Badlands Golf Course

National Labor Relations Board - Board Decisions

Jun 10, 2010

355 N.L.R.B. 251 (N.L.R.B. 2010)

BADLANDS GOLF COURSE
355 NLRB No. 42
251
American Golf Corporation d/b/a Badlands Golf
Course and Laborers’ International Union of
North America, Local 872. Cases 28–CA–18753,
28–CA–18757, 28–CA–18856, and 28–CA–19075
June 10, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On July 19, 2007, the National Labor Relations Board
issued a Decision and Order in this proceeding, in which
it held that the Respondent did not violate Section 8(a)(5)
of the Act when it withdrew recognition from the Labor-
ers International Union of North America, Local 872 (the
Union), based on an employee decertification petition
and thereafter refused to provide requested bargaining
information.1 The Board concluded that a reasonable
time for protected bargaining pursuant to a prior Board
remedial Order had elapsed before the Respondent law-
fully withdrew recognition.
Subsequently, the Union petitioned the United States
Court of Appeals for the Ninth Circuit for review of the
Board’s decision. On April 20, 2009, the Ninth Circuit
granted the petition for review and remanded this case to
the Board “for further proceedings.”2
On October 27, 2009, the Board notified the parties
that it had decided to accept the court’s remand and that
all parties could submit statements of position with re-
spect to the issues raised by the remand. The Union filed
a statement of position.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board accepts the court’s remand as the law of the
case. Consistent with that remand, we find that a reason-
able period of time for bargaining had not elapsed when
the Respondent withdrew recognition. Accordingly, the
Respondent was not privileged to challenge the Union’s
continuing majority status at that time, and its with-
drawal of recognition and refusal to provide requested
bargaining information violated Section 8(a)(5) of the
Act.
Facts
The Union was certified as the bargaining representa-
tive of the maintenance employees at a golf course oper-
ated by the Respondent in Las Vegas, Nevada, in De-
cember 1999. The parties bargained for 8 months until
the Union abandoned the negotiations in August 2000.
In January 2002, the Union returned and requested re-

1 350 NLRB 264 (2007) (Members Liebman and Walsh dissenting).
2 Laborers, Local 872 v. NLRB, 323 Fed. Appx. 523, 2009 WL
1059916 (9th Cir. 2009) (unpublished memorandum opinion).
sumption of bargaining, but the Respondent refused and
withdrew recognition on February 8, 2002. On Novem-
ber 8, 2002, in the absence of exceptions, the Board
adopted an administrative law judge’s findings that the
Respondent’s refusal to bargain and withdrawal of rec-
ognition were unlawful. The Board ordered the Respon-
dent to bargain with the Union.
The parties resumed bargaining on November 26,
2002, and met about six to eight times over the next 6
months. They agreed on all the terms of a contract, ex-
cept for being “at loggerheads,” but not at impasse, over
the Union’s proposal to include a table of the employees’
current wage rates in the contract.
On May 23, 2003, the Respondent received a petition
from 17 of the 19 unit employees stating they no longer
wished to be represented by the Union. That day, the
Respondent also received a copy of a decertification peti-
tion employees had filed with the Board. The parties
continued their discussions until the Respondent with-
drew recognition from the Union sometime between June
10 and 15. The parties stipulated that the expression of
employee disaffection as of May 23 was unchanged
when the Respondent withdrew recognition.
On June 3 and 25 and October 9, 2003, the Union re-
quested the following bargaining information from the
Respondent: unit employees’ names, addresses, phone
numbers, dates of hire, rates of pay, and job classifica-
tions. Consistent with its withdrawal of recognition, the
Respondent did not provide the requested information or
otherwise respond to the Union’s request.
Board Decision
In Lee Lumber & Building Material Corp., 334 NLRB
399, 402 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002), the
Board held that a “reasonable period of time” for bar-
gaining pursuant to an affirmative bargaining order
remedying an employer’s refusal to bargain with an in-
cumbent union should be at least 6 months, during which
the union’s majority status could not be challenged. It
further held that this insulated bargaining period may be
extended up to a year based on five case-specific factors:
(1) whether the parties are bargaining for an initial con-
tract; (2) the complexity of the issues being negotiated
and of the parties’ bargaining processes; (3) the amount
of time elapsed since the parties began to bargain and the
number of bargaining sessions; (4) the amount of pro-
gress made in negotiations and the parties’ proximity to
agreement; and (5) whether the parties are at impasse.
In the Board’s prior Decision and Order in this case, a
Board majority applied the Lee Lumber factors to find
that the Respondent lawfully relied on the employee peti-
tion and withdrew recognition within weeks after expira-
tion of the 6-month insulated bargaining period. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

252
Board agreed that two of those factors—first contract
bargaining and the absence of impasse—supported ex-
tending the insulated period beyond 6 months. However,
the Board majority found that the other factors did not
support an extension. In particular, the majority con-
cluded that the factor of time elapsed and bargaining
sessions held “overwhelmingly favors” finding that a
reasonable period for bargaining had elapsed. 350
NLRB at 266.
The Board reasoned that “the parties did not start from
scratch when they resumed bargaining in November
2002.” They had bargained for about 8 months “from
the time the Union was originally certified in December
1999 until the Union ‘walked away’ from bargaining in
August 2000.” Id. at 265. That earlier bargaining, added
to the 6 months of bargaining after the Board’s Order,
meant that the parties had bargained for about 14 months.
Id. Further, the “substantial bargaining” between the
parties after the Union’s certification, in addition to the
bargaining that began in November 2002, prompted the
Board to give “less weight than we otherwise might to
the fact that the parties were bargaining for an initial con-
tract.” Id. at 267. The Board acknowledged that “[h]ad
the parties done little or no previous bargaining, the dif-
ficulties often encountered in bargaining for an initial
contract might loom larger in the overall analysis.” Id.
Ninth Circuit’s Decision
The court found that the Board’s analysis of Lee Lum-
ber factors relied on factual findings about the parties’
pre-2002 bargaining that were unsupported by substantial
evidence. The court found that “[t]here is no evidence in
the record concerning the nature or the substance of the
earlier round of bargaining—what happened in any of the
bargaining sessions, how the parties related to one an-
other, or what progress, if any, was made.” 323 Fed.
Appx. at 524. (Emphasis in original.) The court empha-
sized that “[t]he Board’s unsupported finding regarding
the impact of the parties’ earlier negotiations was critical
to its analysis.” Id. at 525. Consequently, the court re-
manded the case to the Board for further proceedings.
Analysis
Because we have accepted the court’s remand as the
law of the case, the court’s findings and conclusions are
necessarily binding upon us. The court found that the
record does not contain evidentiary support for the
Board’s finding that “substantial bargaining” had oc-
curred between the parties in the earlier negotiations.
That finding was pivotal to the Board’s giving determi-
native weight to the time factor and minimizing the ini-
tial contract factor in balancing the Lee Lumber factors.
In light of the court’s opinion, we now find the factor
of time elapsed and bargaining sessions held favors ex-
tension of the insulated bargaining period, inasmuch as
the parties met just six to eight times during the 6 months
of remedial bargaining in 2002–2003. Furthermore, the
fact that the parties were bargaining for their first con-
tract takes on greater significance in our analysis. Con-
sidered in conjunction with the fact that negotiations
were not at impasse, these factors outweigh the two re-
maining countervailing factors—absence of any bargain-
ing complexities and proximity to an agreement—that
the Board previously found would support limiting the
insulated period to 6 months.
We find, therefore, that the parties had not yet bar-
gained for a reasonable period of time before the Re-
spondent withdrew recognition from the Union. Accord-
ingly, we now conclude that the Respondent violated
Section 8(a)(5) of the Act by withdrawing recognition
and by failing and refusing to provide the Union with
requested bargaining information.
CONCLUSIONS OF LAW
1. American Golf Corporation d/b/a Badlands Golf
Course is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Laborers’ International Union of North Amer-
ica, Local 872 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the following conduct, the Respon-
dent has violated Section 8(a)(5) and (1) of the Act.
(a) Between June 10 and 15, 2003, withdrawing its
recognition of the Union as the exclusive collective-
bargaining representative of the unit.
(b) Failing and refusing to furnish the Union with the
information requested by it on June 3 and 25 and October
9, 2003.
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the Union, we shall order the Respondent to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. For the reasons set
forth below, we shall enter an affirmative bargaining
order, which requires bargaining for at least a reasonable
period of time as the appropriate remedy for the Respon-
dent’s unlawful withdrawal of recognition from the Un-
ion. In addition, we shall order the Respondent to pro-
BADLANDS GOLF COURSE

253
vide the information requested by the Union on June 3
and 25 and October 9, 2003.3
The Board has previously held that an affirmative bar-
gaining order is “the traditional, appropriate remedy for
an 8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Caterair International, 322 NLRB 64, 68
(1996). In several cases, however, the United States
Court of Appeals for the District of Columbia Circuit has
required the Board to justify, on the facts of each case,
the imposition of an affirmative bargaining order. See,
e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d
727 (D.C. Cir. 2000); Lee Lumber & Building Material
Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997);
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C.
Cir. 1994). In Vincent Industrial Plastics, supra, the
court stated that an affirmative bargaining order “must be
justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’
Section 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargain-
ing representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.” Id. at
738. Consistent with the court’s requirement, we have
examined the particular facts of this case and we find that
a balancing of the three factors warrants an affirmative
bargaining order.4
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s unlawful withdrawal of recognition and re-
sulting refusal to collectively bargain with the Union.
At the same time, an affirmative bargaining order, with
its attendant bar to raising a question concerning the Un-
ion’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because the order’s duration is not indefinite but only for
a reasonable period of time sufficient to allow the good-
faith bargaining that the Respondent’s unlawful with-
drawal of recognition cut short. It is only by restoring
the status quo ante and requiring the Respondent to bar-
gain with the Union for a reasonable period of time that

3 We deny the Union’s request for other special remedies.
4 Member Schaumber does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” He
agrees with the United States Court of Appeals for the District of Co-
lumbia Circuit that a case-by-case analysis is required to determine if
the remedy is appropriate. Alpha Associates, 344 NLRB 782, 787 fn.
14 (2005). He recognizes, however, that the view expressed in Caterair
International, supra, represents extant Board law. Flying Foods, 345
NLRB 101, 109 fn. 23 (2005).
employees’ Section 7 right to union representation is
vindicated. It will also give employees an opportunity to
fairly assess the Union’s effectiveness as a bargaining
representative and determine whether continued repre-
sentation by the Union is in their best interests.
(2) An affirmative bargaining order also serves the
Act’s policies of fostering meaningful collective bargain-
ing and industrial peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging
support for the Union, and it ensures that the Union will
not be pressured to achieve immediate results at the bar-
gaining table—results that might not be in the employ-
ees’ best interests. It fosters industrial peace by reinstat-
ing the Union to its rightful position as the bargaining
representative chosen by a majority of the employees.
Also, as mentioned, providing this temporary period of
insulated bargaining will afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the effects of the Respondent’s unlawful
withdrawal of recognition and refusal to bargain.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s withdrawal of recogni-
tion and refusal to bargain with the Union because it
would allow another such challenge to the Union’s major-
ity status before the taint of the Respondent’s previous
unlawful withdrawal of recognition dissipated. Allowing
another challenge to the Union’s majority status without a
reasonable period for bargaining would be particularly
unfair given that the litigation of the Union’s charges took
several years and, as a result, the Union needs to reestab-
lish its representative status with unit employees. Indeed,
permitting a decertification petition to be filed immedi-
ately might very well allow the Respondent to profit from
its own unlawful conduct. We find that these circum-
stances outweigh the temporary impact the affirmative
bargaining order will have on the rights of employees who
oppose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violation in this case.
ORDER
The Respondent, American Golf Corporation d/b/a
Badlands Golf Course, Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the Labor-
ers’ International Union of North America, Local 872.
(b) Unlawfully withdrawing recognition from the Un-
ion.
(c) Refusing to supply the Union with necessary and
relevant information that it requests for purposes of per-
forming its representative duties.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

254
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Labor-
ers’ International Union of North America, Local 872, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All regular full-time and regular part-time grounds-
keepers, mechanics, irrigators, and crew leaders em-
ployed by the Respondent at its Badlands Golf Club lo-
cated in Las Vegas, Nevada; excluding all other em-
ployees, pro-shop workers, food and beverage workers,
office clerical employees, casual and temporary em-
ployees, guards and supervisors as defined in the Act.

(b) Furnish to the Union the information it requested in
its letters dated June 3 and 25 and October 9, 2003.
(c) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”5 Copies of the notice written
in both English and Spanish, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or ceased working
at its Las Vegas, Nevada facility, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice in both English and Spanish to all current employees
and former employees employed by the Respondent at
any time since June 3, 2003.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-

5 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.”
testing to the steps that the Respondent has taken to
comply.
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 withdraw recognition of the Laborers’
International Union of North America, Local 872, and
refuse to recognize and bargain with it as the exclusive
collective-bargaining representative of our employees in
the bargaining unit described below.
WE WILL NOT refuse to supply the Union with neces-
sary and relevant information that it requests for pur-
poses of performing its representative duties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Laborers’ International Union of North America, Local
872, as the exclusive collective-bargaining representative
of the employees in the following appropriate unit con-
cerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement:

All regular full-time and regular part-time grounds-
keepers, mechanics, irrigators, and crew leaders em-
ployed by us at our Badlands Golf Club located in Las
Vegas, Nevada; excluding all other employees, pro-
shop workers, food and beverage workers, office cleri-
cal employees, casual and temporary employees,
guards and supervisors as defined in the Act.

WE WILL provide the Union with the information it re-
quested in its June 3 and 25 and October 9, 2003 letters.
AMERICAN GOLF CORPORATION D/B/A BADLANDS
GOLF COURSE