## Facts

- A union was certified as the exclusive bargaining representative of a Garden Ridge retail employee unit on April 22, 2002.
- The parties began first-contract negotiations on May 15, 2002 and bargained periodically through April 2003 without reaching a final agreement.
- During negotiations, the union repeatedly requested more frequent bargaining sessions; Garden Ridge summarily refused and gave no explanation.
- The employer advanced proposals including a broad management-rights clause and a clause requiring the union to waive organizing rights as to other employee units.
- After the last bargaining session, a majority of unit employees signed a petition stating they no longer wanted union representation.
- Relying on the petition, Garden Ridge withdrew recognition from the union, asserting a good-faith belief that the union had lost majority support.
- An ALJ found Garden Ridge violated NLRA § 8(a)(5) by surface bargaining, refusing to meet at reasonable times, and unlawfully withdrawing recognition; Garden Ridge filed exceptions to the Board.

## Issues

1. Whether Garden Ridge violated § 8(a)(5) by failing to bargain in good faith through an unexplained refusal to meet more frequently at reasonable times.
2. Whether Garden Ridge’s bargaining positions and conduct, including insistence on a broad management-rights clause and an organizing-waiver clause, constituted unlawful surface bargaining.
3. Whether a withdrawal of recognition based on objective evidence of loss of majority support is lawful when the employer previously committed a § 8(a)(5) violation, if the employee disaffection was unrelated to that violation.

## Decision

- The Board affirmed that Garden Ridge violated § 8(a)(5) by failing to bargain in good faith through an unexplained, repeated refusal to meet more frequently.
- The Board reversed the ALJ’s findings of surface bargaining and reversed the related findings that insisting on the management-rights and organizing-waiver clauses was unlawful.
- The Board held the withdrawal of recognition was lawful because it was based on objective evidence of loss of majority support and the disaffection was not caused by, or tainted by, the scheduling-related bargaining violation.

## Legal Principles

- The duty to bargain in good faith under § 8(d) and § 8(a)(5) includes an obligation to meet at reasonable times; repeated, unexplained refusals to increase bargaining frequency during first-contract negotiations may constitute bad-faith bargaining.
- Surface bargaining is determined from the totality of conduct; firm positions, including proposals for broad management-rights language or limits on union organizing activity, are not per se unlawful without evidence of an intent to avoid agreement.
- A proven § 8(a)(5) violation does not automatically require continued recognition or a bargaining order when the employer later withdraws recognition based on objective evidence of majority disaffection that occurred for reasons independent of the violation.

## Conclusion

The Board found a limited bad-faith bargaining violation based on Garden Ridge’s unreasonable scheduling posture, but rejected broader claims of surface bargaining and held that a later withdrawal of recognition could be lawful when supported by untainted, objective evidence that the union lost majority support.


Garden Ridge Mgmt., Inc., 347 N.L.R.B. 131 (2006)