent offered the
Union fresh proposals containing the stale rejected language.
Already, and at great length, the Union had explained to Re-
spondent its objections to this language, which would allow
Respondent to do pretty much as it pleased without having to
bargain about it first. When Respondent’s negotiator drew a
line through this language and gave it to the Union thus modi-
fied, it symbolized more than a compromise on this one pro-
posal. Because deletion of these terms represented Respon-
dent’s willingness to settle for less than absolute control, doing
so signaled a new willingness to work with the Union.
That act raised hope for the bargaining process. When Re-
spondent resurrected the same “absolute control” language at
the next meeting, it dashed those hopes. Obviously, Respon-
dent could not come out and say “bargaining is futile” without
being caught in a violation of the Act. However, it conveyed
this same discouraging message by leading the union negotia-
tors to believe they had made some hard-earned progress and
then promptly demonstrating that all this effort changed noth-
ing. Fans of the “Peanuts” comic strip will recognize the Lucy-
and-football pattern here, but without the humor.
When Respondent proposed that the Union agree to reject
the membership applications of Respondent’s employees, it
similarly communicated its hostility to dealing with the Union.
Maybe it had to put up with the Union for this one bargaining
unit, but it wanted to make absolutely sure that kind of thing
never happened again.
Respondent’s experienced negotiators clearly would know
that this proposal had no chance of acceptance. Obviously, no
labor organization could agree to become an employer’s surro-
gate in preventing employees from joining a union. Taking up
limited bargaining time to advocate this proposal, which so
distorts the Union’s appropriate role, demonstrates no desire to
address and resolve the immediate issues facing the parties.
Both sides would recognize this proposal as a time waster.
The proposal also revealed Respondent’s hostility to the Union,
thus indicating why Respondent was intent on wasting time.
By refusing the Union’s increasingly urgent requests for
more bargaining sessions, Respondent not only slowed down
the process but also conveyed the discouraging message that
bargaining was futile.
Respondent’s Defenses
Respondent contends that three legitimate, business-related
goals—and not bad faith—motivated its actions in bargaining.
Respondent communicated these goals repeatedly to the Union
during negotiations. For example, Union Chief Negotiator
Bridges testified that Respondent’s Chief Negotiator Antone
said “he had three goals: to maintain the [Respondent’s] ability
to manage the facility, to preserve work time for work, and to
recognize performance.”
All of these goals arise from lawful business objectives and
pursuing them, Respondent argues, does not manifest bad faith.
Moreover, Respondent never refused to listen to the Union or
reply to its concerns. Additionally, Respondent took pains
never to act unilaterally; it consulted the Union before making
any change in the unit employees’ working conditions.
Further, Respondent argues that bargaining was particularly
difficult, and slow to produce results, because of philosophical
differences between the Respondent and the Union. (To pre-
vent confusion, it should be noted that the term “philosophical
differences,” as used here, does not mean the same thing as
“philosophical reasons,” a phrase sometimes offered by an
employer to explain its rejection of a union security proposal.
By “philosophical differences,” I mean that the two sets of
negotiators interpreted facts from distinct perspectives and
reasoned from premises and assumptions different enough to
make agreement—and sometimes even communication—more
difficult.)
The parties’ disagreement over “layoff and recall” proposals
illustrates Respondent’s argument that philosophical differ-
ences, not bad faith, frustrated agreement. Respondent initially
proposed that employees be chosen for layoff in an order, dis-
cussed above, which it believed would assure that the best em-
ployees would remain at work and the worst would go. The
Union, concerned that supervisors were playing favorites,
strongly objected that the proposed system selected employees
for layoff based on purely subjective factors.
The Union urged a system based on qualifications and sen-
iority and its use of the term “qualifications” certainly sug-
gested that some middle proposal could accommodate both the
Union’s greater emphasis on seniority and the Respondent’s
focus on productivity. However, the Union defined “qualifica-
tions” narrowly, to mean how many orders an employee could
GARDEN RIDGE MANAGEMENT 157
pull in an hour, but without regard to attendance or disciplinary
records.
So the Respondent is quite correct in asserting that differ-
ences of attitude and belief contributed to the slow progress of
the bargaining. However, these factors were not the proximate
cause. Negotiations slowed to a halt not because the parties
had differences but because Respondent would not meet fre-
quently enough to resolve them.
Respondent certainly had the right to offer and press propos-
als which pertained to its legitimate business interests even
though these proposals collided with the Union’s philosophy
and world view. I draw no adverse inference from Respon-
dent’s tendering of such tough proposals concerning mandatory
subjects of bargaining because, when advanced and discussed
in good faith, challenging proposals can lead to creative com-
promises.
However, I do infer bad faith from the combination of Re-
spondent’s willingness to place jaw-dropping proposals on the
table and its unwillingness to meet reasonably often to talk
about them. This inference of bad faith draws additional
strength from the cavalier manner in which Respondent’s chief
negotiator dismissed the Union’s requests for more bargaining
sessions—by saying that he enjoyed taking time to contemplate
what had been done—without ever giving the Union a legiti-
mate explanation for its unwillingness to meet.
Respondent’s assertion that it advanced tough proposals for
legitimate business reasons and sincerely sought the Union’s
agreement, would be more persuasive had it not rejected the
Union’s repeated requests for more meetings. If Respondent
truly had been bargaining to reach agreement rather than frus-
trate it, Respondent would have welcomed the opportunity for
more time to talk about the merits of its proposals.
Indeed, a party’s willingness to talk about its proposal, even
ad nauseam if necessary, provides an important clue distin-
guishing the hard bargainer from the surface bargainer. The
proposals offered by the hard bargainer and the surface bar-
gainer may look very much alike and in some instances may be
identical. However, the hard bargainer, truly wanting the other
side to agree to his proposal or something as much like it as
possible, will seize every opportunity to talk about it in the
hope that persistence will wear down resistance.
The surface bargainer, on the other hand, does not offer the
proposal in the hope of reaching agreement but for the contrary
reason, expecting the other side to balk. See, e.g., Gadsden
Tool, Inc., above, in which a union surprised an employer by
agreeing to a proposed contract the employer had considered
too unpleasant to swallow. When the employer in that case
backed away from the very agreement it had proposed, the
Board found bargaining in bad faith.
It involves only mild exaggeration to state that when a nego-
tiator offers an obviously difficult proposal, one indication of
his good faith is how much the negotiator acts like the single-
minded telemarketer who calls right when supper is ready.
Such a telemarketer is bent on selling you something and to do
that he must keep the conversation going; he won’t shut up
until you hang up. Likewise, if a good-faith negotiator recog-
nizes that his proposal is about as easy to sell as the telemar-
keter’s juice machine that also cleans carpet, he won’t stop
extolling it until the other side says “all right, already, where do
I sign?”
The surface bargainer, however, doesn’t offer a difficult pro-
posal in the hope that he can persuade the other side to agree.
In fact, agreement is the last thing he wants, and as discussion
increases, so does the risk of agreement. Therefore, the surface
bargainer may claim that his proposal is important but will talk
about it only for a bare minimum amount of time, just long
enough to sigh, with pretended disappointment, “Well, I tried.”
In the present case, Respondent certainly knew that the Un-
ion would not be receptive to the four proposals it tendered on
October 1, 2002, because the Union refused to agree to the very
same language when it was part of Respondent’s proposed
management-rights clause. Respondent knew that a lot more
talking would be necessary to persuade the Union to accept
language it had just rejected. In such circumstances, Respon-
dent’s refusal to schedule more meetings indicates that it was
indifferent to the success of its own proposals.
In oral argument, Respondent described the conduct of the
respondent in Wisconsin Steel Industries, 318 NLRB 212
(1995), and asserted that its own conduct was different in every
way. Respondent is absolutely correct to state that its conduct
is not the same as that of the respondent in Wisconsin Steel.
Indeed, the conduct at issue in Wisconsin Steel is so different
from the conduct at issue here that this precedent is inapposite.
However, the fact that Respondent’s conduct was different does
not mean that it was lawful.
Further, it is true that, as the Respondent contends, at least
some of the delay in bargaining arose from a matter the Union
raised. It wanted a particular employee included within the
bargaining unit, notwithstanding that Respondent had classified
her as a receptionist, a position outside the unit. Thus, Respon-
dent asserts, it spent a significant amount of negotiating time
discussing this employee’s unit placement, a nonmandatory
subject of bargaining. Moreover, Respondent ultimately found
the employee a suitable position within the bargaining unit, and
thus resolved the matter to the Union’s satisfaction.
The record indicates that the Union raised the matter of the
receptionist’s unit placement at the first bargaining session and
that the parties spent most of the time discussing it early in the
negotiating process. On the other hand, the effect of Respon-
dent’s bargaining proposals on the pace of negotiations did not
become manifest until later. Indeed, Respondent did not repro-
pose the rejected management-rights language, and then refuse
to bargain more often, until October 2002.
More fundamentally, David Shirk’s credited testimony estab-
lishes that Respondent began formulating its plan to “tie up”
the Union in bargaining even before negotiations started. Thus,
any delay resulting from the Union’s desire to discuss the re-
ceptionist’s unit placement is merely incidental. The Union’s
action did not frustrate the bargaining process.
Respondent also points to a number of actions it took which
manifest good faith. For example it resolved the conflict con-
cerning the receptionist by allowing her to transfer to a job
within the bargaining unit. Additionally, it notified and bar-
gained with the Union before implementing merit increases and
before laying off employees. Such actions, Respondent con-
tends, demonstrate its good faith.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD158
However, the General Counsel does not allege that Respon-
dent violated Section 8(a)(5) in every way possible. The fact
that Respondent did not break the law in every way does not
mean that it didn’t break the law in some way.
Additionally, Respondent’s overall purpose would not be
served if it were too profligate in violating Section 8(a)(5).
Respondent’s experienced counsel clearly knew that the Board
looks at a party’s overall conduct to determine whether it bar-
gained in good faith, so it would benefit Respondent tactically
to follow the law in all ways that did not interfere with the pri-
mary objective of preventing agreement. Therefore, I reject the
argument that Respondent’s incidental displays of good faith
refute the evidence of violation.
During oral argument, Respondent called attention to the col-
lective-bargaining agreement the Union had entered in April
2001 with an employer called Minnesota Corn Processors.
Respondent first became aware of this contract when the Union
provided it during the hearing pursuant to Respondent’s sub-
poena.
Respondent points to provisions in this agreement which ap-
pear to be less favorable to the Union than the terms of Re-
spondent’s proposals on topics such as management rights and
layoff of employees. Respondent argues that in view of the
Union’s willingness to agree to such language, no bad faith
should be inferred from its own bargaining proposals.
As discussed above, I have not drawn any inference of bad
faith from any of Respondent’s proposals except the one which
would require the Union to reject membership applications
from Respondent’s employees. Because I have not inferred bad
faith from any proposal except this one, the Respondent’s ar-
gument is largely unnecessary.
The Union’s contract with Minnesota Corn Processors does
not include a provision similar to the one which, I concluded,
provided an indication of bad faith. Specifically, the Minnesota
Corn Processors contract does not require the Union to reject
any employee from membership.
Even if Minnesota Corn Processors contract had included
such a term, the fact that the Union had agreed to such language
would not establish that the employer had proposed in it good
faith. The Board’s decision in Gadsden Tool, above, provides
an illustration. Therein, an employer proposed extreme terms
as part of its strategy to bargain in bad faith. The fact that the
union finally agreed to the onerous contract proposal did not
change the employer’s bad faith into good faith.
Additionally, while it was negotiating with the Union, Re-
spondent was unaware of the Union’s contract with Minnesota
Corn Processors. Because Respondent did not know about the
Union’s willingness to agree to certain proposals, that informa-
tion could not have affected Respondent’s conduct or motiva-
tion.
Moreover, the record does not disclose how long it took
Minnesota Corn Processors and the Union to reach this agree-
ment. No evidence indicates either the length or duration of
such bargaining sessions. The contract itself provides no clues
about some key missing facts: When Minnesota Corn Proces-
sors proposed these terms, did the Union request additional
bargaining sessions? If so, did that employer grant the Union’s
request?
For all of these reasons, I reject Respondent’s arguments
concerning the significance of the agreement between the Un-
ion and Minnesota Corn Processors.
Conclusions About Respondent’s Intent
Respondent clearly fell short of its duty to meet with the Un-
ion at reasonable times. It repeatedly refused the Union’s re-
quests for more bargaining sessions even after it had tendered
proposals foreseeably requiring much discussion. Respon-
dent’s failure to meet at reasonable times, as required by Sec-
tion 8(d), constitutes a violation of Section 8(a)(5). Addition-
ally, it also provides evidence that Respondent lacked good
faith when it did confer with the Union and instead bargained
with a fixed intent not to reach an agreement.
Respondent’s failure to meet at reasonable times is not the
only evidence of bad faith. Rather, in concluding that Respon-
dent failed to confer with the Union in good faith, I rely on all
of the following factors:
Repeatedly, Respondent proposed contract terms that
foreseeably would lengthen the bargaining process, which
was its right, but refused to meet often enough to engage
in a reasonable amount of bargaining over those proposals,
which was its responsibility.
Respondent proposed a contract provision which
would diminish the Section 7 rights of nonunit employees,
by prohibiting the Union from accepting them into mem-
bership. Although this proposal, concerning a nonmanda-
tory subject of bargaining, increased the amount of meet-
ing time reasonably necessary for negotiations, Respon-
dent refused to agree to more frequent bargaining sessions.
At the very time Respondent deleted language from its
management-rights proposal, it knew it would place the
same language in new proposals it would soon give the
Union. This action demonstrated Respondent’s intention
of going through the motions of bargaining while avoiding
agreement.
The statement which Respondent’s Vice president
Rutherford made in Shirk’s presence further indicates that
Respondent did not enter negotiations with an intention of
reaching agreement.
Respondent’s Withdrawal of Recognition
Respondent has admitted that on April 25, 2003, it withdrew
recognition from the Union. Respondent predicated this with-
drawal on receipt of a petition indicating that a majority of
bargaining unit employees no longer wanted the Union to rep-
resent them.
Respondent’s failure to negotiate with the Union in good
faith produced or greatly contributed to employee disaffection
with the Union and led directly to circulation of the petition.
Under such circumstances, Respondent lawfully could not
withdraw recognition from the Union. See Lee Lumber &
Building Material Corp., above.
CONCLUSIONS OF LAW
1. Respondent, Garden Ridge Management, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
GARDEN RIDGE MANAGEMENT 159
2. Charging Party, General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with the International
Brotherhood of Teamsters, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times since the Board’s certification of April 22,
2003, pursuant to Section 9(a) of the Act, the Charging Party
has been and remains the exclusive bargaining representative of
Respondent’s employees in the unit described below, which is
an appropriate unit for collective-bargaining purposes:
All regular employees including putaways, transporters, load-
ers, unloaders, stock coordinators, checkers, order pullers,
pickers, yard hosslers, inventory control, shipping lead,
checker lead, plant clericals, and receiving schedulers em-
ployed by the Employer at its facility at 3700 Pinnacle Point
#200, Dallas, Texas, EXCLUDING all other employees in-
cluding office clericals, management, guards and supervisors
as defined in the Act.
4. Since May 15, 2002, Respondent has violated and contin-
ues to violate Section 8(a)(5) and (1) of the Act by failing to
meet with the Charging Party at reasonable times, as required
by Section 8(d) of the Act.
5. Since May 15, 2002, Respondent has violated and contin-
ues to violate Section 8(a)(5) and (1) of the Act by failing to
confer in good faith with Charging Party, as required by Sec-
tion 8(d) of the Act.
6. On May 25, 2003, Respondent violated Section 8(a)(5)
and (1) of the Act by withdrawing its recognition of the Charg-
ing Party as the exclusive bargaining representative of the unit
described in paragraph 3, above. At all times since May 25,
2003, Respondent has continued to violate Section 8(a)(5) and
(1) by continuing to refuse to recognize and bargain with the
Charging Party as the exclusive representative of this unit.
REMEDY
Respondent must remedy the violations of Section 8(a)(5)
and (1) discussed above. I recommend that the Board order
Respondent to recognize the Union and bargain with it in good
faith. Additionally, I recommend that the Board order Respon-
dent to rescind, at the Union’s request, any unilateral change in
any material, significant and substantial term or condition of
employment which it may have implemented since April 7,
2003, its last negotiating session. Respondent admits that it
was not then at impasse with the Union, and thus it was not
privileged to make any such unilateral change.
Additionally, to undo the harm caused by Respondent’s
unlawful withdrawal of recognition from the Union, the certifi-
cation year should be extended for a 1-year period running
from the date that Respondent begins to bargain in good faith.
See Enertech Electrical, 309 NLRB 896 fn. 1 (1992), and cases
cited therein.
Further, I recommend that the Board order Respondent to
post the notice attached to this decision as appendix A.
Having found that Respondent engaged in unfair labor prac-
tices, I issue the following recommended.
[Recommended Order omitted from publication.]