Redburn Tire Company

National Labor Relations Board - Administrative Judge Opinions

Apr 23, 2012

28-CA-023527 (N.L.R.B. Apr. 23, 2012)

JD(SF)–13–12
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
REDBURN TIRE COMPANY
and Case 28-CA-023527
28-CA-061437
GENERAL TEAMSTERS (EXCLUDING
MAILERS), STATE OF ARIZONA, LOCAL
UNION NO. 104, AN AFFILIATE OF THE
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Mary Davidson, Esq. and Sandra Lyons, Esq., of
Phoenix, Arizona, for the General Counsel.
Jon E. Pettibone, Esq., Quarles & Brady, LLP, of
Phoenix, Arizona, for the Respondent.
Jerry Anthony enuso, Business Representative,
Teamsters Local 104, of Phoenix, Arizona,
for the Union.
DECISION
Statement of the Case
GERALD A. WACKNOV, Administrative Law Judge.Pursuant to notice a hearing in this
matter was held before me in Phoenix, Arizona, on December 13, 14 and 15, 2011. The charge
in Case 28-CA-02357 was filed by General Teamsters (Excluding Mailers), State of Arizona,
Local Union No. 104, an affiliate of the International Brotherhood of Teamsters (the Union) on
May 27, 2011. The charge in Case 28–CA–061437 was filed by the Union on July 20, 2011,
and an amended charge was filed on August 30, 2011. Thereafter, on August 31, 2011, the
Regional Director for Region 28 of the National Labor Relations Board (the Board) issued a
consolidated complaint and notice of hearing alleging a violation by Redburn Tire Company
(Respondent) of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended
(the Act). The Respondent, in its answer to the complaint, duly filed, denies that it has violated
the Act as alleged.
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The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the Acting General Counsel the General Counsel) and
counsel for the Respondent. Upon the entire record,1 and based upon my observation of the
witnesses and consideration of the briefs submitted, I make the following.
Findings of Fact
I. Jurisdiction
The Respondent, an Arizona Corporation with an office and place of business in
Phoenix, Arizona, is engaged in the business of selling and retreading tires. In the course and
conduct of its business operations the Respondent annually derives gross revenues in excess
of $500,000, and purchases and receives goods at the Respondent’s Arizona facility valued in
excess of $50,000 directly from points outside the State of Arizona. It is admitted and I find that
the Respondent is, and at all material times has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. The Labor Organization Involved
It is admitted, and I find, that the Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the Act,
III. Alleged Unfair Labor Practices
A. Issues
The principal issues in this proceeding are whether the Respondent has violated and is
violating Section 8(a)(1), (3), and (5) of the Act by implementing a last and final offer prior to
reaching impasse, by making unlawful threats, interrogating and disciplining employees for their
union activities, and by permanently replacing unfair labor practice strikers.
B. Facts
The Respondent is engaged in the business of selling and retreading truck tires. It has
facilities in five states and employs a total of about 240 employees. About 40 of these
employees are engaged in tire retreading. Eleven of these retreaders, who worked at the
Respondent’s Phoenix, Arizona facility, were the Respondent’s only unionized employees.
Since about 1970 the Respondent has recognized the Union as the exclusive collective-
bargaining representative of the Phoenix, Arizona retread employees. The parties’ most recent
collective-bargaining agreement extended from January 1, 2007 through December 31, 2009,
and by its terms was automatically extended to December 31, 2010.
The parties began bargaining for a successor agreement on December 15, 2010.
Between December 15, 2010 and May 25, 2011 the parties met approximately 10 times at the
offices of the Federal Mediation and Conciliation Services (FMCS).

1 The Parties’ unopposed requests to correct the transcript, as specified in their briefs, is
hereby granted.
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The Respondent’s owners, J.D. Chastain, president, and Donald Leffler, secretary-
treasurer, bargained on behalf of the Respondent. Jerry enuso, the Union’s business agent,
was the Union’s principal negotiator. Ruben Martinez Sr. and Ruben MartinezJr., retreader
employees, comprised the Union’s bargaining committee.
The overriding issue from the very first bargaining session and throughout negotiations
was the matter of free health insurance coverage for unit employees with 10 or more years of
service (the 10-year benefit). During the instant set of negotiations seven of the unit employees
who had 10 or more years of service were receiving, and had received under prior contracts,
free medical insurance for themselves and their dependents. The Respondent wanted to
change this, so that all unit employees, regardless of their tenure, would be subject to the same
schedule of health insurance premiums as all of its other approximately 230 nonunion
employees. The Union, on the other hand, was insistent that this 10-year benefit which the unit
employees had enjoyed for many years should not be taken away.
The matter of free medical insurance had been a significant issue during the proceeding
set of negotiations which culminated in the 2007–2009 agreement, and resulted in an arbitration
award favoring the Union’s position that the bargain the Respondent and Union had struck
during those negotiations had not eliminated the 10-year benefit. Thus, on July 27, 2007, the
arbitrator determined that, “The Company will continue to refrain from deducting such premiums
[from the weekly checks of the unit employees with ten or more years of service] until and if a
proper change . . . is negotiated between the Parties.”
On March 1, 2011, the Respondent wrote to the Union as follows:
Attached is our last, best and final offer.
After months of negotiation, we were left with only three major open issues after our
last negotiation.
Two of the three are wage increases and holidays. We will accept the Union’s latest
proposal for wage increases and holidays and those proposals are included in our
offer.
We therefore have tentative approval on all articles of the Collective Bargaining
Agreement except for the Health & Welfare and Pension article.
As you know, the Company’s intent in the prior negotiations that culminated in the
Agreement that covered January 1, 2007 through December 31, 2009 was to have
the Redburn employees begin paying a portion of their medical insurance premiums
under that contract. In exchange, we agreed to raises during that period which were
almost double the raises that had been negotiated previously. We understood that to
have bee the agreement reached between us. However, the arbitration over the
disagreement between us that followed resulted in no medical insurance payments
being made by bargaining unit employees. As we have explained, our other
employees bear some of the cost of the premiums for their medical benefits and it is
again our intent in these negotiations that all Redburn employees do so. We believe
that is both fair and reasonable.
The proposal in our final offer is that the Redburn employees covered by the new
Collective Bargaining Agreement pay the same amount as all other non-supervisory
Redburn employees for the type of medical insurance coverage that they elect.
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As we have repeatedly discussed during the current negotiations, for us this is a
mater of fairness and also competitiveness. None of our competition provides free
insurance to their employees. Obviously, our ability to compete and to continue to
provide steady, goodpaying jobs will be enhanced if all of our employees con tribute
to their medical coverage just as the employees of our competitors do.
We request that the Union present this offer to the eligible Redburn employees for a
ratification vote. We also request that your bargaining committee support its
ratification.
On March 15, the Union conducted a ratification vote among the unit members. The
Respondent’s proposed final offer was unanimously rejected
Thereafter, bargaining continued. Ron Collotta, the Federal Mediation and Conciliation
Service (FMCS) mediator, who worked with the parties, initiated a one-on-one meeting between
Leffler and enuso. Up to that point neither party had yet moved from its initial December 15,
2010 position on the 10-year benefit. At this one-on-one “sidebar” meeting between Leffler and
enuso, which occurred sometime after March 15, 2011, Leffler proposed that in order to resolve
the one open issue and reach agreement the Respondent was willing to change its initial
proposal by phasing in the costs of medical insurance over the 3-year term of the new contract
rather than immediately; in this manner the unit employees who were then receiving free
medical insurance would, over a 3-year period, gradually reach parity with what the
Respondent’s other employees were paying for medical insurance.2
The next negotiating session was held on March 29, 2011. At this meeting the Union
lowered its initial December 15, 2010 medical insurance proposal--from free medical insurance
for employees with only three or more years of service--to the status quo, that is, retention of the
current 10-year benefit; the Union also proposed that for employees with employee-only
coverage, which would effect only one unit employee, medical benefit premiums would be
escalated over the 3-year contract term; and further, the Union proposed a regressive premium
for employees who signed up for dependent coverage but had less than 10 years of service,
that is, the premiums under a new contract would be less than the premium schedule of the
expired contract. In addition to these proposals on medical coverage, the Union proposed an
additional wage increase over and above that which had been accepted by the Respondent
prior to the March 15, 2011 ratification vote.
The parties next met again on April 11, 2011 at FMCS. At that meeting, the Respondent
offered a “package” proposal: it accepted the Union’s higher wage proposal even though wages
had been previously agreed to, and proposed a 3-year phase-in of medical premiums that was
more favorable to the unit employees than its earlier 3-year phase-in offered by Leffler at the
sidebar meeting; thus, under the Respondent’s new phase-in proposal, at the end of 3 years the
unit employees would no longer reach parity with the nonunit employees, as Leffler had
originally proposed, but rather they would be paying less than parity, that is, less than what the
nonunit employees would likely be paying at the end of 3 years due to the escalating costs of
health insurance. Therefore, as of the end of the April 11, 2011 meeting the parties were again
apart only on the issue of medical coverage.

2 The record does not reflect enuso’s response to this new proposal.
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The parties, including the Union’s employee bargaining committee, met again on
April 28, 2011. Chastain was also present on behalf of the Respondent. Prior to the meeting the
Union had requested additional information, including a list of Respondent’s customers. At the
outset of the meeting the Respondent complied with the request and furnished the Union with a
lengthy list of customers.3 Leffler asked enuso what he intended to do with the customer list.
enuso replied that he intended to call the customers. Leffler testified that at that point Chastain
said, in a normal conversational tone of voice, “If you start calling our customers, you could be
in a world of hurt.” enuso took offense at this statement. Leffler testified as follows:
Jerry [enuso] stood up, got all the way across the table into JD’s [Chastain’s] face and
was screaming. “Are you fucking threatening me? Are you fucking threatening me?” I
think he got it out twice before JD then stood up and said, “Do we need to taker this
outside?”
At that point, I stood up right alongside Jerry, and I said, Jerry, sit down. Nobody’s
threatening you. I think I even said, “We don’t even care, just sit down. What JD meant
was that if you call our customers, you could subject the union to legal liability.” I said,
“it’s called tortious interference with a business relationship, Jerry, write it down, t-o-r-t-i-
o-u-s.” He said something about, “Take your tortious and shove it.”4
The federal mediator came in the room to find out what the commotion was all about.
He told Leffler and Chastain leave the room and spoke with enuso. After talking with enuso,
he advised Leffler and Chastain that enuso was very upset and did not want to continue the
negotiating session. This was not acceptable to Leffler, who said that the Respondent had a
final offer to present and wanted to continue bargaining. Leffler testified he believed it was the
mediator’s recommendation that Leffler write at the top of the written offer that it was a final
proposal. Leffler did so, writing at the top, “This is firm and final proposal, Donald Leffler,
4/28/11.”5 Leffler and Chastain then reentered the room occupied by enuso and his committee,
and Leffler handed enuso the final offer. Then Leffler read from a text that he had prepared
prior to the meeting that day, as follows:
Here’s our proposal today except it’s not a package. We don’t like bidding against
ourselves, but we want to wrap up these negotiations. We’ve met you on every item now
except for insurance. So here’s our final proposal. This is a [sic] far as we intend to go

3 Leffler testified that even though the Respondent did not believe the Union was entitled to
such a list, nevertheless it was furnished in order to avoid a subsequent information-request
dispute; and, in any event, the identity of the Respondent’s customers was “no secret,” so that
anyone who might make an effort to obtain such information could likely do so.
4 I credit Leffler’s detailed account of the incident as he appeared to be a forthright witness
with a thorough recollection of what transpired. Moreover, his account did not differ significantly
from enuso’s rather disjointed and less comprehensive account. According to enuso, Chastain
said, “If you reach out or communicate with our customers, you’re going to get hurt.” According
to Rubin Martinez Sr., a member of the Union’s bargaining committee, Chastain replied, “Well, if
you do [contact customers] you’re going to pay for that, you’re going to be sorry if you do that.”
I credit the testimony of Leffler to the extent it is inconsistent with that of enuso and Rubin
MartinezSr.
5 The final offer was identical to the offer the Respondent had presented the Union on
April 11, 2011, except it was not designated as a “package’’ proposal.
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and this is what we need for a contract. Get back to us in a week, we’ll weigh our
options.6
The record does not indicate there was further discussion. Apparently the aforementioned
statement by Leffler concluded the meeting.
enuso, in response to the Respondent’s final offer, set up a meeting between his boss,
Andy Marshall, Local 104’s secretary-treasurer, Leffler, and Chastain. The meeting was held on
May 9, 2011. Leffler’s testimony regarding Marshall’s remarks stands unrebutted in the record.
Marshall, according to Leffler, did most of the talking and made four major points. He said that
the Union would not approve give-backs or concessions that would reduce the net take home
pay of bargaining unit employees; the Union would not recommend the Respondent’s final offer
to the employees; there would be no new contract unless the Respondent changed its position
on medical insurance; and the Union intended to call the Respondent’s customers to advise
them there might be some disruption with the Respondent’s ability to provide them with tires.
Having been given this ultimatum by Marshall, it was concluded by Leffler and Chastain
that the Union would make no further concessionary proposals and therefore there was no
possibility of reaching an agreement with the Union.
On May 20, 2011, enuso advised the Respondent that the Union’s membership had
again unanimously rejected the Respondent’s second final offer. By letter dated May 25, 2011
Leffler registered his disappointment that the Respondent’s proposal was again voted down by
the membership, and went on to state:
After approximately eleven bargaining sessions over six months, we were hopeful that
the one issue remaining after we accepted all other union proposals on open issues, i.e.,
employee contributions to health care premiums, would not prevent us from finally
having a new contract. As you know, the media has carried news reports that other
unions and employers across the country have agreed to increases in employee
contributions to health care premiums. We believe our proposal to be very reasonable
under the circumstances that we have thoroughly discussed.
As we have previously advised, the health care premium issue is critical to us and we do
not foresee that we will change our position on it. While we are certainly willing to
consider any change in the Union’s position on this issue, both parties’ recent
unwillingness to further compromise on this issue has convinced us that we are at an
impasse in our effort to reach agreement on a successor contract.
Therefore, please be advised that it is our intent to implement our final offer effective
June 1, 2011. We encourage you to work with us on maintaining our relationship
despite our inability to reach agreement on all items necessary for a successor contract
and we hope that your members will reconsider their rejection of ratification.

6 enuso’s testimony indicates that because the April 28, 2011 final offer was identical to the
April 11, 2011 proposal and was not presented to him until after the verbal exchange, he
believed that the Respondent had at that time decided to change the proposal to a final offer in
retaliation for his outburst. Clearly this was not the case. I credit Leffler and find that the
Respondent had planned to make the final offer and therefore had prepared the final offer
language in advance of the meeting so that there would be no doubt of the Respondents
position.
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enuso replied by letter dated June 1, 2011. The letter states that the Union had made
significant movement by its proposal at the April 11, 2011 meeting, which the Respondent
rejected; that the Union had been prepared to make a counteroffer at the April 28 meeting until
the threat by Chastain abruptly ended the negotiations; and that “The Company’s claim to
‘impasse’ is false.” The letter goes on to state:
The Company has repeatedly told the Union Committee (if not at every session) due to
an arbitration decision that favoured (sic) the Union on Health Care approximately four
(4) years ago the Company will now demand employees ‘catch up’ and pay premiums in
some instances of one third their salary per week.7 This is pure retaliation for losing the
arbitration.
This is bargaining in bad faith.
The Union has repeatedly told the Federal Mediator it is willing to resume negotiations.
This was after the membership on May 20th rejected the Company’s firm and final by one
hundred per cent (100%)
Once again I will reiterate our members have voted. We do not vote the same offer
twice as you suggested. Should the Company return to negotiations and the offer is
changed another vote would be taken.

The Respondent implemented its final offer on June 1, 2011 as it had stated it would in
its May 25, 2011 letter.
Thereafter, the sequence of events material to the complaint is summarized as follows:
The parties briefly met again but no face-to-face bargaining took place, and the parties
exchanged emails; all of the unit employees walked off the job; employees, who failed to show
up for work the next day were issued warning notices for missing work; all of the unit employees
participated in a strike; during the strike the Respondent placed a sign outside its premises
advising the strikers of how many new applicants had applied for their jobs; the Respondent
advised the Union that the strikers had been permanently replaced; an additional bargaining
session was held; and some replaced strikers who inquired about withdrawing their 401(k) funds
were told they were not eligible to do so. These events are set forth below.
The parties met again on June 2, 2011. It was a very brief meeting. According to
Leffler, enuso said the Union had another proposal to present. Leffler asked enuso to hand it

7 This language, according to the Respondent, is misleading. The Respondent maintains
that in fact under the Respondent’s implemented final offer (infra), which includes a wage
increase, the unit employees without health insurance would receive a substantial raise, and the
take-home pay of unit employees with health insurance would decrease by approximately 1%
for the first two years of the contract; however, during the third year of the contract the take-
home pay of employees’ with dependent coverage would decrease significantly: $22 per week
for employees with “Employee & Children” coverage; $46 per week for those employees with
“Employee & Spouse” coverage; and $75 per week for those employees with “Employee &
Family” coverage.
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to him so he could review it and “get back to him.”8 enuso refused to hand the proposal to
Leffler, but emailed it to him later that day. Both enuso and Rubin Martinez Sr. testified that
they were surprised and perturbed that Leffler was not there to negotiate. Rather, Leffler did not
even sit down. He merely told them that the Respondent had implemented its final offer on
June 1, 2011, the day before the meeting. enuso asked what it would take to stop the
implementation, and Leffler answered, “We will continue to entertain any offers you send us,
email them to me or send them to me.” In effect, according to Martinez Jr., Leffler was saying,
“Keep sending me offers until . . . I get the one I Iike.”
The proposal enuso emailed to the Respondent that day contained only one change
from the Union’s previous proposal, namely, changing the 10-year benefit to a 12-year benefit,
so that free medical insurance would be given to employees with 12 or more years of service.
This would not have affected any of the seven current employees with dependent medical care
as each of these employees had twelve or more years of service.
Leffler replied to this proposal the following day, June 3, 2011, stating, inter alia, that the
Respondent had previously advised the Union that the Respondent did not intend to change its
position on medical premiums and the Union had not changed its position; that the Respondent
would be happy to meet again if the Union would commit to moving off its position; and that “
We have carefully reviewed your email and, since your position on the only open issue has not
changed in any significant way, we again reject it.”
On Friday, June 3, 2011, after having been told what had happened at the meeting the
preceding day, all 11 unit employees walked off the job early. Three of these employees failed
to show up for scheduled work on the following day, Saturday, and had not called in to their
supervisor to report that they would be absent. According to Rubin Martinez Jr., as a result of
the absence of these three employees the entire shift was sent home after “a couple of hours
tops,” because the absent employees happened to be the three individuals who knew how to
run a particular machine and “we couldn’t run the shift.” The three employees returned to work
the following Monday, June 6, 2011.
While it was unusual for Leffler and Chastain to become involved in such matters, it was
decided that they, rather than the employees’ supervisor, Mike Salaz, should interview each of
the employees to ensure, pursuant to counsel’s instructions, that there would be no reference to
the Friday walkout. Leffler testified, “Given the situation, we called our attorney and asked for
advice and he recommended that JD Chastain and I do it ourselves to make sure the questions
were asked properly.” Leffler and Chastain met with the employees at the end of the shift that
Monday, June 6, 2011. Leffler took notes while Chastain conducted the interviews. The
employees were interviewed individually. Both Shop Manager Salaz and Shop Steward Rubin
Martinez Jr., were present for each interview.
Leffler testified that each of the employees was asked why he had neither come to work
nor called in on Saturday. According to Leffler, strikes and walkouts were not mentioned during
the interviews; and none of the employees was asked whether their absence on Saturday was
an extension of the Friday walkout or whether they were striking or engaged in a walkout on
Saturday. Nor did any of the three say they had been engaged in a walkout. Rather, each gave

8 While Leffler did not so testify, according to a subsequent email he sent enuso he had
been waiting for 30 minutes for enuso to arrive and had previously scheduled another
appointment as he anticipated the meeting would be brief.
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a different reason. Leffler testified that Juan Ybarra was asked, through an interpreter, why he
had not come to work or called in. Ybarra, who held up a prescription bottle, said that he had
been sick or “hurting,” adding something like “why bother” to call in. George Clark was asked
the same question. Clark replied that he was sick and at first simply forgot to call in; then, when
he remembered, he could not find his cell phone.9 Rubin Martinez Sr. was asked the same
question. He stated the union contract did not require him to come in on Saturdays, and added
that he would not be coming to work the following Saturday either.10 A copy of the contract was
produced and it was pointed out to Martinez Sr. that, contrary to his statement, the contract did
not say that workdays were only Monday through Friday.
Martinez Jr. testified that at the outset of each interview Chastain “asked if it was some
kind of work slowdown, if. . . somebody told them not to come in and were we trying to
slowdown or something. It was just some kind of work slowdown.” Rubin Martinez Sr., one of
the employees who had been absent, and the only one of the three employees who testified
regarding the interview, did not corroborate the testimony of Martinez Jr. on this point. Rather,
Martinez Sr.’s brief account of the interview is as follows: Chastain “began the meeting” by
asking him “why I wasn’t there on Saturday.” Martinez, Sr. replied that “I didn’t have to answer
him because it was not a regularly scheduled day.” According to Martinez Sr. there was
disagreement regarding what the regularly scheduled workweek was, and “that’s pretty much
where it ended.”
Both Leffler and Chastain testified that to their knowledge no bargaining unit employee
had previously failed to call in to report that he would be absent. Chastain testified that either
before or after the interviews he verified this with Shop Manager Salaz, who told him that he,
Salaz, could recall no instance when a bargaining unit employee had been a no call/no show.11
Leffler and Chastain, not Salaz, made the decision to discipline all three employees by issuing
them a written warning.
As a result of the interviews, on the following day, June 7, 2011, Clark and Martinez Sr.
were, in the presence of Leffler, Chastain and Salaz, given written warnings, signed by Salaz,
for not showing up or calling in to report their absence on Saturday. The attachment to Clark’s
“Warning Report” states that during the interview, “Your supervisor mentioned that this was very
unusual because you had always called in the past.”12
Martinez Sr. testified that both he and Clark had each been employed by the
Respondent for 36 years and neither employee had ever received a written warning for
anything. He testified that it was “pretty common, people don’t show up to work, they never get
written up. Once in a while, somebody will tell them something. Sometimes they don’t get told
anything.” Martinez Sr. related the following examples of such incidents: A recent instance of an
employee who took a trip to Mexico and didn’t return for 2 days and, upon returning to work, the
employee was asked why he didn’t show up or call in and was not given a warning; an
employee who quit after he was taken to the office for discipline, and came back to work several
days; an employee who continually refuses to work on Saturdays because he has another part-
time job on Saturdays;; an employee who is late almost every day and often doesn’t show up
on Saturdays. Regarding all of the above hearsay examples, Martinez Sr. was not asked nor

9 Neither Ybarra nor Clark testified in this proceeding.
10 In fact, Martinez Sr. did come to work the following Saturday.
11 Salaz did not testify in this proceeding.
12 Ybarra was not given the written warning that had been prepared for him as he never
returned to work after June 6, 2011.
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did he testify that he was involved in these matters or was privy to discussions between
supervision and the employees involved. Nor did Martinez Sr. testify that during his 36 years of
employment he had ever failed to call in to his supervisor to report that he would be unable to
come to work.
Shop Steward Martinez Jr., asked whether he was aware of employees who have
missed shifts and failed to call in to work, testified that “I’ll be the first to tell you, I have done it
myself.” Regarding this matter, Martinez Jr. testified, “I just basically ran my course throughout
the day and I talked to Mike Salaz in the morning when he came in and was talking (sic) to and
that was it.” Thus, he did not receive a writeup although apparently he was “talked to” by Salaz.
Martinez, Jr., who has been employed since June 9, 2008, did not testify when during his
employment this incident occurred.
enuso testified that the Union never filed a grievance over the warning notices give to
Martinez Sr. and Clark because “the grievance would have no merit” as the employees “were
wrong.”
The Union called a strike commencing on June 21, 2011. All bargaining unit
employees went on strike. On June 28, 2011 the Respondent posted a large sign outside its
premises, which remained posted for a short period of time until, as enuso testified, “It fell
down.” The sign stated:
STRIKER
REPLACEMENT
APPLICATIONS
RECEIVED
125+
Leffler testified that the intent of the sign was to encourage the strikers to consider returning to
work. The Respondent had not, at that point, hired any replacements. The strikers did not return
to work, and in early July 2011 the Respondent permanently replaced all of the strikers. It so
notified the Union of this on July 15, 2011.
The parties met again on July 14, 2011. The Union verbally (and later by two
July 18, 2011 emails) proposed that it would accept the Respondent’s phase-in schedule for
medical premiums for employee-only coverage provided that the Respondent agreed to “red
circle” the current employees with more than 10 years of service so that they would continue
receiving free medical coverage; future hires, however, would not have the free medical benefit
regardless of tenure. The Union also proposed that “all employees will pay employee coverage
regardless of years of service should they opt for coverage.” 13
Leffler replied to this latest proposal by email dated July 19, 2011 as follows:

13 While the ramifications of this latter proposal were not explored on the record, the
proposal apparently means that current uninsured employees who decided to opt for dependent
coverage medical insurance after they accrued 10 or more years of service would not receive
free medical insurance; rather, they would pay the premiums corresponding to employee
coverage even though they signed up for dependent coverage.
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Thanks for your emails reiterating and clarifying the verbal offer you made last Thursday
on medical premiums. We appreciate the movement the Union has made on employee-
only coverage.
JD [Chastain] and I have discussed your proposal and we have decided not to accept it.
As you know, the dependent coverage represents the bulk of the cost of the medical
coverage. Since all of the employees who have dependent coverage had more than 10
years of service when we implemented our final offer, red circling free dependent
coverage for them and eliminating the 10-year benefit for new hires does not equate with
meaningful improvement for the Company at any time under a new 3-year contract.
Leffler testified that the essence of the Union’s proposal is that “ten years from ratification we
wouldn’t have to provide for [free] insurance to that future hired employee.” Thus, this was a
change that could not benefit the Respondent for 10 years, and was unacceptable as it did not
accomplish what the Respondent had set out to negotiate from the outset of negotiations,
namely the elimination of the10-year benefit for current employees.
By July 5, 2011, the Respondent had hired a full complement of new employees to
permanently replace the striking employees. It so notified the Union of this fact by email dated
July 15, 2011. enuso advised the striking employees of this, telling them that being
permanently replaced was in effect the same as being fired. Some of the strikers wanted to
withdraw their 401(k) funds, and enuso contacted Leffler about this. Leffler apparently believed
this would not be a problem as he sent enuso an email giving him the phone number of the
Respondent’s HR representative and advising enuso to have the employees call the
representative; enuso testified that in the email Leffler said the HR representative “would get
the forms ready so they could withdraw their money.” Martinez Jr. and other employees called
the HR representative and were told that they were still active employees and as active
employees they could take a loan against the moneys; however an employee could not
withdraw the full amount unless he was over 55 years old and either quit or had been
terminated.
Shortly after the strike began enuso asked Leffler if the Respondent would pay the
striking employees for accrued vacation pay. They discussed the matter, and it was agreed that
the Respondent would pay all of the employees up to 1 week of paid vacation. The Respondent
did so.
On September 23, 2011 the Union made an unconditional offer to return to work on
behalf of all the strikers. The Respondent replied stating that because the strike was an
economic strike and the strikers had been permanently replaced it would take back strikers as
vacancies arose. enuso replied that the strike was an unfair labor practice strike and all the
strikers were entitled to immediate reinstatement. Leffler, by email dated October 13, 2011,
replied:
We have carefully considered the Union’s offer to return to work. Our position has not
changed. We firmly believe that we implemented our final offer only after bargaining to a
lawful impasse and, therefore, the strike was an economic one. As we informed you on
October 5, 2011, we will offer strikers the opportunity to fill vacancies as they arise.
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C. Analysis and Conclusions
The overriding issue from the outset of negotiations was free medical insurance  the
10-year benefit  for current employees. The Respondent wanted to eliminate the benefit for its
11 union-represented employees and require them to pay what its other approximately 230
nonunion employees were paying for the same coverage. The Union wanted the unit employees
to continue receiving free medical insurance during their tenure with the Respondent. Both the
Respondent and Union were in good faith attempting to resolve their differences over this critical
contract issue. After many bargaining sessions, often with the participation of FMCS mediators,
and concessions by the Respondent in an attempt to make its proposed elimination of the 10-
year benefit more palatable to the Union, the parties had no further proposals to present.
Indeed, after the Respondent had presented it last and final offer, the Union not only had
nothing further to propose but was also insistent that there would be no agreement unless the
Respondent changed its last and final offer. Thus, it is significant that on May 29, 2011 the
Union’s secretary-treasurer, Andy Marshall, told Leffler and Chastain that there would be no
new contract unless the Respondent changed its position on medical insurance, similarly, on
June 1, 2011 enuso wrote to the Respondent, inter alia, as follows:
Once again I will reiterate our members have voted. We do not vote the same offer
twice as you suggested. Should the Company return to negotiations and the offer is
changed another vote would be taken.
Under the foregoing circumstances I find the parties had reached an impasse. California Pacific
Medical Center, 356 NLRB No. 159, slip op. 6-7 (2011).
Because the parties reached a lawful impasse prior to the Respondent’s announcement
of its intent to implement its final offer and the actual implementation of its final offer, I find the
announcement of intent to implement and the subsequent implementation are therefore not
violative of the Act, as alleged. I shall dismiss these allegations of the complaint.
I find no merit to the General Counsel’s contention that during the April 28, 2011
negotiating session the two statements by Chastain to enuso constituted, respectively, an
unlawful threat of unspecified reprisal and a subsequent unlawful threat of physical harm.
Chastain, in a non-threatening tone of voice, said, “If you start calling our customers, you could
be in a world of hurt.” enuso took offense at this statement and, according to Leffler’s credited
testimony, “stood up, got all the way across the table into JD’s [Chastain’s] face and was
screaming. ‘Are you fucking threatening me? Are you fucking threatening me?’” This conduct
caused Chastain to respond, “Do we need to take this outside?” Leffler immediately told enuso
that nobody was threatening him and explained that Chastain was referring to the possibility of
legal liability for “tortious interference” with the Respondent’s customers. Even after Leffler
explained Chastain’s intent, enuso was not to be placated and told Leffler to “Take your tortious
and shove it.” While the record evidence does not indicate how long the exchange lasted, it was
obviously very brief. I do not find that this exchange amounted to anything more than an initial
misunderstanding on the part of enuso, a spontaneous response from Chastain who was being
cursed at, and a conciliatory statement by Leffler who immediately diffused a possible
escalation of the situation. Thus, Leffler advised enuso, as well as the unit employees on the
bargaining committee who were present, that Chastain’s statement should not be understood as
a personal attack against enuso but rather as a cautionary warning that contact with customers
could result in legal proceedings. I shall dismiss this allegation of the complaint.
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Nor do I find, as maintained by the General Counsel but not alleged in the complaint,
that the Respondent bargained in bad faith by changing a prior bargaining proposal to a last and
final offer in retaliation for enuso’s profanity and conduct toward Chastain. It is clear, and I find,
that the Respondent had decided to present the proposal as its last and final offer in advance of
the meeting, and did so at the meeting for reasons unrelated to enuso’s outburst.
It is alleged that the post-impasse June 6, 2011 interrogation of employees Ybarra, Clark
and Martinez, Sr. was unlawful because, according to the complaint, “the Respondent, by Leffler
and Chastain . . . interrogated its employees about their Union and concerted activities.” I find
no merit to this assertion. In fact, the record shows, and I find, that Leffler and Chastain
assiduously avoided, on the advice of counsel, interrogating Ybarra, Clark and Martinez Sr.
about such matters.14 Rather, they wanted to know why these three employees, unlike all the
other employees who walked out the previous day, did not show up for work on Saturday,
June 4. 2011. While the complaint alleges that these three employees “continued to engage in
the [June 3, 2011] strike,” the employees did not tell Chastain and Leffler that they were
continuing the walkout from the day before. Rather, they gave other excuses unrelated to union
and/or protected concerted activity. Leffler testified that he took them at their word, and that he
and Chastain decided to give them written warnings for failing to report to work and failing to call
in. While the complaint alleges that Clark and Martinez Sr. were each issued “an unwarranted
written discipline,” even the employees’ business representative maintains that the Union filed
no grievance over the matter because the employees “were wrong.”
The General Counsel argues that under the circumstances the evidence supports the
conclusion that the written warnings were in retaliation for the three employees’ concerted
activity, as it was not the custom of Shop Manager Salaz to issue written warnings for
infractions of this nature. While I find that the record evidence is insufficient to show what
Salaz’s practice is with regard to such matters, it is clear that Salaz did not make the
determination that the written warnings be issued.15 Rather, it was Leffler and Chastain. Under
the circumstances, Leffler and Chastain had legitimate reasons for conducting the interviews
and imposing the discipline, regardless of whether Salaz would have done so.16
It is clear that the June 21, 2011 strike was not an unfair labor practice strike, as alleged
in the complaint, as the Respondent committed no unfair labor practices. The strike was clearly
an economic strike from its inception. I so find. I shall dismiss this allegation of the complaint.
Furthermore, as the strike was an economic rather than an unfair labor practice strike, I find it
was not unlawful for the Respondent to advise its striking employees of the number of “striker
replacement applications” it had received in an effort to induce the strikers to return to work.
See, River’s Bend Health & Rehabilitation Service, 350 NLRB 184, 184-187 (2007). Nor was it
unlawful for the Respondent to hire permanent replacements for the strikers, notify the Union
that the strikers had been permanently replaced, and refuse the Union’s unconditional offer to

14 I do not credit the contrary testimony of Martinez Jr. on this point, as it was not
corroborated by Martinez, Sr. and moreover, Leffler appeared to be a credible witness.
15 Martinez Sr. testified that during the interview Chastain “stood over” Salaz and handed
the warning notice to him stating, “here Mike [Salaz] sign this.“ Salaz signed the notice and
then it was handed to Martinez Sr.
16 I credit their testimony that to their knowledge no bargaining unit employees had
previously been no-calls/no-shows. However, even if this were not the case, the explanations
given by Clark and Martinez Sr., as well as Ybarra, were particularly weak, and did not provide
the Respondent with a rationale to simply overlook or excuse their disregard of company policy.
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return to work on behalf of the permanently replaced strikers. I shall dismiss these allegations of
the complaint.
It is alleged that the statement by the Respondent’s HR representative to the effect that
the replaced employees could not withdraw their 401(k) funds from the Respondent’s pension
plan is violative of Section 8(a)(1) of the Act. Whether the HR representative was correct or
not, it has not been demonstrated that the Respondent attempted to either mislead the
employees or prevent them from withdrawing their funds as a form of retaliation for their union
activities. The pension plan document, introduced in evidence in this proceeding, and to which
the Union has always been entitled as the representative of the unit employees, contains the
provisions under which the employees may or may not be permitted withdraw of such funds,
and the Respondent has no authority to alter its provisions. Indeed, Leffler, who had earlier
made an agreement with the Union to provide striking employees with vacation pay, was clearly
trying to be accommodating when he advised enuso that he believed the employees should
have no problem withdrawing their funds, and suggested that they could receive assistance in
this regard from the Respondent’s HR representative. I shall dismiss this allegation of the
complaint.
On the basis of the foregoing, I shall dismiss the complaint in its entirety.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C. April 23, 2012
____________________
Gerald A. Wacknov
Administrative Law Judge

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.