Embarq Corporation, a wholly-owned Subsidiary of CENTURYTEL, Inc., d/b/a CENTURYLINK

National Labor Relations Board - Board Decisions

Sep 14, 2012

358 N.L.R.B. 1192 (N.L.R.B. 2012)

1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

358 NLRB No. 134
Embarq Corporation, a wholly-owned subsidiary of
Centurytel, Inc., d/b/a Centurylink and Interna-
tional Brotherhood of Electrical Workers Local
Union #396. Cases 28–CA–022804, 28–CA–
022849, and 28–CA–023021
September 14, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND BLOCK
The central issue in this case is whether the Respond-
ent violated Section 8(a)(5) of the Act by refusing to bar-
gain with the Union over its decision to eliminate a work
classification and consequently discharge nine retail
cashiers.1
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,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3 The material facts are fully set out
in the judge’s decision.
A. The Respondent’s Duty to Bargain over its Decision
We agree with the judge that the Respondent’s refusal
to bargain over the decision to eliminate the retail cashier
classification and discharge the cashiers was unlawful.
Absent contractual authority or other waiver by the un-
ion, where an employer discharges unit employees and
transfers their work to other unit employees in order to
reduce labor costs, and the work remains essentially the
same, the action is a mandatory subject of bargaining.
Holmes & Narver/Morrison-Knudsen, 309 NLRB 146,
147–148 (1992). Further, an employer cannot unilateral-

1 On August 24, 2010, Administrative Law Judge George
Carson II issued the attached decision. The Respondent, Embarq Cor-
poration, a wholly owned subsidiary of Centurytel, Inc., d/b/a Centu-
rylink, filed exceptions and the General Counsel filed cross-exceptions,
and each filed supporting, answering, and reply briefs.
2 The Respondent has excepted to the judge’s findings that it unlaw-
fully withheld information requested by the Union, but neither specifies
the nature of its exceptions nor addresses them in its briefs. We there-
fore deny these exceptions under Sec. 102.46(b) of the Board’s Rules,
which requires an excepting party to “concisely state the ground of
[each] exception.” To satisfy this requirement, the party must do more
than cite the findings excepted to. E.g., Metropolitan Transportation
Services, 351 NLRB 657, 657 fn. 5 (2007). Even absent this procedural
failure, however, we would reject this exception for the reasons stated
by the judge.
3 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s d remedy by requiring that
backpay shall be paid with interest compounded on a daily basis. We
shall also modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010).
ly eliminate a work classification that is established in a
collective-bargaining agreement. Wackenhut Corp., 345
NLRB 850, 852 (2005); Mt. Sinai Hospital, 331 NLRB
895, 895 fn. 2 (2000), enfd. 8 Fed.Appx. 111 (2d Cir.
2001); Holy Cross Hospital, 319 NLRB 1361, 1361 fn. 2
(1995).
The Respondent had a duty to bargain over its decision
in this case, notwithstanding that the management-rights
clause in the parties’ collective-bargaining agreement
gave the Respondent the right to “classify,” “reassign,”
“lay off,” and “discharge” employees. As the judge cor-
rectly found, this clause did not authorize the Respondent
to unilaterally eliminate an entire work classification and
discharge all the employees within it. In the cases cited
by the Respondent, the contractual provisions that were
held to privilege unilateral actions contained significantly
broader or more explicit language than the clause at issue
here.4
Nor, as the judge found, did the agreement’s layoff
provision privilege the Respondent’s unilateral action.
The Respondent, by its own admission, did not even con-
sider the employees’ seniority, as the layoffs article
would have required if it were applicable. In addition,
the Respondent had earlier made—and the Union had
rejected—a proposal for a modification of the layoff arti-
cle that would at least arguably have authorized the Re-
spondent’s action.5
Finally, the Union did not waive its right to bargain
over the decision by any of its actions.6 On August 26,

4 Baptist Hospital of East Tennessee, 351 NLRB 71 (2007) (hospital
staffing for holiday shift; employer could “assign . . . employees . . .
determine and change starting times, quitting times and shifts . . . [and]
determine or change the methods and means by which its operations are
to be carried on”); Good Samaritan Hospital, 335 NLRB 901 (2001)
(hospital staffing matrix; employer could “decide the number of em-
ployees to be assigned to any shift or job . . . float employees from one
working area to another working area, [and] determine appropriate
staffing levels”); Continental Telephone Co., 274 NLRB 1452 (1985)
(attendance policy; employer could “formulate and change the working
schedules” and “change the rules and regulations . . . governing the
conduct of employees”); Emery Industries, 268 NLRB 824 (1984)
(absentee policy; employer could discipline employees for “neglect of
duty”); Consolidated Foods Corp., 183 NLRB 832 (1970) (transfer of
driving operation to different site; employer could “change, modify or
cease its operation, processes, or production, in its discretion, and . . .
be the sole judge of all factors involved including . . . the efficiency,
usefulness and practicability of . . . processes . . . and personnel”); Ador
Corp., 150 NLRB 1658 (1965) (closing line of operations; employer
could “abolish or change existing jobs, increase or decrease the number
of jobs, change . . . processes, products, equipment and operations”).
5 This evidence demonstrates the error in our dissenting colleague’s
assertion that the Respondent’s action was no more than a permissible
layoff and reassignment of work within the terms of the contract.
6 Only after the Union had filed unfair labor practice charges did the
Respondent assert that the Union had acquiesced or waived its bargain-
ing rights by its actions. Before that point the Respondent cited only
the terms of the contract as its basis for refusing to bargain.
CENTURYLINK 1193
2009,7 when the parties were bargaining for a new con-
tract and the Respondent first indicated that it might ter-
minate the cashiers, the Union immediately asserted its
intent to demand bargaining over the prospective deci-
sion and its effects at the proper time. The Union gave
no indication that it was retreating from this position the
following day, when it assented to the Respondent’s re-
quest to keep the matter confidential until the decision
was finalized.
Moreover, none of the Union’s actions at the next bar-
gaining session on September 15 were inconsistent with
its stated intent to demand decision bargaining. First and
most important, the Union was not required to demand
actual bargaining at any point before the Respondent
confirmed that the decision would be implemented on a
specific date. A union’s responsibility to demand bar-
gaining is not triggered when the employer indicates only
“future plans about which the timing and circumstances
are unclear.”8 As of September 15, the Respondent had
not specified when its proposed action would be imple-
mented.
Second, it was reasonable for the Union to request in-
formation concerning the prospective action and to dis-
cuss the prospective action’s implementation at the Sep-
tember 15 bargaining session, even if it still intended to
demand decision bargaining. Because the date of im-
plementation was unknown to the Union before October
1, and the Respondent had not agreed to bargain over the
decision, the Union needed as much information as it
could obtain to prepare not only for decision bargaining
but also for the clear possibility that the Respondent
would act without bargaining.
Third, it was also reasonable for the Union to ask the
Respondent to make an “official announcement” of its
intent to the employees who would be affected before the
upcoming contract ratification vote.9 The employees had
a clear interest in receiving advance notice of the Re-
spondent’s intent even if the Union intended to bargain
over the decision, and the Union had a clear interest in
having that notice provided so that employees would not
believe the Union had withheld the information from
them during the ratification vote.10 As noted above, from

7 All subsequent dates are in 2009.
8 Pan American Grain Co., 343 NLRB 318, 338 (2004), enf. denied
on other grounds 448 F.3d 465 (1st Cir. 2006); Oklahoma Fixture Co.,
314 NLRB 958, 960–961 (1994), enf. denied on other grounds 79 F.3d
1030 (10th Cir. 1996).
9 The judge correctly rejected the Respondent’s mischaracterization
of the Union’s request for preratification notice to the affected cashiers
as having “asked the Respondent to proceed” with their elimination.
10 An email from the Respondent’s own chief negotiator to upper
management concerning the Union’s request acknowledged: “Remem-
ber we asked the Union to keep the info confidential which they have at
August 26, when the Respondent first raised the possibil-
ity of eliminating the cashiers, until October 1, when the
Respondent confirmed that it intended this to happen on
December 4, the Union—at the Respondent’s own re-
quest—kept that possibility confidential. Because the
matter was not made public for a period of weeks at the
behest of the Respondent, the Union’s later request that
the Respondent give the employees notice of its intention
did not signal the Union’s acquiescence or waiver of its
right to bargain. Indeed, it would be entirely inequitable
to treat the Union’s compliance with the Respondent’s
own request for confidentiality as having given the Re-
spondent a license to act unilaterally.11
For all of those reasons, we affirm the judge’s finding
that the Respondent violated Section 8(a)(5) and (1) by
refusing to bargain over its decision to eliminate the re-
tail cashier position and lay off all of its retail cashiers.
In addition, we agree with the judge that the Respondent
independently violated Section 8(a)(5) and (1) by elimi-
nating that classification, which was embodied in the
parties’ collective-bargaining agreement, without the
Union’s consent. See Mt. Sinai Hospital, supra at 895 fn.
2.12
B. Effects Bargaining
The General Counsel has cross-excepted to the judge’s
dismissal of the complaint allegation that the Respondent
unlawfully refused to bargain over the decision’s effects.
However, the effects were clearly bound up in the
threshold dispute, and we have found that the Respond-
ent is obligated to bargain over the decision itself. The
effects may also be changed in the course of the Re-
spondent’s compliance with our remedial order to bar-
gain. It would therefore be premature for us to reach the
effects allegation at this time, and we deny the cross-
exception for this reason.13
C. Unlawful Surveillance
We also agree with the judge that the Respondent vio-
lated Section 8(a)(1) several months after the elimination
of the cashiers, when it photographed some of its em-
ployees while they were participating in an informational

this point but it would be difficult for them to continue to keep the
confidentiality as they look for a vote on the new tentative agreement.”
11 Moreover, although the Union’s request to bargain on October 13
did not follow immediately upon the Respondent’s October 1 notice,
the request was not untimely since the stated date of implementation
was 2 months later.
12 Having reached the above conclusions based on well established
Board precedent, we find it unnecessary to comment on our colleague’s
endorsement of the “contract coverage” theory of waiver, which the
Board rejected in Provena St. Joseph Medical Center, 350 NLRB 808,
811–815 (2007).
13 However, we do not agree with the judge that the Union “never
sought to bargain” about effects.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
picket line on a public sidewalk outside one of its stores.
There is no dispute that the Respondent videotaped and
took pictures of the picket line and was seen doing so by
those employees. The Respondent does not contend that
any violence or invasion of its property occurred or was
threatened, and it therefore had no legitimate interest in
filming the picket line.14
ORDER
The Respondent, Embarq Corporation, a wholly-
owned subsidiary of Centurytel, Inc., d/b/a Centurylink,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Photographing and videotaping employees engaged
in protected concerted union activity.
(b) Failing and refusing to bargain with the Union re-
garding its decision to eliminate the unit classification of
retail cashier and eliminating that classification without
the consent of the Union.
(c) Refusing to provide the Union with requested rele-
vant information relating to its decision to eliminate the
job classification of retail cashier, or the effects of that
decision.
(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) Within 14 days of this Order, restore the classifica-
tion of retail cashier and offer reinstatement to Jacqueline
Brownlee, Kathryn Dawkins, Pamela DePalma, Thomas
England, Debra Mercer, Peggy Mills, Rebecca Ribaudo,
Joyce Smith, and Lynn Taylor.
(b) Make whole Jacqueline Brownlee, Kathryn Daw-
kins, Pamela DePalma, Thomas England, Debra Mercer,
Peggy Mills, Rebecca Ribaudo, Joyce Smith, and Lynn
Taylor plus interest as set forth in the remedy section of
the decision.
(c) Provide the Union with all documents requested in
its information request dated December 15, 2009.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,

14 The General Counsel cross-excepts to the judge’s failure to find
that the Respondent’s videotaping of the picket line, along with its
photographing, was unlawful. Given the judge’s fact findings, the
General Counsel appears correct that this failure was inadvertent. We
will modify the Order and notice accordingly.
necessary to determine the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in the Las Vegas, Nevada area copies of the
attached notice marked “Appendix.”15 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other means, if the Respondent cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed a facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since November 16, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HAYES, dissenting in part.
The parties’ collective-bargaining agreement for a unit
of the Respondent’s clerical employees clearly and un-
mistakably recognizes the exclusive management right to
classify, reassign, lay off, and discharge employees, and
it provides for 2 weeks advance notice of any non-
emergency layoffs. On December 4, 2009, the Respond-
ent unilaterally laid off all nine employees in the bargain-
ing unit classification of retail cashier, and it reassigned
their work to employees in the unit classification of retail
store consultant. Prior to doing so, the Respondent gave
the requisite advance notice of layoffs to employees and
the Union.
In other words, the Respondent did exactly what the
parties’ contract expressly permitted it to do. I reach this
conclusion even under the Board’s waiver standard,
which requires that contractual language permitting uni-

15 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.”
CENTURYLINK 1195
lateral changes in employees’ terms and conditions of
employment must be “clear and unmistakable.”1
The judge and my colleagues disagree. In their view,
the Union did not waive its right to bargain about the
Respondent’s decision because the management-rights
provisions of the contract do not specifically permit a
layoff and reassignment of work that affects all employ-
ees in a particular bargaining unit classification. In my
view, their contractual interpretation cannot be recon-
ciled with the clear and express terms of the contract. I
would reverse the judge and dismiss the complaint alle-
gation of an unlawful refusal to bargain about the layoff
decision.2
Inasmuch as I would find the Respondent’s conduct
lawful under the waiver analysis, it should be unneces-
sary here to address the Respondent’s argument that the
appropriate standard for determining whether there was a
decisional bargaining violation in this case should be the
“contract coverage” standard adopted by the United
States Courts of Appeals for the District of Columbia,
First, and Seventh Circuits,3 and endorsed by several
dissenting Board members,4 rather than the Board’s
“clear and unmistakable waiver” standard. However, I
take this opportunity to endorse the “contract coverage”
standard and to express my view that the result reached
by the majority here is a prime example of the flaws in-
herent in the “clear and unmistakable” standard.
Waiver should not be an issue here. The parties have
bargained about the mandatory subjects of classification,
reassignment, lay off, and discharge, and they have in-
cluded specific language referencing those actions in
their contract. The Union has exercised its statutory right
to bargain about such matters. Should issues arise mid-
contract concerning the application of bargained-for
terms in particular factual settings, those issues are grist

1 See Provena Hospitals, 350 NLRB 808 (2007), and cases cited
there.
2 I would also dismiss the corollary effects bargaining and infor-
mation request allegations in the complaint. I find no need to pass on
whether, apart from the contract language, the Union’s statements and
conduct during negotiations for the agreement that went into effect on
October 26, 2009, are an independent basis for finding waiver of the
right to bargain about the layoffs.
I note that I join my colleagues in finding that the Respondent’s pho-
tographing and videotaping of picketing former employees was unlaw-
ful.
3 Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992); Dept.
of the Navy v. FLRA, 962 F.2d 48 (D.C. Cir. 1992); NLRB v. Postal
Service, 8 F.3d 832 (D.C. Cir. 1993); Bath Marine Draftsmen’s Assn. v.
NLRB, 475 F.3d 14, 25 (1st Cir. 2007).
4 Provena Hospitals, supra at 816–818 (Battista, dissenting); Cali-
fornia Offset Printers, 349 NLRB 732, 737 (2007) (Schaumber, dis-
senting); Dorsey Trailers, Inc., 327 NLRB 835, 836–837 (1999) (Hurt-
gen, dissenting); Exxon Research & Engineering Co., 317 NLRB 675,
676–677 (1995) (Cohen, dissenting).
for an arbitrator’s mill, or the parties can litigate the mat-
ter in court. The Board has no special expertise and is
entitled to no deference in the interpretation of collec-
tive-bargaining agreements.
My colleagues’ waiver approach—which admittedly is
the approach taken by the Board for many years now—
so narrowly and strictly defines the coverage of a con-
tract term as to require that it specifically address a par-
ticular factual scenario. As the D.C. Circuit has ob-
served, the problem with this approach is that it imposes
the impossible task of requiring parties to bargain with
specificity about the unforeseen.5 Accordingly, a negoti-
ated contract provision becomes merely a starting point
for continuing negotiations during the term of a contract
about the application of the provision. Rather than pro-
tecting statutory bargaining rights, this outcome is con-
trary to the statutory policy underlying the enactment of
Section 8(d), intended to give finality to collective-
bargaining agreements.
In short, applying extant waiver law, I would dismiss
the complaint allegations relating to the layoffs of retail
cashiers and reassignment of their work to other unit
employees. However, I add my voice to those who ad-
vocate changing extant law by adopting the “contract
coverage” standard for analyzing allegations of this type.
Doing so would appropriately limit the Board’s role in
contract interpretation and better serve statutory policy.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT photograph or videotape employees who
are in engaging in protected concerted union activity
without proper justification.

5 “[I]t is naive to assume that bargaining parties anticipate every hy-
pothetical grievance and purport to address it in their contract. Rather,
a collective bargaining agreement establishes principles to govern a
myriad of fact patterns.” NLRB v. Postal Service, supra at 838.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
WE WILL NOT fail and refuse to bargain with Interna-
tional Brotherhood of Electrical Workers Local Union
#396, AFL–CIO, the Union, regarding any decision to
eliminate a unit classification and WE WILL NOT eliminate
a unit classification without the consent of the Union.
WE WILL NOT refuse to provide the Union with re-
quested relevant information relating to our decision to
eliminate the job classification of retail cashier, or the
effects of that decision.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days of the Board’s order, restore
the classification of retail cashier and offer reinstatement
to Jacqueline Brownlee, Kathryn Dawkins, Pamela De-
Palma, Thomas England, Debra Mercer, Peggy Mills,
Rebecca Ribaudo, Joyce Smith, and Lynn Taylor.
WE WILL make whole Jacqueline Brownlee, Kathryn
Dawkins, Pamela DePalma, Thomas England, Debra
Mercer, Peggy Mills, Rebecca Ribaudo, Joyce Smith,
and Lynn Taylor, plus interest as set forth in the remedy
section of the Board’s decision.
WE WILL provide the Union with all documents re-
quested in its information request dated December 15,
2009.
EMBARQ CORPORATION, A WHOLLY-OWNED
SUBSIDIARY OF CENTURYTEL, INC., D/B/A
CENTURYLINK

Darlene Haas Awada, Esq., for the General Counsel.
James T. Winkler, Esq., for the Respondent.
Jesse Newman, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on June 29 and 30, 2010, pur-
suant to an amended consolidated complaint that issued on
January 27, 2010.1 The complaint alleges that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act by
photographing and videotaping employees who were picketing,
violated Section 8(a)(5) of the Act by failing to provide the
Union with requested relevant information, and violated Sec-
tion 8(a)(5) of the Act by laying off its retail cashier employees.
The Respondent’s answer denies any violation of the Act. I find
that the Respondent violated the Act substantially as alleged in
the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

1 All dates are in 2009, unless otherwise indicated. The charge in
Case 28–CA–022804 was filed on December 7, the charge in Case 28–
CA–022849 was filed on January 4, 2010, and the charge in Case 28–
CA–023021 was filed on April 29, 2010.
by the General Counsel and the Respondent I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Embarq Corporation, a wholly-owned sub-
sidiary of Centurytel, Inc., d/b/a Centurylink, hereinafter called
the Company, is a Delaware corporation with offices in Las
Vegas, Nevada, engaged in the business of furnishing telephone
and other communication services. The Respondent annually
derives gross revenues in excess of $100,000 and performs
services valued in excess of $50,000 in States other than the
State of Nevada. The Respondent admits, and I find and con-
clude, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Brotherhood of Electrical Workers Local Union #396,
AFL–CIO, the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Embarq or its predecessors initially provided land line tele-
phone service in multiple states including the Las Vegas, Ne-
vada, metropolitan area. At one point Embarq was a subsidiary
of Sprint, at which time it also offered cellular telephone ser-
vice. Sprint divested itself of Embarq, and Embarq was ac-
quired by, and is now a subsidiary of, Centurytel, which mar-
kets its services as Centurylink. The Company no longer pro-
vides cellular telephone service, but does provide high speed
internet and, through another company, satellite television.
The Union was certified as the clerical employees’ collec-
tive-bargaining representative on November 2, 1954, and has,
since that date, been recognized as the exclusive collective-
bargaining representative of unit employees by the Company or
its various predecessors. In the Las Vegas area there are two
units, a plant unit and a clerical unit. The Section 8(a)(1) alle-
gation regarding photographing and videotaping of employees
who were picketing relates to the plant unit. The Section
8(a)(5) allegations herein arise from the Company’s elimination
of the position of retail cashier in the clerical unit and refusal to
provide requested information with regard to the elimination of
those positions.
There is no dispute regarding the facts relating to the picket-
ing and there are only minor disputes regarding the facts related
to the layoffs. I shall first deal with the Section 8(a)(1) allega-
tion relating to picketing and then address the central issue in
this case, the layoffs.
B. The Section 8(a)(1) Allegation
On April 22, 2010, over 100 members of various local un-
ions, including members of Local 396 who were employed by
the Company, picketed the Company’s retail store located in
Henderson, Nevada, a suburb of Las Vegas. The Union an-
nounced the informational picketing, which was to protest “dif-
ficult bargaining with the Company, and . . . problems with . . .
grievances,” to its members at meetings and by email. Law
CENTURYLINK 1197
enforcement authorities were notified in advance of the picket-
ing, and the Company learned that it was to occur.
The Respondent stipulated that, for purposes of this proceed-
ing, Shauna Slayback was an agent of the Respondent and “that
she took the photographs” of the picketing. Photographs and a
videotape produced pursuant to subpoena reveal that photo-
graphs and videotape taken of the picketing by the Company
included employees of the Respondent. Anthony Gates, area
manager customer service for the Company, also photographed
the picketing, but the record does not establish that any photo-
graph of a company employee was taken by Gates rather than
Slayback. The Union also took photographs of the picketing
event. Jesse Newman, senior assistant business manager of the
Union, testified that the Union received “calls from employees
that were concerned about retaliation because of the filming”
conducted by the Company. The Union, therefore, on its web-
site, posted a photograph in which only one individual was
identifiable, Jessica Toroczy, who was employed by the Union
as a secretary.
The picketing took place on a public sidewalk adjacent to the
parking lot of the retail store. There is no contention or evi-
dence of trespass, misconduct, or blocking of entry.
The Respondent argues that, insofar as news media had been
informed of the event, “every participant in the event could
reasonably anticipate that he or she could end up on the 10:00
news.” Strikes and informational picketing are public events
that often result in coverage by news media. Whether the news
media were notified of the event by the Union is immaterial.
Employee expectations are not the criteria upon which a viola-
tion of the Act is predicated. Board precedent is clear that “ab-
sent proper justification the photographing of employees en-
gaged in protected concerted activities violates the Act because
it has a tendency to intimidate.” Mercy General Hospital, 334
NLRB 100, 105 (2001), citing F. W. Woolworth Co., 310
NLRB 1197 (1993). The determination of the Union not to
publish photographs that it had taken of the picketing in which
individual employees were identifiable because of concerns of
retaliation expressed to Business Agent Newman confirm the
validity of Board precedent.
The Respondent, by photographing employees engaged in
protected concerted union activity violated Section 8(a)(1) of
the Act.
C. The 8(a)(5) Allegations
1. Facts
a. Retail store operations
The Company provides land line telephone service with var-
ious options such as call waiting and caller identification, high
speed internet, and, through another company, satellite televi-
sion service. Customers pay for their services in various ways
including coming to one of the seven retail stores located in the
Las Vegas metropolitan area. The two clerical unit classifica-
tions relevant to this proceeding are the classification of retail
cashier and retail sales consultant. Until December, employees
in the classification of retail cashier were employed at the three
busiest Las Vegas area retail stores, Civic Center, Meadows,
and Renaissance.
Retail cashiers, whom retail sales consultant Kathlene Selcke
referred to as tellers, received payments by check, money order,
cash, and credit card. Retail cashier Kathryn Dawkins ex-
plained that, if a customer had neglected to bring his or her
current bill, the retail cashier would look up the account and
inform the customer how much was owed. Retail cashiers
would also seek to have customers avail themselves of other
services offered by the Company and would refer them to a
retail sales consultant if the customer expressed interest in any
other services. If retail cashiers became excessively busy, retail
sales consultants or the store manager would assist in receiving
customer payments.
At some point prior to 2004, when Embarq was a subsidiary
of Sprint, the record does not establish the exact date, automatic
payment machines were installed at the retail stores. Those
machines received payments by cash, check, or credit card, but
not money orders. They did not make change, thus any over-
payment was posted as a credit. They also were unable to an-
swer questions regarding an account.
Retail cashiers, in a manner similar to how bank tellers work,
received money and made change. Retail sales consultant
Selcke testified that, at the Renaissance store at which she
worked, the cash tills used by the retail cashiers contained
$100, whereas, until the position of retail cashier was eliminat-
ed, the tills of the retail sales consultants who received pay-
ments when necessary, contained only $50. When the retail
cashier position was eliminated, the amount in the tills of the
retail sales consultants was increased to $100. Selcke testified
that, each day, a deposit slip was collected from each automatic
payment machine. Retail cashier Kathryn Dawkins testified
without contradiction that retail cashiers, and presumably retail
sales consultants who had received payments, balanced their
cash registers at the end of each day.
The chief responsibility of retail sales consultants, who are
sometimes referred to in the record as customer service con-
sultants, was to sell additional services to existing customers or
new customers who entered the store. They were “assigned a
monthly quota for the purpose of commission.” In the four
stores at which no cashiers were employed, retail sales consult-
ants would also receive payments. In the three stores that em-
ployed retail cashiers, they would receive payments only when
necessary to assure that the customers received prompt atten-
tion.
b. The collective-bargaining agreement
The collective-bargaining agreement covering the clerical
unit is effective by its terms from April 1, 2009, through March
31, 2012.2 The contract was ratified by the union membership
on October 26, 2009. The clerical contract recognizes the Un-

2 The parties have been operating under the current agreement since
October 26 when the union membership ratified the agreement. Senior
Assistant Business Agent Jesse Newman testified that there was no
issue relating to contractual language, but that the agreement has not
been signed only because of “an issue on the pension bands.” That
issue was not fully explained on the record and is immaterial to this
decision insofar as the Union and the Company agree that they are, and
have been, operating under the current unsigned agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
ion as the exclusive collective-bargaining representative of
employees in the following appropriate unit:

The Company’s Clerical employees in the various depart-
ments as defined by the Act, as to the extent certified by the
National Labor Relations Board on November 2, 1954, in
Case No. 20–RC–2644.

Wage schedules set out the wages for the classifications of
retail cashier and retail sales consultant.
The management-rights clause of the contract, article 2, 2.02
provides, in pertinent part:

The Company has and will retain the exclusive right and
power to manage its business and direct working forces, in-
cluding but not limited to, the right to hire, classify, grade,
suspend, reassign, lay-off, discharge, promote, demote, or
transfer its employees, provided that the Company shall not
exercise these rights in violation of the provisions of this
agreement.

Article 8 (Reduction in Force), paragraph 8.01 provides, in
pertinent part:

In the event of any reduction of the working forces, the Com-
pany agrees to notify the individual employees to be laid off
not less than two (2) weeks prior to the lay-off and simultane-
ously to inform the Union of the names and occupations of
the employees to be laid off. . . .

Paragraph 8.02 of the contract provides: “Lay-offs due to
lack of work shall be made in the inverse order of seniority
. . . .”
During negotiations in 2004 for the clerical collective-
bargaining agreement, the Company proposed language that the
Company, “in its discretion,” whenever it “deems that it is ad-
visable to reduce the work force, reduce the hours being
worked by employees, or to lay-off employees,” could do so
and, when doing so, designate 25 percent of the employees in
the affected classifications who “in the Company’s judgment”
were the “best qualified and best performing employees,” to be
the last to be laid off or have their hours reduced.
International Representative Gina Cooper, who at the time
was assistant business manager of the Union, wrote “bullshit”
next to the proposed language and, in negotiations, rejected the
proposed language. The Company thereafter withdrew the
proposal. The current language has remained virtually un-
changed in the last three collective-bargaining agreements.
c. Elimination of the retail cashier position
Centurylink was created as a result of the merger of Embarq
and Centurytel in late June or early July 2009. In July 2009,
Jeff Oberschlep, who had previously been employed by Centu-
rytel in Dallas, Texas, became the vice president and general
manager of Centurylink in Nevada. Shortly after assuming that
position, he requested Anthony Gates, area manager customer
service, who oversees the operations of the retail stores, “to see
if there was a way that we could become more efficient” con-
sistent with management’s goal of reducing “the overall ex-
pense structure.” Gates provided various recommendations
including creating a mobile store, putting managers over multi-
ple stores, and eliminating the retail cashier position. The
Company maintains data that reflects the number of visitors to
each retail store on a monthly basis and the revenue collected at
each store. The revenue report does not distinguish between
revenue received by retail cashiers and retail sales consultants
and revenue paid into the automatic payment machines. Ober-
schlep, when questioned as to whether he reviewed the actual
documents reflecting the number of visitors and revenue col-
lected acknowledged that he did not specifically recall. It is
undisputed that, over the past 2 years, the number of visitors to
each retail store and the revenue collected at those stores de-
creased.
The Union and the Company were still in negotiations re-
garding what is now the current collective-bargaining agree-
ment in August. Oberschlep was aware of those negotiations
and, on August 25, he informed Employee Relations Manager
Joseph Basile, who was the spokesperson for the Company in
negotiations, that the Company was “looking at moving toward
eliminating the [retail] cashiers’ position.” Notwithstanding the
“looking at” communication to Basile, Oberschlep admitted, “I
had made the decision that I was going to eliminate the posi-
tions.” No document setting out the decision was created.
Consistent with what Oberschlep had told him, Basile, at a
contract bargaining session of August 26, informed the Union
that “he had just been informed that the Company was moving
in the direction of eliminating the retail cashier positions” that
he “didn’t have a timetable yet,” but would get more infor-
mation.
Senior Assistant Business Manager of the Union Jesse
Newman, spokesperson for the Union, recalled that Basile men-
tioned “a possible change with the retail cashiers,” involving
the “possibility of” a layoff but that he did know if or when it
was going to happen.” Newman commented that “this was not
the appropriate time to be discussing” that matter, that since
Basile “didn’t have the appropriate information . . . that it
would be more appropriate at a different time,” and that the
Union would be requesting to bargain the decision and effects
of whatever change was contemplated.
Charles Randall, business manager and financial secretary of
the Union, took notes of the meeting. He had no independent
recollection of the foregoing conversation, but his notes reflect
that Basile informed the Union that the Company “may be
looking at doing something with the cashier classification.”
Basile had no particulars “on how it would roll out, and that it
was only a local issue.” Randall’s notes reflect that Newman
stated that, when Basile knew more, “would be the appropriate
time to discuss it” and that the Union would be “requesting to
barg[ain] the decision and effects of any changes.” Neither
Newman nor Randall dispute Basile’s recollection that, on the
following day, he asked them to keep the matter confidential
and that “they were fine with that.”
Notes of the bargaining session taken by Christy Gray, the
Company’s western region human resources business partner,
reflect that, when Basile mentioned the possible elimination of
the retail cashier position, he stated that it was “not 100 percent
decided.”
Following the bargaining session Basile sent an email dated
August 26 to multiple recipients including Oberschlep and
Joseph Osa, the person to whom Basile reports, in which he
CENTURYLINK 1199
summarized the contract bargaining. The email notes that he
informed the Union “of our intent to eliminate the remaining
Retail Cashier positions” and that, “once we make this official”
he, Basile, would “follow the contractual guidelines by giving
formal notification.” The email notes that Jesse Newman stated
that “he would require ‘bargaining over the decision and ef-
fects.’ (sound familiar??).”
The testimony of Basile and Newman and the notes of Chris-
ty Gray confirm that the Union was not informed of the Com-
pany’s “intent to eliminate” the retail cashier position. Rather,
the Union was informed that the Company was “moving in the
direction of eliminating” the position but that it was “not 100
percent decided.” The email confirms that Newman sought to
find out when any contemplated change would occur and stated
the intent of the Union to bargain the decision and effects.
Area Manager Gates prepared a powerpoint presentation dat-
ed September 11 that sets out various strategies for increasing
“consumer penetration” and improving “financial perfor-
mance.” The section on retail optimization refers to consolidat-
ing store management and eliminating retail cashiers, and that
the latter action would result in a saving of $349,147, 74 per-
cent of which were direct labor costs. Vice President Ober-
schlep acknowledged that cost reduction was a driving factor in
his decision to eliminate the retail cashier position.
On September 15, the Union and the Company agreed upon
the terms of the contract. When they initially testified neither
Business Manager Newman nor Business Manager Randall
recalled that retail cashiers were mentioned at that bargaining
session. Following testimony by Christy Gray, whose notes did
reflect discussion, Randall located the notes of the meeting that
he had taken. His notes confirm that there was discussion of
the seniority of the nine retail cashiers and their rights under the
contract. Newman questioned whether the work would remain.
Basile responded that the work would remain, that payments
would be received by the automatic payment machines or retail
sales consultants, noting that their receipt of payments would
give them the opportunity to make a sale. Newman questioned
whether retail cashiers existed at other locations. Anthony
Gates stated that he believed retail cashiers existed in North
Carolina and “possibly other places,” but that the elimination
related only to Nevada.
Basile recalled that, on September 15, he informed the Union
that “we were going to eliminate the positions,” that the only
issue “was when we were going to do it.” The notes made by
Randall reflect that, following the discussion of seniority and
the contractual rights of the employees, Basile stated that the
Company did not know when anything would happen and again
requested that the Union keep the matter confidential. Gray’s
notes reflect that, although Basile did not give a specific date
upon which the positions would be eliminated, he mentioned
“the end of November.” I find that Gray’s notes more accurate-
ly reflect what was said in view of a subsequent conversation in
which Newman made a request of Basile.
Basile’s uncontradicted testimony establishes that, following
the foregoing conversation, Newman stated that the Company
had put the Union “in a bit of an awkward position since they
[the Union] knew about the information . . . [but had been
asked] to keep it confidential.” Newman asked if the Company
could make its official announcement to the affected employees
prior to the ratification vote on the contract. Basile agreed that
“it would have put the Union . . . in an awkward position if we
had just agreed to the contract and then . . . notified the retail
cashiers that they were going to be laid off.” He brought the
Union’s concern to the attention of higher management who
agreed to make the announcement several weeks prior to the
effective date of the layoff rather than the contractually re-
quired 2 week notification period.
On October 1, Basile sent an email to Randall attaching a let-
ter formally notifying the Union of the layoff of all retail cash-
iers. The letter, in pertinent part, states:

I regret to inform you that Friday, October 2, 2009, the Retail
Cashiers will be notified of a reduction in force, which will
impact their entire work group. The layoff is a result to tech-
nological improvements and competitive pressure in our in-
dustry combined with access line losses in our markets. . . .
[T]he last day of work for the employees will be December 4,
2009.

As already noted, the automatic payment machines had been
in use for over 5 years. The Company introduced no evidence
of any other new technology relating to payment of bills.
By email on October 13, Newman forwarded to Basile a let-
ter misdated October 15 that states, in pertinent part:

This letter is in response to your . . . letter wherein you noti-
fied the Union of the Company’s intent to layoff the entire
Retail Cashier work group as a result of technological im-
provement, competitive pressure and access lines lost in the
market. Therefore, consider this notice of the Union’s intent
to bargain both the decision and the effects regarding the lay
offs of the Retail Cashier work group.

On November 3, Newman, on behalf of the Union, requested
information “necessary and relevant . . . to effectively bargain
the decision and effects regarding the Retail Cashier reduction
of forces.” The request sought:

1. A [c]opy of any and all contemporaneous notes, re-
ports, power point presentations, recordings or otherwise
regarding any discussion to lay off the Retail Cashier clas-
sification.
2. A [c]opy of any and all information, notes, reports,
meeting minutes or any thing else the Company used to
make the determination lay off the Retail Cashier classifi-
cation.
3. A [c]opy of the names and title of all Company rep-
resentatives who attend[ed] any and or all meetings where
any discussions were held regarding the Retail Cashier
classification lay off.
4. A copy of the current job description for the Retail
Cashier classification detailing any and all work tasks they
perform.
5. A copy of the current job description for the Retail
Sales Consultant classification detailing any and all work
tasks they perform.
6. A copy of the new procedure or guidelines that will
be used by the Retail Sales Consultants detailing how to
handle any form of bill payments. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
7. A copy of any and all job openings/bids within the
Company locally and for all other Century Link locations.
8. A copy of any and all documents showing the num-
ber of access lines lost by the Company and its predeces-
sors broken down yearly for the last three (3) years.
9. A copy of any and all documents showing the num-
ber of new access lines gained by the Company and its
predecessors broken down yearly for the last three (3)
years.
10. A copy of any and all documents shown the num-
ber of access lines lost by the Company and its predeces-
sors which were won back broken down yearly for the last
three (3) years.
11. A copy of any and all communications sent out to
customers or posted in the Retail Stores explaining the
changes and new requirements regarding bill payments be-
ing made within the Retail Stores.

On November 16, Basile wrote Randall citing the manage-
ment-rights clause of the contract and stating that he does not
believe that the Company “has an obligation to bargain over the
decision.” Consistent with that position he requests that the
Union identify the information it “needs for effects bargaining.”
On November 25, following a telephone conversation be-
tween Basile and Randall on November 18, Basile wrote the
Union stating that, “[i]n the Company’s view, Items 1, 2, 3, 8,
9, and 10 appear relevant only to ‘decision’ issues” and the
Company “does not believe it is required to provide the Union
with information related to the decision, and is herby declining
to do so.” The Company provided the job descriptions sought
in items 4 and 5. Regarding items 6 and 11, Basile stated that
there were no such documents. He referred the Union to the
Company’s internal website for the job postings sought in item
7.
Randall responded in a letter also dated November 25 in
which he reiterated the Union’s position that the Company was
obligated to bargain regarding the decision relating to the
“complete elimination of all employees working as retail cash-
iers” and that the information sought was relevant both as to the
decision as well as permitting the Union “to make a good faith
determination of your assessment that it was not an a mandato-
ry subject” of bargaining.
Contemporaneously with the foregoing communications, the
parties were proposing dates to meet with a representative of
the Federal Mediation and Conciliation Service. Randall’s letter
confirmed that the parties would meet on December 16 and that
the Union needed the information sought in order to prepare for
negotiations regarding the “decision and effects.”
A letter from Basile to Randall dated December 8 refers to
meeting to bargain effects. That letter states that the Company
has no notes, reports, powerpoint presentations, or recordings
responsive the Union’s request of November 3. It provides
figures, but not documents, reflecting access lines lost yearly
from January 2006 through October 2009.
Business Manager Randall, on December 15, wrote Basile,
referencing the Union’s prior request, and modifying the re-
quest in certain respects. The letter, in pertinent part, states:

In regards to items number one, two and three of he union’s
initial request your answer was non-responsive to the request-
ed information. Therefore, please provide any and all infor-
mation including, but not limited to, reports, notes, surveys,
outside studies, customer complaints, sales volume per store,
employee evaluations, job studies or anything else [upon
which] the Company based its decision to lay off the Retail
Cashier Classification.

In regards to item number eight, please provide a copy of any
and all information showing the total number of lines lost in
the greater Las Vegas Valley broken down yearly for the last
three (3) years by land line residential, land line business, high
speed internet and video.

In regards to items number nine and ten please prove a copy
of any and all information showing the total number of new
lines installed in the greater Las Vegas Valley broken down
yearly for the last three (3) years by land line residential, land
line business, high speed internet and video.

In regards to item number eleven please provide a copy of any
and all information showing the Company’s policy on how
customers will go about paying their bills inside a retail loca-
tion once the Retail Cashier classification is eliminated, both
over the counter payments and kiosk payments.

Also please provide a copy showing the total number of bill
payments made at the retail locations in the greater Las Vegas
Valley broken down yearly for the last three (3) years.

The meeting with the federal mediator on December 16 was
short. Basile participated by telephone and, at the hearing here-
in, had no recollection of any matter of substance. Newman
recalled that the meeting lasted less than an hour, that the Com-
pany continued to refuse to bargain regarding the decision and
was unwilling to offer the retail clerks, who had been laid off
on December 4, anything other than what the contract provided.
On January 19, 2010, Basile wrote Randall with regard to his
information request of December 15, stating that he “cannot see
how anything you are now asking for . . . is, or could be, rele-
vant to bargaining over the effect on employees of the cashier
layoffs.
Newman, in testimony, explained that the Union sought the
information set out in the first three paragraphs of the Novem-
ber 3 request, which was modified by the first request in the
letter of December 15, in order to determine the reasons for the
decision and whether the Union could offer anything that could
“save the jobs” of the cashiers.
Notwithstanding the existence of the powerpoint presenta-
tion dated September 11 that, inter alia, sets out the labor cost
savings resulting from elimination of the retail cashiers, Ba-
sile’s letter of December 8 represents that there were no such
documents. When questioned in that regard, Basile answered
that, if the people he goes to “tell me they don’t have any [re-
sponsive documents], that’s how I respond.”
Although Vice President Oberschlep claimed that he did not
believe that any documents existed that reflected the amount of
money collected by cashiers as opposed to automatic payment
machines, I question that claim. Retail cashiers and retail sales
consultants had tills from which they made change as necessary
CENTURYLINK 1201
and were, as stated in the job description for the position and
explained by retail cashier Kathryn Dawkins, required to bal-
ance their cash registers at the end of each day. The testimony
of retail sales consultant Kathlene Selcke establishes that a
deposit slip was collected from each automatic payment ma-
chine each day.
When questioned whether any consideration was given to
laying off the most junior people in any classification other
than the retail cashiers, Oberschlep answered, “Didn’t look at
that as a consideration.”
2. Analysis and concluding findings
a. Elimination of the retail cashier position
The complaint alleges that the Respondent, on December 4,
laid off its retail cashier employees, that the layoff was a man-
datory subject of bargaining, that the Respondent laid off the
employees without affording the Union an opportunity to bar-
gain about the decision or its effects and without the consent of
the Union.
The elimination of the retail cashier classification did not
constitute an entrepreneurial decision relating to the “scope and
direction of the enterprise.” First National Maintenance Corp.
v. NLRB, 452 U.S. 666, 677 (1981). It was a staffing decision.
The September 11 powerpoint document reflects the savings
resulting from a reduction in force of all 9 cashiers. Customers
continued to pay their bills to employees of the Respondent at
retail stores. The work previously performed by retail cashiers
continues to be performed, albeit by retail sales consultants. A
decision to “combine jobs, to reassign work, and to lay off em-
ployees” constitutes a mandatory subject of bargaining. Holmes
& Narver, 309 NLRB 146 (1992). “[W]hen virtually the only
circumstance the employer has changed is the identity of the
employees doing the work . . . the decision did not involve a
change in the scope and direction of the enterprise that is ex-
empt from the statutory bargaining obligation.” Geiger Ready-
Mix Co. of Kansas City, 315 NLRB 1021, 1023 (1994).
Counsel for the General Counsel points out that this was not
a “run-of-the mill” layoff. I agree. Although the Respondent
couched its action as a layoff, the elimination of the position of
retail cashier resulted in the termination of all retail cashiers.
Retail sales consultants assumed the work of the retail cashiers.
The Respondent’s unilateral determination to eliminate the job
classification of retail cashier is confirmed by the September 11
powerpoint document, which states on the fifth page: “Reduce
headcount by eliminating the ‘cashier’ position.”
The Union, by its email on October 13 that forwarded the
letter misdated October 15, requested that the Respondent bar-
gain both the decision and effects of the layoff of the retail
cashiers. On November 3, the Union followed up by requesting
information. On November 16, the Respondent informed the
Union that it did not believe it had an obligation to bargain, a
position it has continued to maintain.
The Respondent, citing the management-rights clause of the
contract, contends that the Union waived its right to bargain
regarding the layoffs. In 2004, the Union specifically rejected
proposed language giving the Respondent the right to lay off
when it “deems that it is advisable” to do so. The waiver ar-
gument might have arguable merit if the Respondent had de-
termined the number of employees whose services it did not
need due to diminished traffic and revenue and, consistent with
the “lack of work” provision in paragraph 8.02 of article 8 of
the contract, laid off in inverse order of seniority. Layoffs pur-
suant to the unilateral elimination of a contractual job classifi-
cation are not privileged under any reading of the contract.
Insofar as fewer customer visits to retail stores suggested a
need for fewer employees, there would have been a concomi-
tant reduction in the number of retail sales consultants absent
the transfer of the work of retail cashiers to retail sales consult-
ants. The August 26 email from Basile to his superiors states
that he informed the Union of the Respondent’s intent to “elim-
inate the remaining Retail Cashier positions.” Although that is
not what Basile stated to the Union, his report confirms that the
action of the Respondent was elimination of a classification,
not a reduction in force carried out consistently with the con-
tractual requirement of layoff by seniority. Oberschlep admit-
ted that he gave no consideration to laying off junior employees
in any classification other than retail cashier, stating, “Didn’t
look at that as a consideration.”
As explained in Holy Cross Hospital, 319 NLRB 1361
(1995), “once a specific job has been included within the scope
of the unit by either Board action or the consent of the parties,
the employer cannot remove the position without first securing
the consent of the union or the Board. Hill-Rom Co., 957 F.2d
454, 457 (7th Cir. 1992).” Id. at fn. 2. No collective-
bargaining agreement provision gave the Respondent the right
to unilaterally eliminate a unit classification.
The Union did not waive its right to bargain. The classifica-
tion of retail cashier was set out in the contract with specified
wage rates. That contractual provision became a nullity when
the Respondent eliminated the position. The decision to elimi-
nate the retail cashier position was a mandatory subject of bar-
gaining insofar it directly affected the wages, hours, and work-
ing conditions of the retail cashiers, all of whom were terminat-
ed when the position was eliminated.
Consistent with its desire to reduce “headcount,” the Re-
spondent could have approached the Union and proposed elim-
ination of the retail cashier position. If the Union did not agree
to do so, the Respondent was required by the contract to lay off
by inverse seniority which, in the absence of reassignment of
the job duties of retail cashiers, would have assured that a num-
ber of retail cashiers remained employed. The Respondent was
not privileged to eliminate a contractually established position
without the consent of the Union.
The Union did not waive its right to bargain regarding the
Respondent’s action. The right to eliminate a job classification
is not “enumerated as one of the rights of management” in the
management-rights clause. See Miami Systems Corp., 320
NLRB 71, 74 (1995). The elimination of the bargaining unit
classification of retail cashier required that the Respondent not
only bargain with the Union regarding its decision but also
obtain the consent of the Union before implementing its deci-
sion. Implementation of the Respondent’s decision directly
affected the wages, hours, and working conditions of the retail
cashiers, all of whom were terminated.
The Respondent argues that the action of the Union in seek-
ing an early announcement of its decision constituted a waiver
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
of its right to bargain. I disagree. Until October 1, nothing was
definite. As the brief of the General Counsel points out, citing
Sierra International Truck, Inc., 319 NLRB 948, 950 (1995),
an “‘inchoate and imprecise’ announcement of future plans” is
insufficient to trigger an obligation to request bargaining or risk
waiving the right to bargain. On August 26, nothing was 100
percent certain. Basile’s email of August 26 summarizing the
bargaining session confirms that formal notification of the Un-
ion would occur “once we make this official.” The Union, on
August 26, told the Respondent that it would seek to bargain
regarding the decision and effects. As of September 16, the
date for the proposed action was uncertain, and the Union had
been requested to keep the matter confidential. The Union, not
wanting to violate the request for confidentially, requested the
Respondent to notify the affected employees prior to the ratifi-
cation vote. The Union was unaware that its request had been
granted and a date for elimination of the position had been set
until it received the email and attached letter on October 1 stat-
ing that the affected employees would be notified the next day
and would be laid off on December 4. On October 13, less than
2 weeks after receiving that notification and almost 2 months
prior to the proposed action, the Union, consistent with the
position it had taken on August 26, requested to bargain over
the decision and effects.
The Respondent cites no precedent, and I am aware of no
precedent, holding that cooperation regarding procedural mat-
ters constitutes waiver of substantive and statutory rights. I
concur with the observation in St. Vincent Hospital, 320 NLRB
42, 50 (1995), that it “would be utterly unfair were the law to
permit party to an agreement to seek the help of the other party
. . . [and then] hold the cooperation against it. . . .” The Union
agreed to keep what the Respondent was “looking at, “confi-
dential. When informed on September 16 that the Respondent
would eliminate the retail cashier position but that the date had
not been firmly decided, the Union realized the potential fallout
of conducting a ratification vote without disclosing the inten-
tion of the Respondent to eliminate retail cashiers. The request
for disclosure constituted neither acquiescence in the elimina-
tion of the position nor waiver of the Union’s announced inten-
tion to request bargaining over the decision once it ceased to be
confidential. The Union requested announcement to the affect-
ed employees prior to the ratification vote. The Union, less
than 2 weeks after that announcement and almost 2 months
prior to the date of implementation, requested bargaining. If
Respondent had not refused to bargain, there would have been
ample time to address the issues. The Union did not waive its
right to bargain over the decision to eliminate the position of
retail cashier. The Union did not consent to the elimination of
this classification, the wage rates of which are set out in the
collective-bargaining agreement.
The Respondent, by refusing to bargain with the Union re-
garding its decision to eliminate the contractual classification of
retail cashier and by eliminating that position without the con-
sent of the Union, violated Section 8(a)(5) of the Act.
Evidence at the hearing establishes that elimination of the re-
tail cashiers affected the working conditions of retail sales con-
sultants who are assigned monthly quotas but who, in the ab-
sence of retail cashiers, had to spend time receiving payments.
The Union, consistent with its contention that the Respondent
was obligated to bargain over the decision that eliminated the
retail cashiers, never sought to bargain any effects upon retail
sales consultants. As reflected in the communications between
the Respondent and the Union, the Respondent never refused to
bargain regarding any effects of its unlawful action. I shall,
therefore, recommend dismissal of that aspect of the complaint.
b. Refusal to provide information
The complaint alleges the failure and refusal of the Respond-
ent to provide the Union with the information sought in its let-
ter of December 15, which modified the Union’s initial request
of November 3. Recent Board precedent, including Postal Ser-
vice, 337 NLRB 820, 822 (2002), reaffirms longstanding prec-
edent establishing that an employer is obligated to provide re-
quested information so long as there is a “probability that such
data is relevant and will be of use to the union in fulfilling its
statutory duties and responsibilities as the employees’ exclusive
bargaining representative.” Bohemia, Inc., 272 NLRB 1128
(1984).
I have found that the Respondent was obligated to bargain
with the Union and to obtain the consent of the Union regarding
its decision to eliminate the unit classification of retail cashier.
Thus the claim that the information sought was not relevant
because the Respondent had no obligation to bargain over the
decision, only the effects, has no merit.
The Union’s first request in its letter of December 15 was for
“information including, but not limited to, reports, notes, sur-
veys, outside studies, customer complaints, sales volume per
store, employee evaluations, job studies or anything else the
Company based its decision to lay off the Retail Cashier Classi-
fication.” [Emphasis added.] As Newman explained in his
testimony, the Union needed to know the basis for the decision
so that it could determine whether the Union could offer any-
thing that could “save the jobs” of the cashiers. The September
11 powerpoint presentation, placed into evidence by the Re-
spondent, constitutes a document upon which the Respondent
based its decision. Financial information was redacted from the
document placed in evidence. The unredacted document as
well as any other information that has come to the attention of
the Respondent in the course of this proceeding is clearly rele-
vant and must be produced to the Union. The information re-
mains relevant, notwithstanding my findings herein regarding
the unlawfulness of the elimination of the retail cashier posi-
tion, insofar as compliance with my decision may have an im-
pact upon future decisions of the Respondent relative to the
utilization of personnel.
The second and third requests relate to lost lines, one of the
factors stated by the Respondent for its action, and new lines.
Although Basile, in his letter of December 8, provided the Un-
ion with numbers of lost lines, he did not provide the documen-
tation relating to those losses or new lines installed. The annual
figures provided, January 2005 through October 2009, reflect a
loss of 4,385,870 access lines, well more than double the popu-
lation of the Las Vegas metropolitan area. Documents estab-
lishing the net line loss or gain is relevant.
The fourth request relates to any information relating to any
policy on how customers are to pay their bill inside a retail
CENTURYLINK 1203
location. Basile’s letter of November 25, in response to item 6
in the Union’s request of November 3, stated that there were no
documents. Whether any such documents were created after
the layoff occurred on December 4 is not established. The
information sought is relevant.
The fifth request was for information showing the total num-
ber of bill payments made at the retail locations in the greater
Las Vegas Valley broken down yearly for the last three (3)
years. Insofar as retail cashiers balance their cash drawers and
records are obviously kept showing who paid their bill, it would
appear that the number of payments made, whether to a person
or machine, is a number that should be able to be obtained.
This information is relevant.
The Respondent, by failing and refusing to provide the Un-
ion with requested relevant information, violated Section
8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. By photographing employees engaged in protected con-
certed union activity, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By failing and refusing to bargain with the Union regard-
ing its decision to eliminate the unit classification of retail cash-
ier and by eliminating that classification without the consent of
the Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
3. By refusing to provide the Union with requested relevant
information relating to its decision to eliminate the job classifi-
cation of retail cashier, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having eliminated the unit classification of
retail cashier without bargaining with the Union and without
the consent of the Union, it must restore that classification and
offer reinstatement to Jacqueline Brownlee, Kathryn Dawkins,
Pamela DePalma, Thomas England, Debra Mercer, Peggy
Mills, Rebecca Ribaudo, Joyce Smith, and Lynn Taylor and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from December 4, 2009, to date
of proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The Respondent must provide the Union with all documents
requested in its information request dated December 15, 2009.
In view of the Board’s decision in Glen Rock Ham, 352
NLRB 516 at fn. 1 (2008), I need not address the request of the
General Counsel regarding compound interest.
The Respondent must also post an appropriate notice.
[Recommended Order omitted from publication.]