Harley-Davidson Motor Company

National Labor Relations Board - Board Decisions

Jun 29, 2018

366 NLRB No. 121 (N.L.R.B. 2018)

366 NLRB No. 121
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Harley-Davidson Motor Company and International
Association of Machinists and Aerospace Work-
ers, Tyson Lodge 175, District 98. Case 05–CA–
183791
June 29, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On June 27, 2017, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief, which the Charging Party joined.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.1
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally offering
a voluntary separation incentive plan (“VSIP”) to em-
ployees in August 2016 without affording the Interna-
tional Association of Machinists and Aerospace Work-
ers, Tyson Lodge No. 175, District 98 (the Union) notice
and an opportunity to bargain.2 The judge noted that the
VSIP was offered in conjunction with a planned October
layoff, which the Respondent had a right to unilaterally
implement under the parties’ collective-bargaining
agreement. The judge reasoned that because the Union
had waived its right to bargain about the layoff, it had
also waived its right to bargain about the VSIP. The
judge also noted, however, that if the Respondent had
any obligation to bargain over any aspect of the layoff,
its presentation of the VSIP “would certainly qualify as a
fait accompli.” For the reasons explained below, we find
that the judge erred in finding that the Respondent had no
obligation to bargain about the VSIP. We also find that
the Union did not waive its right to bargain about the

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 All dates refer to 2016 unless otherwise stated.
VSIP because the Respondent presented it as a fait ac-
compli.
I.
Background
The facts are largely undisputed. The Respondent
manufactures and assembles motorcycles at its York,
Pennsylvania plant. Michael Fisher is the general man-
ager of the York facility. The Union has represented a
unit of the Respondent’s production and maintenance
employees for several decades. Brian Zarilla is president
of the Union, and Kermit Forbes and David Staub are the
vice-president and chief steward, respectively. The par-
ties’ most recent collective-bargaining agreement is ef-
fective from February 1, 2016, through October 15,
2022. Article 8 of the agreement provides for indefinite
layoffs by plant-wide seniority, with certain notice re-
quirements.3
On August 26, managers at the Respondent’s head-
quarters in Milwaukee, Wisconsin finalized plans to re-
duce its York facility workforce by 102 bargaining-unit
employees through a combination of layoffs and a VSIP
offered to senior tier I employees who chose to voluntari-
ly resign.4 That same day, Kyle Johansen, director of
business services and Labor Relations, emailed a draft of
the VSIP to Fisher, instructing him that it was to be pre-
sented to the Union as a memorandum of understanding
and to keep it confidential until “corporate” gave the go-
ahead. On August 29, after receiving the green light,
Fisher informed Forbes and Staub that, in conjunction
with layoffs, the Respondent would be offering a one-
time $15,000 VSIP to employees. Fisher also advised
them that the Respondent would conduct “town hall”
meetings with employees on August 31 to explain the
layoffs and VSIP. Forbes telephoned Zarilla, who was
on leave, and relayed the information. On August 30,
Zarilla met with Fisher and complained that the Re-
spondent had not given the Union an opportunity to bar-
gain and that the Union objected to the amount of the
incentive and the Respondent’s decision to offer the
VSIP only to certain employees. On August 31, Fisher
nevertheless proceeded to hold six town hall meetings at
which he gave a Power Point presentation informing em-
ployees of the layoffs and VSIP. Specifically, Fisher
advised employees that a lump sum incentive payment

3 Art. 8 also provides for temporary layoffs, not at issue here, with
different notice and seniority requirements.
4 Tier 1 employees are more senior employees than tier 2 employees
and receive a higher wage rate than tier 2 employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
would be available to certain Tier 1 employees who ap-
plied between September 6 and 16.
On September 1, the Respondent emailed a copy of the
VSIP to Zarilla. In an email on September 2, Zarilla
advised Johansen that the Union was not in agreement
with the VSIP and demanded bargaining over it. Johan-
sen responded that he was happy to discuss the VSIP and
would telephone Zarilla at 2 p.m. Zarilla asked, “Is this
something you want to negotiate?” Johansen replied,
“I’m willing to have a discussion with you in response to
your letter.” On September 6, following a telephone
conversation between the two, Johansen emailed Zarilla,
in pertinent part:
…I understand the [U]nion would prefer a different ap-
proach than the $15[,000] voluntary separation incen-
tive the Company is currently offering. Unfortunately,
the current $15[,000] is all the Company is prepared to
offer.
From September 6 through 23, Johansen and Zarilla
exchanged correspondence about the VSIP. Even so, the
Respondent did not withdraw the VSIP, and ultimately
seven employees signed up for it during the open period.
The Judge’s Findings
Citing the Union’s failure to respond to Johansen’s
September 6 email—which stated, “[I]f the [U]nion does
not want the Company to proceed, we will withdraw the
voluntary incentive offer, cancel the current process un-
derway and implement the layoffs as required under the
CBA”—the judge found that the Union gave the Re-
spondent “carte blanche with regard to this layoff.” The
judge also found that the VSIP effectively was part of the
layoff because the Respondent implemented them in con-
junction with each other. As noted above, however, the
judge also concluded that, “If [the] Respondent had an
obligation to bargain over any aspects of this layoff, its
presentation of the $15,000 incentive would certainly
qualify as a fait accompli. It was presented to the Union
shortly before implementation and was presented as a
‘take it or leave it’ proposition.”
The General Counsel argues that the judge erred in
finding that the VSIP was an aspect of the layoff. The
General Counsel acknowledges that the parties’ collec-
tive-bargaining agreement gives the Respondent the right
to conduct both temporary and indefinite layoffs, deter-
mine the size of layoffs, and conduct layoffs by reverse
seniority. The General Counsel argues, however, that the
collective-bargaining agreement does not speak to VSIPs
and that even though VSIPs might impact the ultimate
number of employees designated for layoff, the two are
distinct. The General Counsel also argues that VSIPs are
a mandatory subject of bargaining, but that the Respond-
ent’s implementation of the VSIP within days of telling
the Union makes it a fait accompli. As discussed below,
we agree with the General Counsel.
II.
DISCUSSION
The law is well settled that wages and terms and con-
ditions of employment are mandatory subjects of bar-
gaining over which an employer has an obligation to
bargain with its employees’ exclusive representative.
See NLRB v. Katz, 369 U.S. 736, 742–743 (1962); Le-
nawee Stamping Corporation d/b/a Kirchhoff Van-Robb,
365 NLRB No. 97, slip op. at 8 (2017); Philadelphia
Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003),
enfd. 112 Fed. Appx. 65 (D.C. Cir. 2004). The obliga-
tion to bargain may be waived by the Union either by the
terms of a collective-bargaining agreement or by con-
duct, but the waiver must be clear and unmistakable.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983); Philadelphia Coca-Cola Bottling Co., supra at
353. When an employer presents the bargaining repre-
sentative with a fait accompli, however, the Board will
not find a waiver. Comau, Inc., 364 NLRB No. 48, slip
op. at 3 (2016); Tesoro Refining & Marketing Co., 360
NLRB 293, 295 fn. 10 (2014) (“[T]he Union cannot be
held to have waived bargaining by failing to pursue ne-
gotiations over changes that were presented as a fait ac-
compli.”).
As detailed above, on August 29, the Respondent in-
formed the Union that it planned to implement a layoff
and offer certain employees a VSIP of $15,000. No par-
ty contests that Article 8 of the 2016–2022 collective-
bargaining agreement reserves to the Respondent the
right to implement indefinite layoffs based on seniority.
But neither Article 8 nor anything else in the collective-
bargaining agreement addresses VSIPs, which are pay-
ments to current employees as inducements to get them
to retire and, therefore, encompass wages and terms and
conditions of employment. Thus, VSIPs are mandatory
subjects of bargaining. See North American Pipe Corp.,
347 NLRB 836, 837 (2006) (wages include “emoluments
of value which may accrue to employees out of their em-
ployment relationship.”) (citation omitted), petition for
review denied sub nom. UNITE HERE v. NLRB, 546
F.3d 239 (2d Cir. 2008).5 The fact that the Respondent
offered the VSIP in conjunction with its announcement
of layoffs does not make the VSIP part and parcel of the

5 But cf., Allied Chemical & Alkali Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 157 (1971) (insurance benefits of retirees are not a
mandatory subject of bargaining).
HARLEY-DAVIDSON MOTOR CO. 3
impending layoffs. The VSIP fundamentally differs
from layoffs in that eligibility for the VSIP was limited
to Tier 1 employees, whom the Respondent would not
have been able to target for layoff under the collective-
bargaining agreement because of their higher seniority.
Accordingly, we find that the Respondent was obliged to
bargain over the VSIP.
We also find that the Union did not waive its right to
bargain over the VSIP. On August 29, the Respondent
informed the Union about the VSIP, layoffs, and its deci-
sion to hold town hall meetings with employees. On
August 31, despite the Union’s August 30 protest, the
Respondent conducted the town hall meetings and an-
nounced the VSIP and the layoffs, thereby effectively
implementing the VSIP just 2 days after notifying the
Union. The Respondent’s notice to the Union 2 days
before presenting the VSIP to employees was merely
informational concerning the fait accompli and fails to
satisfy the requirements of the Act. Pontiac Osteopathic
Hospital, 336 NLRB 1021, 1023 (2001) (citations omit-
ted). Even assuming, as the Respondent asserts, that it
had made the Union aware of possible layoffs early in
2016, and that Zarilla had pitched favorable retirement
incentives for senior employees who were a few years
shy of retirement, the record shows, and the Respondent
acknowledges, that it alone devised the amount of and
terms of the VSIP. As announced, the Respondent start-
ed the VSIP acceptance period on September 6, notwith-
standing the Union’s earlier repeated objections. To the
extent that the Respondent conveyed a willingness to
discuss the VSIP on September 2, on September 6, it
made clear that the terms of the VSIP were not negotia-
ble when Johansen emailed Zarilla that “if the [U]nion
does not want the Company to proceed, we will with-
draw the [VSIP] offer, cancel the current process under-
way and implement the layoffs as required under the
CBA.”6 Even if we concluded that the Respondent did
not present the VSIP as a fait accompli until September
6, we would find the notice period here insufficient.7

6 This email also underscores the fact that the Respondent was well
aware that, while it had the contractual prerogative to implement the
layoffs without the Union’s approval, it had no such right with respect
to the VSIP. Johansen’s correspondence with Zarilla after September 6
does not render the Respondent’s conduct any less a fait accompli or
the Union’s conduct more of a waiver, much less cure or repudiate the
Respondent’s conduct under the Board’s Passavant standards. Passa-
vant Memorial Area Hospital, 237 NLRB 138 (1978) (repudiation of
unlawful conduct must be timely, unambiguous, and specific in nature
to the coercive conduct); see also Allied Aviation Fueling of Dallas, LP,
347 NLRB 248, 256 (2007) (no repudiation or rescission of unilateral
change in drug-testing policy).
7 There is no suggestion that the Respondent’s conduct was justified
by exigent circumstances. Cf. RBE Electronics of S.D., 320 NLRB 80,
81 (1995).
The Board has found that an employer’s decision to insti-
tute unilateral changes constitutes a fait accompli where
the employer gave comparable or significantly more no-
tice to the union than the Respondent gave here. See
Comau, Inc., supra, slip op. at 6, 24 (2016) (notice on
January 17 and implementation on January 23); Pontiac
Osteopathic Hospital, supra, at 1022-1023 (notice re-
ceived on December 13 and implementation on January
2); S&I Transport, Inc., 311 NLRB 1388, 1389 (1993)
(notice on September 27 and implementation on October
1).8
Finally, we reject the Respondent’s argument that it
had no obligation to offer the VSIP and therefore no ob-
ligation to bargain over it. The fact that the VSIP was
not dictated by terms of the collective-bargaining agree-
ment and that the Respondent offered it in conjunction
with the layoff, over which it was not obligated to bar-
gain, does not alter the fact that the VSIP was a term and
condition of employment and was therefore a matter the
Respondent had a legal obligation to bargain over. The
Board’s assessment of whether an obligation to bargain
exists does not turn on whether a change is an ostensible
benefit or detriment to employees. See Philadelphia
Coca-Cola Bottling Co., supra at 349 (bonus incentives),
and Pontiac Osteopathic Hospital, supra, at 1022 (bene-
ficial and detrimental changes to paid time off policy).
On the basis of the foregoing, we find that the Union
did not waive its right to bargain about the VSIP because
the Respondent presented it with a fait accompli. We
therefore find that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing
the VSIP without giving the Union notice and an oppor-
tunity to bargain about it.
ORDER
The National Labor Relations Board orders that the
Respondent, Harley-Davidson Motor Company, York,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying International
Association of Machinists and Aerospace Workers, Ty-
son Lodge No. 175, District 98 (the Union) and giving it
an opportunity to bargain.

8 We do not suggest that presenting a union with a proposal that
puts it between the proverbial rock and a hard place is unlawful. Un-
ions often must make difficult decisions about advantages and disad-
vantages that affect the employees they represent. The key here is that
the proposal should be presented to the union in a timely manner.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(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) Upon request of the Union, rescind the September
2016 voluntary separation incentive plan.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All hourly paid plant production and maintenance em-
ployees employed at the York, Pennsylvania facility;
but excluding salaried employees including, but not
limited to: executive employees, supervisory employ-
ees, guards, watchmen, timekeepers, quality control
employees, Engineering Department employees, cleri-
cal employees, Industrial Engineering employees, Hu-
man Resources employees, and all outside workmen
hired by the Company.
(c) Within 14 days after service by the Region, post at
its facility in York, Pennsylvania, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 5,
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. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current and
former employees employed by the Respondent at any
time since August 31, 2016.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided the

9 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.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 29, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
violated 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 change your terms and conditions of
employment without first notifying International Associ-
ation of Machinists and Aerospace Workers, Tyson
Lodge No. 175, District 98 (the Union) and giving it an
opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, upon request of the Union, rescind the Sep-
tember 2016 Voluntary Separation Incentive Plan.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
HARLEY-DAVIDSON MOTOR CO. 5
All hourly paid plant production and maintenance em-
ployees employed at the York, Pennsylvania facility;
but excluding salaried employees including, but not
limited to: executive employees, supervisory employ-
ees, guards, watchmen, timekeepers, quality control
employees, Engineering Department employees, cleri-
cal employees, Industrial Engineering employees, Hu-
man Resources employees, and all outside workmen
hired by the Company.
HARLEY-DAVIDSON MOTOR COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/05-CA-183791 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Andrea Vaughn and Patrick J. Cullen, Esqs., for the General
Counsel.
Brian F. Jackson, Esq. (McNees, Wallace & Nurick, LLC), of
Harrisburg, Pennsylvania, for the Respondent.
Nancy B.G. Lassen, Esq. (Willig, Williams & Davidson), of
Philadelphia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Baltimore, Maryland, on May 3, 2017. The IAM
Lodge 175 filed the charge on September 7, 2016. The General
Counsel issued the complaint on December 21, 2016.
On August 29, 2016, Respondent informed the Charging
Party Union that it was going to lay-off 102 bargaining unit
employees in the fall of 2016. It also informed the Union on
August 29, at least orally, that it was going to offer a $15,000
incentive to certain unit employees if they would retire volun-
tarily. The General Counsel alleges that Respondent violated
Section 8(a)(5) and (1) of the Act in failing to afford the Union
an opportunity to bargain with respect to the incentive plan.
The General Counsel is not alleging that Respondent violated
the Act in failing to provide an opportunity to bargain over the
lay-off. Also, contrary to the suggestion in footnote 4 of the
General Counsel’s brief, he did not allege a violation for a fail-
ure to engage in bargaining over the effects of the lay-off.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, manufactures motorcycles at sev-
eral facilities in the United States, including York, Pennsylva-
nia. Respondent sold and shipped goods valued in excess of
$50,000 directly to points outside of Pennsylvania from the
York plant in the year ending on November 30, 2016. Re-
spondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union. IAM Lodge 175, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Charging Party Union has represented production and
maintenance employees at Respondent’s York, Pennsylvania
facility for many years. As of May 2017, the bargaining unit
consisted of about 1000 employees. Most of these are regular
full-time employees, others are long-term casual employees,
but some are short-terms casual employees.
Respondent has a 2 tier compensation system. Employees
hired prior to February 2010 are generally compensated better
than those hired afterwards. The parties had a collective-
bargaining agreement that ran from 2010–2017. In 2015 Re-
spondent initiated early contract negotiations which resulted in
a new agreement with a term from February 1, 2016, to October
15, 2022. The new contract generally increased the compensa-
tion of unit employees. However, during the contact negotia-
tions in late 2015, Respondent informed the Union that produc-
tion of its “soft tail” model motorcycle would be moved from
York to its Kansas City plant in 2017 and this would result in
the loss of about 30 percent of the unit jobs at York.
On August 29, 2016, Michael Fisher, the General Manager at
the York plant, went to the office of the local union, which is
located next to his office. Local Union President Brian Zarilla
was not at work that day. Fisher spoke to Kermit Forbes, the
union’s vice president, and David Staub, the union’s chief
steward. Fisher told Forbes about an incentive plan the compa-
ny would be offering to employees who chose to resign volun-
tarily. This plan was being offered in conjunction with Re-
spondent’s plan to lay-off 102 employees from the York plant
in the fall of 2016. There is a dispute as to whether the Union
was advised of the lay-off prior to August 29.1 I need not re-
solve that dispute since the issue in this case only concerns the
incentive plan; not the lay-off.
Moreover, the Union did not request bargaining over the fall
2016 lay-off. Furthermore, the record establishes that Re-
spondent could have instituted the lay-off without offering any
incentives, and without bargaining over the size or timing of a

1 The record establishes that Respondent at least hinted to the Union
that there might be lay-offs in 2016 prior to August 29. Fisher, for
example, told the Union that Harley’s motorcycle sales were not what
the company had projected they would be.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
layoff (GC Exh. 6) (set forth below), (Tr. 74–76).2
Fisher told Forbes and Staub that Respondent would be of-
fering those employees who would be laid off a one-time
$15,000 incentive to resign (Tr. 71, 221). He also told them
that the company would hold “town hall” meetings for all em-
ployees on August 31 to discuss the lay-offs and the incentive
plan. Further, Fisher announced that Respondent would be
slowing down the assembly line so that one motorcycle would
be assembled in 90 seconds, rather than in 75 seconds. Forbes
immediately called Union President Zarilla and recounted his
conversation with Fisher.
The details of the incentive plan are set forth in a proposed
Memorandum of Understanding (MOU) (GC Exh. 4). Mike
Fisher testified that he gave a copy of this MOU to Forbes on
August 29. Union officials deny this and state that they did not
see the MOU until Thursday, September 1. The MOU provides
that the incentive payment of $15,000 will be available to regu-
lar tier 1 employees impacted by the lay-off. It also provides
that employees volunteering for termination must do so by
noon on September 16 to receive the incentive payment.
Union President Zarilla met with Fisher at the York plant on
Tuesday, August 30. His testimony indicates that regardless of
whether the Union had a copy of the MOU, it was familiar with
the details of the incentive plan.
The conversation was pretty, pretty heated because, first of
all, we didn't agree with the incentive package that they were
throwing out there because we didn't get a chance to negotiate
any kind of package. We didn't agree that it should only be of-
fered to certain employees in the factory. We didn't agree that
102 people should be laid off. We didn't agree that the line
rate changes should go down by 75 units a day. So we let him
know that we didn't agree with it, and we weren't happy with
it, and we didn't get a chance to bargain it.
Tr. 31.
Fisher also told Zarilla that Respondent would hold “town
hall” meetings with employees on Wednesday, August 31 to
discuss the lay-off and the incentive plan.
Fisher conducted 6 separate meetings on the 31. In these
meetings he read from a power point presentation (GC Exh. 2).
The power point contains specific information on the number of
lay-offs and the change in the speed of the assembly line.
However, with regard to the incentive plan, it only indicates
that there will be a lump sum payout-without indicating the
amount of the payout.
On Thursday, September 1, 2016, Theresa Kwayi, the human
resources director at York, emailed the Union documents set-
ting forth the specifics of the incentive plan. This included the
amount of the one-time payment ($15,000), the date by which
eligible employees must make an irrevocable decision to termi-
nate in order to receive the incentive (between September 6 and
September 16 at noon) and that employees who accepted the

2 It is unfortunate that the record does not contain the contractual
clauses pertaining to management’s rights with respect to lay-offs (e.g.,
art. 8 of the current collective-bargaining agreement). However, the
record establishes that the Union had waived its rights to bargain over
the fall 2016 lay-off, Tr. 75–76; GC Exh. 6.
incentive would be give 2-weeks notice between October 10
and November 30, 2016, regarding their last day of employ-
ment.3
It is unclear whether the Union was appraised of when the
“open season” for employees to accept the incentive would
occur, prior to September 1. Also, General Manager Mike
Fisher did not know the timing of the fall 2016 lay-offs until
that date.
On Friday, September 2, Zarilla sent a letter to Kyle Johan-
sen, Respondent’s director of business services and labor rela-
tions, demanding bargaining over the incentive program. Jo-
hansen works at corporate headquarters in Milwaukee. Zarilla
also sent the letter to Johansen as an attachment to an email.
Johansen responded via email the same day stating that he was
willing to discuss the bargaining demand.
Johansen and Zarilla had a telephone conversation on the
morning of Tuesday, September 6 (the day after Labor Day).
Johansen followed up that conversation with an email stating
that $15,000 was all the company was willing to offer as an
incentive for voluntary resignation. He continued:
As we discussed the Company prefers to continue the process
of seeking volunteers for the incentive and allowing employ-
ees to choose whether or not to sign up for it. At the same
time, the Company does not want a confrontation with the un-
ion over the incentive. To that end, we are seeking permission
from the union to proceed with the current voluntary incentive
we have offered. However, if the union does not want the
Company to proceed, we will withdraw the voluntary in-
centive offer, cancel the current process underway and
implement the layoffs as required under the CBA. (Em-
phasis added)
Please let me know the union's position by the close of busi-
ness today. If I don't hear from you, I will assume the union
has granted permission for the Company to continue the vol-
untary separation incentive process currently underway.
(GC Exh. 6.)
I conclude that the Union’s silence constitutes an acknowl-
edgement that Respondent was entitled to implement the lay-
off however it wished—without providing an opportunity to
bargain over the details of the lay-off, including whether or not
to offer any incentive.
On September 7, the Union filed the charge giving rise to
this case.
On September 15, the parties exchanged emails. Zarilla stat-
ed that the Union did not accept an incentive plan that did not
cover all members of the local. Further, he wrote, “if that
means that you are going to pull the incentive plan then you do
what you need to do.”
Seven eligible employees accepted the incentive to terminate
their employment. Afterwards, on September 21, 2016, the
Union suggested changes to the incentive plan such as offering
$30,000 to 61 employees instead of $15,000 to 102, or reducing
the age at which employees would be eligible for a full pen-

3 Zarilla testified that he had seen documents explaining the plan be-
fore September 1, but did not say when he saw it, Tr. 39–40.
HARLEY-DAVIDSON MOTOR CO. 7
sion.4 Respondent rejected these suggestions.
The Union and company discussed the incentive plan over
the telephone on September 21. Zarilla asked Kyle Johansen to
come to York to negotiate with regard to the incentive plan,
face to face. Johansen declined. Zarilla asked if the incentive
plan was open for negotiation. Johansen responded that the
plan was closed.5
On September 23, a week after the opportunity to accept the
$15,000 incentive expired, the Union requested that Respond-
ent discontinue the offer and rescind it (GC Exh. 9). Respond-
ent rejected this request.
ANALYSIS
I am dismissing the complaint in this matter because the Un-
ion waived all its bargaining rights with respect to the fall 2016
lay-off. The record, particularly Union President Zarilla’s tes-
timony at (Tr. 74–76), and (GC Exh. 6), establish that the Un-
ion had given Respondent a carte blanche with regard to this
lay-off. The Union and General Counsel do not take issue with
the statement in Kyle Johnson’s September 6, 2016 email that
Respondent had the right to cancel the incentive program and
proceed with the lay-offs without it. Instead of responding to
Johnson’s inquiry, the Union remained silent (other than filing
a ULP charge) until September 15 when it appears to have sug-
gested that Respondent should cancel the incentive plan and

4 Respondent had hired a lot of employees in 1988 and 1989 who
were only a few years short of the service necessary to receive a full
pension.
5 The record is a little unclear as to what happened on September 21
and 22. Johansen testified that he told Zarilla on September 21 that
while Respondent would not revise its pension plan as an incentive, it
would take another look at doubling the size of the lump-sum payout.
He testified that on September 22, he told Zarilla that Respondent
would not double the payout either.
proceed with the lay-offs without any incentive plan.6 Of
course, by this time, Respondent and some employees had re-
lied on the Union’s silence to move forward with the incentive
plan.
It is true, as the General Counsel states, that there generally
cannot be a waiver of a union’s bargaining rights when it is
presented with a fait accompli, Pontiac Osteopathic Hospital,
336 NLRB 1021 (2001). If Respondent had an obligation to
bargain over any aspects of this lay-off, its presentation of the
$15,000 incentive would certainly qualify as a fait accompli. It
was presented to the Union shortly before implementation and
was presented as a “take it or leave it” proposition. However,
the Union in the instant case had already waived its bargaining
rights regarding all terms of the 2016 lay-off prior to August
29, 2016, when it learned of the $15,000 incentive offer.
Moreover, its failure to respond to Johansen’s September 6
email until September 15 also waived any rights it would have
had to bargain over the incentive plan.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 27, 2017

6 I regard this as another acknowledgement by the Union that Re-
spondent had the right to implement the lay-off without bargaining and
without offering any incentive plan.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.