Harley-Davidson Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1985

273 N.L.R.B. 1531 (N.L.R.B. 1985)

HARLEY-DAVIDSON CO. 1531
Harley-Davidson Transportation Co., Inc. and
Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 430. Case 4-CA-
13710
22 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 February 1984 Administrative Law Judge
David S. Davidson issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The Charging Party filed a brief in support
of the judge's decision. The General Counsel filed
a brief in support of the judge's decision and in
answer to the Respondent's exceptions.1
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.
The pertinent facts are undisputed. Prior to 1
April 1982, Service Group, Inc. (SGI) provided
freight transportation services to Harley-Davidson
Motor Co. (H-DMC) at its York, Pennsylvania fa-
cility. The Union had successive collective-bargain-
ing agreements with SGI for 3 years covering a
unit of truckdrivers engaged in hauling for H-
DMC. The latest of these agreements expired on 31
March 1982.
On 1 April 1982 Respondent Harley-Davidson
Transportation Co. (HDT) assumed control of
SGI's trucking operation for H-DMC. A majority
of the drivers then hired by HDT had been em-
ployed previously by SGI in the bargaining unit
represented by the Union. These employees contin-
ued to comprise a majority of the Respondent's
drivers through the date of the hearing in this case.
On 6 July 1982 the Union called on the Re-
spondent to bargain with it as a successor to SGI.
Recognizing that it might be a successor employer
to SGI, the Respondent agreed on 19 January 1983
to bargain with the Union. The Respondent does
not now dispute its successor status.
The Union and the Respondent met to negotiate
three times in February and April 1983 and had
scheduled a fourth meeting for 16 May 1983. The
fourth meeting did not take place. On 9 May 1983
the Respondent withdrew from negotiations be-
cause, inter alia, it had been presented on 7 or 8
May with a petition signed by a majority of its em-
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
ployees stating that they did not wish to be repre-
sented by the Union.
The judge found that by conceding its obligation
as a successor and agreeing to negotiate, the Re-
spondent voluntarily recognized the Union. He fur-
ther found that by so doing the Respondent im-
pliedly admitted that it had no reason to doubt the
Union's majority status on the date the Union re-
quested bargaining. Relying on the Board's state-
ment in Landmark International Trucks, 257 NLRB
1375 fn. 4 (1981), enf. denied in pertinent part 699
F.2d 815 (6th Cir. 1983), that "we can discern no
principle that would support distinguishing a suc-
cessor's bargaining obligation based on voluntary
recognition of a majority union from any other em-
ployer's duty to bargain for a reasonable period,"
the judge concluded that the Respondent had in-
curred the obligation arising from voluntary recog-
nition to bargain for a "reasonable time" notwith-
standing any subsequent good-faith doubt of the
Union's majority status. Alternatively, the judge
cited Holiday Inn of Niles Michigan, 241 NLRB
555, 559 (1979), for the proposition that a successor
employer can deny recognition only if its good-
faith doubt is based on circumstances existing on
the date recognition is sought, and that once a suc-
cessor has agreed to bargain, it is not privileged to
withdraw recognition based on circumstances aris-
ing thereafter until a reasonable time for bargaining
has elapsed. Accordingly, the judge concluded that
the Respondent violated Section 8(a)(5) of the Act
because it withdrew from negotiations before the
parties had bargained for a reasonable period.
We do not adopt the judge's conclusion because
we disagree with his characterization of a succes-
sor employer's bargaining obligation. 2 We adhere
to the view expressed in Barrington Plaza & Trag-
niew, 185 NLRB 962, 963 (1970), and cases cited
therein, that where, as here, a successor employer
recognizes a union which has been certified for a
year or more, the union enjoys a rebuttable pre-
sumption of majority status only. A successor may
lawfully withdraw from negotiation at any time
following recognition if it can show that the union
had in fact lost its majority status at the time of the
refusal to bargain or that the refusal to bargain was
grounded on a good-faith doubt based on objective
factors that the union continued to command ma-
jority support. 3 Accordingly, we overrule Land-
mark, Holiday Inn, and similar cases to the extent
they are inconsistent with this view.
We therefore do not pass on the judge's conclusion that a reasonable
time for bargaining had not elapsed.
3 See also Grico Corp., 265 NLRB 1344 (1982).
273 NLRB No. 192
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rule set forth today is supported by the
Sixth Circuit's decision in Landmark International
Trucks v. NLRB, 699 F.2d 815, 818 (6th Cir. 1983).
The court observed that a successor employer's ob-
ligation to bargain with the representative of its
predecessor's employees arises by operation of law
and cannot be truly voluntary. The court conclud-
ed as follows:
There is no reason to treat a change in own-
ership of the employer as the equivalent of a
certification or voluntary recognition of a
union following an organization drive. In the
latter cases the employees must be given an
opportunity to determine the effectiveness of
the union's representation free of any attempts
to decertify or otherwise change the relation-
ship. However, where the union has represent-
ed the employees for a year or more a change
in ownership of the employer does not disturb
the relationship between employees and the
union. While the relationship between employ-
ees and employer is a new one, the relation-
ship between employees and union is one of
long standing. A successor's duty to continue
recognition under such circumstances is no dif-
ferent from that of any other employer after
the certification year expires. Recognition
under these circumstances carries with it no ir-
rebuttable presumption of contiunued majority
status.
Applying the above rule to the instant case, we
turn to the Respondent's defense that on 9 May
1983, when it withdrew from bargaining, it har-
bored an objectively based good-faith doubt of the
Union's majority status. The judge found that the
Respondent had relied on, inter alia, a petition pre-
sented to it on 7 or 8 May 1983 apparently signed
by a majority of its employees. The petition stated
that the employees did not want to be represented
by the Union. The judge further found that the Re-
spondent's general manager made no attempt to au-
thenticate the signatures because they looked at a
glance to be those of his employees. We conclude
that the employee petition constituted a sufficient
objective ground to support the Respondent's
good-faith doubt of the Union's majority status. An
employer may rely on a petition apparently signed
by a majority of its employees as a basis for good-
faith doubt even though the employer did not au-
thenticate the signatures. Guerdon Industries, 218
NLRB 658, 660 (1975). The Respondent therefore
did not violate Section 8(a)(5) of the Act by with-
drawing from bargaining on 9 May 1983. Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. The
charge in this case was filed on May 12, 1983, and the
complaint issued on June 24, 1983, alleging that Re-
spondent violated Section 8(a)(1) and (5) of the Act by
withdrawing its recognition of the Union as the exclusive
collective-bargaining representative of its truckdrivers on
May 9, 1983, and by refusing to bargain collectively with
the Union after that date Respondent denies the commis-
sion of any unfair labor practices
A hearing in this case was held before me in Harris-
burg, Pennsylvania, October 20, 1983. Briefs have been
received from the General Counsel, the Charging Party,
and Respondent.
The issue in this case is whether, after initially recog-
nizing the Union and meeting for negotiations with it
three times during a 3-month period, Respondent was
obligated to continue bargaining with the Union after re-
ceiving a petition containing the presumed signatures of
a majority of the bargaining unit in support of a recently
filed decertification petition
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, engages in the
over-the-road truck transportation of motorcycles and
other freight from its York, Pennsylvania facility. During
the past fiscal year, Respondent received revenue ex-
ceeding $50,000 for the transportation of goods directly
to points outside Pennsylvania.
The complaint alleges, Respondent admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The facts in this case are largely undisputed. Before
April 1, 1982, Service Group, Inc. (SGI), an independent
contractor, provided transportation services to Harley-
Davidson Motor Company (H-DMC) from the facility at
2400 East Market Street in York, Pennsylvania The
Union had collective-bargaining agreements with SGI
HARLEY-DAVIDSON CO. 1533
for 3 years covering its drivers; the most recent contract
ran from January 1, 1981, to March 31, 1982.
In early March 1982, H-DMC notified the Union of its
decision to terminate its agreement with SGI. On April
1, 1982, Respondent, a wholly owned subsidiary of H-
DMC, assumed control of the operations previously han-
dled by SGI. A majority of the drivers then hired by Re-
spondent had been previously employed by SGI in the
bargaining unit represented by the Union. That majority
continued through the date of the hearing. The unit con-
tained 25 drivers in May 1983, when the issue in this case
arose.
On April 27, 1982, the Union filed a charge alleging,
inter alia, that H-DMC and SGI were joint employers
refusing to bargain with the Union (Case 4-CA-12889).
On June 30, 1982, the Regional Director dismissed the
complaint, noting that SGI and H-DMC were not joint
employers, that the Union had failed to make a bargain-
ing request of Respondent, and that the evidence indicat-
ed that Respondent was a successor employer to SGI.
On November 1, 1982, the General Counsel denied the
Union's appeal of the Regional Director's dismissal; on
December 8, 1982, the General Counsel denied the
Union's request for reconsideration of the denial of the
appeal.
In the meantime on July 6, 1982, the Union, claiming
that Respondent was a successor to SGI, requested Re-
spondent to begin bargaining. On July 13, 1982, Re-
spondent refused, pending the resolution of the Union's
appeal in Case 4-CA-12889, above, and pending the ex-
piration of the appeal deadline for another charge filed
by the collective-bargaining representative of parent
company H-DMC's employees (Case 4-CA-12920) alleg-
ing that the drivers were an accretion to the unit it rep-
resented. On July 19, 1982, the Union filed a further
charge alleging that Respondent was a successor to SGI
and had refused to bargain (Case 4-CA-13081).
On January 19, 1983, after the appeals in Cases 4-CA-
12889 and 4-CA-12920 were exhausted, Respondent
agreed to bargain with the Union, disclaiming, however,
any acknowledgement that the Union represented a ma-
jority of the employees in the unit. On January 24, the
Union requested withdrawal of the charge in Case 4-
CA-13081; on January 31, the Regional Director ap-
proved the request.
2. The bargaining sessions
The Union and Respondent met to negotiate on Febru-
ary 1 and 28 and April 21, 1983,' and had scheduled a
fourth meeting for May 16. The meetings took place
over this somewhat extended period largely as an accom-
modation to the schedule of Respondent's attorney.
Union Business Agent Bricker testified, without contra-
diction, that February 28 was the earliest date Respond-
ent offered for the second meeting. At this second meet-
ing, Respondent proposed that the third session occur on
one of seven dates between March 29 and April 13, an
earlier date being impossible due to its attorney's im-
pending medical treatment. On March 4 the Union sent a
letter to Respondent agreeing to meet on three of the
' All dates are in 1983 unless otherwise indicated.
dates proposed by Respondent, March 31 and April 12
and 21. However, in a March 8 reply Resporident stated
that other obligations now made it available only on
April 21. Bricker testified that at the April 21 meeting
the parties found scheduling conflicts which were mutu-
ally resolved by the May 16 date.
There is some slight disagreement regarding the length
of each meeting. Union Business Agent Bricker testified
that the first meeting lasted 2 hours, the second meeting
lasted 45 minutes, and the third meeting lasted 4-1/2
hours. Respondent's general manager Schwarz testified
that the first meeting lasted about 30 to 45 minutes, the
second lasted 2 hours, and the third lasted 3 to 4 hours.
The discrepancy is not material, as, in either case, the
parties spent approximately 7 hours in negotiations.
At the February 1 meeting, the Union submitted its
contract proposal; at the February 28 meeting Respond-
ent offered its proposal. At the end of the April 21 meet-
ing the parties had reached agreement on the following
articles: 2 1. Coverage; 3. Dues Checkoff; 5. Casuals; 7.
Leave of Absence; 10. Holidays; 11. Military Clause; 12.
Non-Discrimination/Union Activities; 13. Passengers; 14.
Meal Period; 15. Pay Period; 17. Equipment, Accident
Reports; 18. Federal, State and Municipal 'Laws; 19.
Bonds; 23. Protective Clothing and Equipment; 25. Sus-
pended Licenses; 27. Examination of ' Records; 28.
Examination/Examination and Identification; 29. Time
Sheets; 30. Management Prerogatives; 32. Death in the
Family; 34. Mileage Determination; 36. Road Expenses;
37. Fuel Time; and 38. Credit Union.
Differences remained as to the following: 2.. Shop
Conditions; 4. Discharge or Suspension; 6. Grievances; 8.
Seniority; 9. Vacations; 16. Protection of Conditions; 20.
Loss or Damage; 21. Health and Welfare Insurance/-
Health and Welfare Fund; 22. Pension Plan/Pension
Fund; 24. Employee's Bail; 26. Protection of Rights; 35.
Paid-for-Time; 39. Term of Agreement; and possibly 31.
Savings and Separability. In addition, the parties had
reached agreement as to first year wages, but not as to
wages for later years of a proposed 3-year contract.
During the negotiations the parties compromised on a
number of issues and agreed to a number of changes to
initial proposals. The May 16 meeting was scheduled for
the purpose of discussing the remaining areas in dispute.
Although the parties were, far apart with respect to two
issues, union security and a pension plan, with both
strongly adhering to their initial positions as of the end
of the third meeting, those issues were still on the table,
there is no claim that the parties had reached an impasse,
and it is clear that they had not. As Schwarz testified, at
the end of the last bargaining meeting, there was "no
question" that Respondent intended to negotiate until a
contract was reached. The Union, anticipating' a success-
ful May 16 session, posted signs after the April 21 session
announcing a union meeting to occur on May 22 for the
purpose of voting on the contract.
2 Numbers and headings were almost identical in the two proposals;
where headings differ, Respondent's heading is listed first, followed by a
slash and the Union's heading.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discontinuation of negotiations
On May 9, Respondent, by letter, informed the Union
that it was halting contract negotiations pending the out-
come of a representation case arising from the filing of a
decertification petition. Respondent noted that its with-
drawal was based not merely on the petition but on its
being "informed by a majority of the employees of this
bargaining unit that they do not want to be represented
by Teamsters Local 430 at this time" Respondent con-
tends that its determination that employees did not want
union representation was based on some generalized dis-
satisfaction with the Union expressed at a January 16
company-called meeting of the drivers; the decertifica-
tion petition filed by Joe Avantt on April 15; two peti-
tions containing the purported signatures of a total of 16
of the drivers, in support of the decertification petition;
and the knowledge that none of the unit's drivers were
currently dues paying members of the Union
a. The January 16 meeting
On January 16, Respondent held a meeting for its driv-
ers at Respondent's plant to discuss Respondent's obliga-
tion to bargain with Local 430. 3 An animated discussion
ensued, during which an undisclosed number of unnamed
drivers asked if they had "any choice in the matter as to
whether or not we want a union", if there were "any-
thing we can do on our own behalf'; and if they were
"being placed in a position that we don't have anything
to say about it" Respondent's vice president for human
relations, Hamilton, responded by telling the drivers that
they had "every freedom, whether individually or as a
group, to respond to the situation"; that they had "the
right to do on your own behalf, what you feel is neces-
sary"; and that it would be improper for the Company to
intervene. The meeting lasted approximately 2 to 2-1/2
hours. Union officials were neither invited to nor attend-
ed this meeting, although David Hartman, shop steward
under the SGI collective-bargaining agreement, was
present
b. The decertification petition
On April 15, employee Joe Avantt filed a decertifica-
tion petition with the Regional Director (Case 4-RD-
1115). On April 18, a copy of the petition was mailed by
the Board to Respondent and received on April 22 or 23
A member of the union negotiating team informed Re-
spondent, at the April 21 bargaining session, of the peti-
tion, suggesting Respondent's complicity in its filing. Re-
spondent denied prior knowledge of the petition. Around
April 25, Schwarz was approached by Avaritt who
handed him a copy of a petition in support of decertifica-
tion containing the purported signatures of 12 drivers
On May 4, Avantt filed a second decertification peti-
tion (Case 4-RD-1117), after withdrawing the first. Re-
spondent's copy was mailed on May 4 and received on
May 7 or 8. A day or two later Avaritt gave Schwarz a
copy of a petition containing the purported signatures of
3 The findings concerning this meeting are based on the uncontradict-
ed testimony of Schwarz, who was present
13 drivers, with dates alongside the names, supporting
decertification 4
c. The petitions
The first petition which Avantt gave Schwarz on
April 25 has the typewritten caption "WE THE UNDER-
SIGN ARE HARLEY-DAVIDSON DRIVERS WISH TO LET YOU
KNOW THAT WE DO NOT WANT TO BE REPRESENTED BY
THE TEAMSTERS LOCAL 430 AT THIS TIME." Below the
heading, in a column, are the following 12 signed names:
Joe K. Avantt Sr., Earle D. Snyder, Jim Heare, Earl S.
Baer Jr., Clarence Frey, Walter Almony, Ben Schmittel,
E E. Worley, Lynn C. Kaufman, R. S. Pannebaker, J.
Merle McLaughlin, and Richard A. Burk. None of the
signatures were dated.
The second petition, which Avantt gave Schwarz on
May 7 or 8, has exactly the same typewritten heading as
the first. However, below the heading are the further
typewritten captions "NAME" and "DATE" In columns
below the captions are the following 13 purported signa-
tures and handwritten dates: Earle D. Snyder 4-19-83;
Joe K Avantt Sr 4-19-83; Monte Poff 4-19-83; Rich-
ard A. Burk 4-19-83, E. E. Worley 4-19-83; W. H
Tyson 4-19-83; J. Merle McLaughlin 4-19-83, David K.
Burke 4-20-83; Clarence E. Frey 4-21-83; Earl S. Baer
4-21-83; B. H Schmittel 4-21-83; Walter S. Almony Jr.
4-23-83; and Alvin W Sprenkle 4-23-83 All 16 differ-
ent names appearing on the two petitions were names of
drivers then employed by Respondent
Schwarz made no attempt to authenticate the signa-
tures on the petitions. He testified that they looked famil-
iar to him based on his experience reviewing the drivers'
signed daily logs, that "the signatures were at a glance
those of my people," and that "I had no reason to ques-
tion them." At the hearing however, when presented
with employees' W-4 forms signed in April 1982,
Schwarz noted dissimilarities between the compared sig-
natures of Richard Burk and stated, "It might have been
a failing on my part" that he did not question the authen-
ticity of the signatures
Schwarz testified that until the hearing, when it was
called to his attention, he found nothing curious about
the fact that the dates entered on the second petition fell
between April 19 and 23 even though the need for a
second petition was not established until sometime after
the first petition was presented to him on April 24 or 25.
d. Union membership
Testimony was sharply divided over whether the ques-
tion of active union membership arose during the negoti-
ating sessions. Bricker repeatedly maintained that the
topic was not discussed; Schwarz recalls Respondent's
attorney asking the question in the context of the union-
security clause during the April 21 meeting. Schwarz re-
members Bricker admitting that "none of the people on
4 There is some apparent confusion in the testimony of Schwarz as to
the sequence of events He testified that on May 5 he was contacted by a
Board agent who told him that the petition was deficient because it
lacked dates alongside the names and asked him to contact Avaritt so
that Avaritt could remedy the deficiency It seems unlikely the events oc-
curred in the sequence described by Schwarz
HARLEY-DAVIDSON CO. 1535
the fleet force were then members on a dues paying
basis," that "they were on withdrawal cards." While
Bricker denied that this conversation occurred, he ac-
knowledged that since March or April all the drivers of
Respondent—acting on Bricker's instructions—had taken
out withdrawal cards. Bricker, at the hearing, explained
that members were encouraged to take out "honorary
withdrawal" cards for a 50-cent fee, during the period
their unit was without a contract. Once a contract was
signed, the members were expected to turn in the cards
and "pick up their dues." Members on withdrawal cards
lost some union benefits but retained the right to vote on
a new contract. Bricker claims that he explained to Re-
spondent, at negotiations, none of the mechanics of this
process as he claimed that no discussion was held con-
cerning union membership.
I have credited Schwarz whose version included spe-
cific details which were acknowledged at the hearing to
be true (no drivers were dues-paying members; all were
on withdrawal cards) and which were hardly self-serv-
ing, as these details, in the absence of testimony to the
contrary by Schwarz, indicate that Schwarz was aware
that the drivers had maintained their affiliation with the
Union.
B. Concluding Findings
1. Did Respondent voluntarily recognize the Union?
In its January 19 letter to the Union, Respondent
stated that it agreed to bargain as a result of the Region-
al Director's opinion that Respondent "may be a succes-
sor employer of Service Group, Incorporated" and noted
that "[w]e do not acknowledge that Teamsters Local 430
represents a majority of the employees in the bargaining
unit." In its brief, Respondent argues that it agreed to
bargain only because it "inherited that obligation by
virtue of the Board's successorship rule enunciated in
NLRB v. Burns Security Services, 406 U.S. 272 (1972)."
Under Burns, absent a reasonably based good-faith
doubt of an incumbent union's majority, a successor em-
ployer must recognize the continuing representative
status of the union within an appropriate unit. See Land-
mark International Trucks, 257 NLRB 1375, 1378 (1981).
While Respondent may have refused to acknowledge
expressly the Union's majority status, it clearly granted
voluntary recognition to it as the exclusive representative
of its employees. It thereby acknowledged that it lacked
a reasonably based good-faith doubt of the Union's ma-
jority sufficient to overcome the presumption that the
Union's majority continued among Respondent's employ-
ees after it succeeded SGI. Thus, Respondent acknowl-
edged that the Union was presumed to represent a ma-
jority of its drivers and voluntarily recognized the Union
as the exclusive representative of its employees.
2. Was the Union's majority status rebuttable before
a reasonable period of bargaining time had elapsed?
Respondent contends that the settled rule, requiring an
employer to bargain for a reasonable period with a vol-
untarily recognized union, does not apply to successor
employers who recognize incumbent unions after expira-
tion of the certification year. Rather, Respondent con-
tends, in such a case the employer may withdraw recog-
nition and cease bargaining whenever it forms a reason-
ably based good-faith doubt of the union's continuing
majority.
In Landmark International Trucks, 257 NLRB 1375
(1981), vacated and remanded 699 F.2d 815 (6th Cir.
1983), the Board held otherwise, stating: "We can dis-
cern no principle that would support distinguishing a
successor employer's bargaining obligation based on vol-
untary recognition of a majority union from any other
employer's duty to bargain for a reasonable period." 257
NLRB at 1375 fn. 4.
The court of appeals disagreed, and rejected the
Board's holding. It reasoned as follows (699 F.2d at 818-
819):
There is no reason to treat a change in ownership
of the employer as the equivalent of a certification
or voluntary recognition of a union following an or-
ganization drive. In the latter cases the employees
must be given an opportunity to determine the ef-
fectiveness of the union's representation free of any
attempts to decertify or otherwise change the rela-
tionship. However, where the union has represented
the employees for a year or more a change in own-
ership of the employer does not disturb the relation-
ship between employees and the union. While the
relationship between employees and employer is a
new one, the relationship between employees and
union is one of long standing. A successor's duty to
continue recognition under such circumstances is no
different from that of any other employer after the
certification year expires. Recognition under these
circumstances carries with it no irrebuttable pre-
sumption of continued majority status. When a suc-
cessor employer recognizes a union which has been
certified as the exclusive representative of employ-
ees of the predecessor employer for one year or
more, there is a rebuttable presumption only that
the union continues to have the support of a majori-
ty of the employees.
While the Board did not articulate the basis for its
holding, there does appear to be a substantial basis for it.
Although the court saw the relationship between the em-
ployees and the union as the only critical element and
stated that a change in ownership did not disturb that re-
lationship, the rationale for providing a reasonable period
for bargaining following voluntary recognition draws
from the rationale for the Board's certification year rule
and focuses not only on the relationship between em-
ployees and union but on the relationship between union
and employer and the effect upon bargaining of rules
which permit withdrawal of recognition at any time.
Thus, in Ray Brooks v. NLRB, 348 U.S. 96 (1954), among
the reasons advanced and found persuasive to support
the certification year rule were:
(c) A union should be given ample time for car-
rying out its mandate on behalf of its members and
should not be under exigent pressure to produce
hothouse results or be turned out.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) It is scarcely conducive to bargaining in good
faith for an employer to know that, if he dillydallies
or subtly undermines, union strength may erode and
thereby relieve him of his statutory duties at any
time, while if he works conscientiously toward
agreement, the rank and file may, at the last
moment, repudiate their agent. [348 U.S at 100.]
In • Keller Plastics Eastern, Inc., 157 NLRB 583, 588
(1966), the Board relied on Brooks and Franks Bros. Co.
v. NLRB, 321 U.S. 702 (1944), in holding that "the par-
ties must be afforded a reasonable time to bargain and to
execute the contracts resulting from such bargaining"
following voluntary recognition. In NLRB v. Universal
Gear Service Corp., 394 F.2d 396 (6th Cir 1968), enfg.
157 NLRB 1169 (1966), the court of appeals agreed with
the Board that the above quoted reasons from Brooks
"have relevance to the problem presented in the instant
case and support its determination that only if the parties
can rely on the continuing representative status of the
lawfully recognized union, at least for a reasonable
period of time, can bargaining negotiations succeed and
the policies of the Act be effectuated." 394 F.2d at 398.
See also NLRB v. Montgomery Ward & Co., 399 F 2d 409
(7th Cir. 1968).
The focus on the bargaining relationship between
union and employer is most strongly stated in the deci-
sion of the administrative law judge, adopted by the
Board, in San Clemente Publishing Corp., 167 NLRB 6, 8
(1967):
[lit is . . . easy to visualize the obstruction to effec-
tive bargaining and denigration of statutory policy
that could result if the employer in any of the given
situations were permitted to repudiate his obligation
solely because the union in question has lost majori-
ty status. Fluctuations in a labor force may cost a
union its majority in the midst of pending bargain-
ing; restore it a week or two later; remove it once
more in another week or two; and return it still
again after some such period . . the result could
be negotiations by fits and starts tailored to repeated
fine measurements of a union's numbers, with at-
tendant haggling over a range of matters such as
. . . real or fancied problems of unit inclusion of
new employees, or of the validity of the form in
which they have designated the union; and accom-
panied by provocative pressures by one side or the
other to compel agreement to a position, or dilatory
dodges to prevent one, conditioned by the state of
the union's numerical support in the unit at any
given time. . . . This type of jousting would make
for shackles and climates of friction in the bargain-
ing process and would tend to frustrate the statuto-
ry aim of promoting industrial peace and stability
As the Declaration of Policy in Section 1(b) of the
Act recognizes, the relationships with which the Act
deals are triangular and interrelated The relationship be-
tween employees and union is not independent of the re-
lationship between union and employer In the case of a
successor, while the same union represents the same em-
ployees, the introduction of a successor employer means
that the established contractual relationship is ended. The
negotiations between union and successor employer are
not like the negotiation of a typical renewal agreement
with a continuing employer where only selected issues
are usually raised in the context of an otherwise estab-
lished contractual framework. Rather, as the facts in this
case show, all contract provisions are open, and the ne-
gotiations are in fact negotiations for an initial agree-
ment. Absent protection of the bargaining relationship
for a reasonable period of time following recognition by
a successor employer, the same adverse impact on the
bargaining process would follow as in the case of initial
recognition.
While the Board's rule prevents withdrawal for a rea-
sonable time following recognition, it does not bar an
employer from denying recognition where a good-faith
doubt is based on circumstances existing at the time rec-
ognition is sought. Holiday Inn of Niles Michigan, 241
NLRB 555, 559 (1979). The right to withdraw is lost
only after recognition has been granted where the good-
faith doubt is based on what has happened since negotia-
tions commenced, either fluctuations in the work force
or temporary swings in union support that may them-
selves reflect the momentary status of collective-bargain-
ing negotiations. After a reasonable time for bargaining
has elapsed, the right to withdraw recognition based on
a good-faith doubt is restored. Thus, the right to with-
draw recognition is suspended only for a reasonable
period of time in which the interest in promoting collec-
tive bargaining outweighs it.
Here, 3 months elapsed between Respondent's takeov-
er of the operations previously carried on by SGI and
the Union's first claim of the right to represent the em-
ployees of Respondent as successor to SGI. Another 6
months elapsed before Respondent agreed to bargain
with the Union. During the entire period Respondent
made no claim that it had a good-faith doubt of the
Union's majority. After that 9-month hiatus a bargaining
relationship was rightfully established, and it is not ex-
cessively restrictive of employers' or employees' rights
to require that the bargaining relationship "be permitted
to exist and function for a reasonable period in which it
can be given a fair chance to succeed," 5 without chal-
lenge based on doubts arising after bargaining began.
Accordingly, I find that after Respondent agreed to
bargain with the Union in January 1983, it was obligated
to bargain for a reasonable period of time without regard
to any good-faith doubt it might acquire as to the
Union's continuing majority.
3. Did Respondent bargain for a reasonable period
before withdrawing recognition?
In determining what constitutes a reasonable bargain-
ing period "[t]here are no rules" and "each case must
rest upon its own individual facts." Thus, "reasonable
time does not depend upon either the passage of time or
the number of calendar days on which the parties met,"
but "the issue turns on what transpired during [the]
5 Franks Bros Co v NLRB, supra at 705, quoted with approval in
NLRB v Gissel Packing Co. 395 US 575, 613 (1969)
HARLEY-DAVIDSON CO. 1537
meetings and what was accomplished therein." Brennan's
Cadillac, Inc., 231 NLRB 225, 226 (1977). The fact that
the parties reached impasse can cause an otherwise short-
er time to be seen as reasonable. N .1. MacDonald &
Sons, Inc., 155 NLRB 67, 71 (1965). However, "General-
ly, the Board will not find that an impasse has occurred
unless the negotiations between the parties have been ex-
haustive." Betlem Service Corp., 268 NLRB 354 (1983).
Here, Respondent does not contend that impasse had
been reached, but a suggestion was raised that irreconcil-
able differences existed between the parties as to union
security and pensions. It is clear, however, that bargain-
ing had been anything but exhaustive. The parties were
negotiating for what was for them an initial contract. In
approximately 7 hours of negotiations considerable
progress was made with many compromises and changes
in initial proposals.
At the conclusion of the April 21 meeting all unre-
solved issues were still on the table, both sides were still
bargaining on many issues, and both parties intended to
negotiate until a contract was reached. The Union was
clearly optimistic; after the April 21 meeting the Union
posted signs announcing that a vote on the contract
would occur on May 22 following the scheduled May 16
session. While the 7 hours of negotiations were spread
over a 3-month period, the timing of negotiating sessions
was the result of scheduling conflicts and did not reflect
any exhaustion of prospects for agreement. Based on the
orderly and substantial progress in the three bargaining
sessions that occurred and the indication that both par-
ties looked forward to an equally fruitful fourth bargain-
ing session, I conclude that a reasonable period for bar-
gaining had not elapsed and, regardless of the difficulties
that may have remained in the way of agreement on all
issues, the parties were nowhere near impasse.
Accordingly, I find that Respondent was obligated to
continue bargaining with the Union when it withdrew
recognition from the Union and that Respondent's with-
drawal from bargaining violated Section 8(a)(1) and (5)
of the Act.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent violated Section
8(a)(1) and (5) of the Act by refusing to bargain with the
Union as the exclusive bargaining representative of the
unit comprising its truckdrivers, I shall recommend that
Respondent be ordered, upon request, to bargain for a
reasonable time with the Union as the exclusive repre-
sentative of its employees in the unit and, if an under-
standing is reached, embody such understanding in a
signed agreement.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Harley-Davidson Transportation Co., Inc. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 430, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All truckdrivers employed by Respondent who are
assigned to perform services at its York, Pennsylvania fa-
cility, excluding all clerks, dispatchers, guards, and su-
pervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times since April 1, 1983, the Union has been,
and now is, the exclusive representative of the employees
in said unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to recognize or bargain with the Union
at all times on and after May 9, 1983, with respect to
rates of pay, wages, hours of .employment, and other
terms and conditions of employment for the employees
in the appropriate unit described above, Respondent en-
gaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(5) and (1) and 2(6)
and (7) of the Act.
[Recomended Order omitted from publication.]