Show Industries

National Labor Relations Board - Board Decisions

Sep 27, 1993

312 N.L.R.B. 447 (N.L.R.B. 1993)

447
312 NLRB No. 84
SHOW INDUSTRIES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. The Respondent has ex-
cepted to the judge’s finding that shortly after the August 16, 1991
layoffs the Respondent hired three new employees. The Respondent
contends that this finding is contrary to the record. In adopting the
judge’s finding, we note that Jt. Exh. 17 indicates that employees
Marco Rodriquez, Daniel Guillen, and Jose Jimenez were hired on
September 10, 1991. We correct the judge’s statement that the se-
niority list reflects no other employee with a seniority date preceding
German Jerez’ initial date of hire and only three other employees
more senior to Miguel Falcon and Jose Marroquin. We find that
there were two employees senior to Falcon and four employees sen-
ior to Jerez and Marroquin. However, that does not affect the result
in this case, because we agree with the judge’s finding that the three
discharged employees were among the most senior of the Respond-
ent’s employees.
2 Chairman Stephens and Member Raudabaugh find it unnecessary
to address the judge’s conclusion that the Respondent violated Sec.
8(a)(5) and (1) of the Act by implementing its new wage schedule
in January 1992. In their view, the Respondent’s exceptions to this
conclusion do not meet the minimum requirements of Sec. 102.46(b)
of the Board’s Rules and Regulations. The Respondent merely cites
to the judge’s decision and fails to allege either in its exceptions or
its supporting brief, the particular error it contends the judge com-
mitted in so concluding, or on what grounds it believes the judge’s
decision as to this violation should be overturned. In these cir-
cumstances, Chairman Stephens and Member Raudabaugh find in ac-
cordance with Sec. 102.46(b)(2) that the Respondent’s exception on
this point may be disregarded.
Contrary to his colleagues, Member Devaney finds that the Re-
spondent’s exception to that portion of the judge’s decision in which
it is found that the Respondent violated Sec. 8(a)(5) of the Act by
failing to bargain over wage changes, while not in strict compliance
with the Board’s Rules, is sufficient to warrant Board consideration.
On the merits, Member Devaney agrees with the judge’s finding, for
the reasons stated by him, that the Respondent’s unilateral imple-
mentation of a new wage schedule plan in January 1992 was unlaw-
ful.
3 We have modified the judge’s recommended Order to provide
traditional reinstatement language for employees Falcon, Jerez, and
Marroquin. We have substituted a new notice to conform to the tra-
ditional reinstatement language in the Order.
4 170 NLRB 389 (1968).
Show Industries, Inc. and General Warehousemen,
Local 598, International Brotherhood of Team-
sters, AFL–CIO. Cases 21–CA–28364 and 21–
CA–28497
September 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 19, 1993, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
AMENDED REMEDY
In the remedy section of his decision, the judge
properly stated that the Respondent would be required
to bargain with the Union concerning the effect on em-
ployees of the sale of its City One Stop operation. The
judge correctly determined that the appropriate remedy
for employees terminated on August 16, 1991, other
than Miguel Falcon, German Jerez, and Jose
Marroquin, was that prescribed in Transmarine Navi-
gation.4 However, the judge erroneously awarded
backpay from August 16, 1991, the date the employees
were discharged. We amend the judge’s remedy to re-
quire, in accordance with Transmarine Navigation,
supra, that backpay be awarded commencing 5 days
after the date of this Decision and Order. In all other
respects we adopt the remedy section of the judge’s
decision. We shall modify the judge’s recommended
Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Show
Industries, Inc., Los Angeles, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) Make all employees who were terminated on
August 16, 1991, as a result of the sale of the City
One Stop operation, other than Miguel Falcon, German
Jerez, and Jose Marroquin, whole in the manner set
forth in the amended remedy section of the Board’s
Decision and Order.’’
2. Substitute the following for paragraph 2(d).
‘‘(d) Offer Miguel Falcon, German Jerez, and Jose
Marroquin immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the amended remedy section of the Board’s Decision
and Order.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless shown otherwise, all other dates refer to the 1991 cal-
endar year.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with General Ware-
housemen, Local 598, International Brotherhood of
Teamsters, AFL–CIO as the exclusive representative of
the following employees we employ:
All packers, shipping and receiving clerks, order
pickers, stockers, fixture handlers, warehouse em-
ployees, poster shippers, truck drivers, janitors,
and inventory employees employed by our facility
located at 2551 South Alameda Street, Los Ange-
les, California; excluding all other employees, of-
fice clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT terminate employees in order to dis-
courage membership in General Warehousemen, Local
598, International Brotherhood of Teamsters, AFL–
CIO, or any other labor organization, or because they
testify in Board proceedings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees because they exer-
cise their rights guaranteed by the National Labor Re-
lations Act.
WE WILL, on request, bargain with General Ware-
housemen, Local 598, International Brotherhood of
Teamsters, AFL–CIO concerning the effects on our
employees of the sale of City One Stop and concerning
the wage schedule we implemented in January 1992,
withdrawing that schedule if requested to do so by
Local 598.
WE WILL offer Miguel Falcon, German Jerez, and
Jose Marroquin immediate and full reinstatement to
their former jobs, or if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them.
WE WILL notify Miguel Falcon, German Jerez, and
Jose Marroquin in writing that we have expunged any
reference to their unlawful August 1991 terminations
from our records and that we will not rely on those
terminations in any future personnel actions involving
them.
WE WILL pay employees laid off on August 16,
1991, other than Miguel Falcon, German Jerez, and
Jose Marroquin, for the wages they lost, with interest,
during the period set forth in the Decision and Order
of the National Labor Relations Board.
SHOW INDUSTRIES, INC.
Ami Silverman, Esq., for the General Counsel.
Robert M. Lieber and Marjorie S. Fochtman, Esqs. (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, California,
for the Respondent.
Stephen Yoder, Esq., General Counsel, Show Industries, Inc.,
of Los Angeles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard
this matter on May 21 and 22, 1992, at Los Angeles, Califor-
nia. It arises from separate unfair labor practice charges filed
by General Warehousemen, Local 598, International Brother-
hood of Teamsters, AFL–CIO (Union) against Show Indus-
tries, Inc. (Respondent or Company) on November 7, 1991,
and January 31, 1992.1
On December 27, the Acting Regional Director for Region
21 of the National Labor Relations Board (NLRB or Board)
issued a complaint in Case 21–CA–28364. On March 31,
1992, the same Acting Regional Director consolidated the
two cases and issued consolidated amended complaint (com-
plaint) alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3), (4), and
(5) of the National Labor Relations Act (Act). The complaint
incorporated a notice of hearing before an administrative law
judge.
Respondent answered the complaint on April 13, 1992, de-
nying that it engaged in the unfair labor practices alleged by
the Acting Regional Director.
After carefully considering the record, the demeanor of the
witnesses, and the posthearing briefs, I find Respondent en-
gaged in the unfair labor practices alleged based on the fol-
lowing
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(5) of the Act by refusing to bargain with the Union,
the certified employee representative, since July 30 concern-
ing the effects on unit employees resulting from the sale of
its City One Stop operation, a portion of its business enter-
prise. The General Counsel alleges that Respondent violated
the same section by refusing to bargain in good faith since
October 24 concerning the implementation of a new wage
schedule applicable to unit employees.
The General Counsel further alleges that Respondent vio-
lated Section 8(a)(3) and (4) of the Act by discharging Jose
Marroquin, German Jerez, and Miguel Falcon in order to dis-
courage membership in a labor organization and because
they testified at a hearing before the Board in Case 21–RC–
449SHOW INDUSTRIES
2 Respondent’s direct outflow annually exceeds the dollar volume
established by the Board for exercising its statutory jurisdiction over
nonretail enterprises. I find that jurisdiction to resolve this labor dis-
pute lies with the Board.
3 The election followed the filing of a petition in Case 21–RC–
18569 on October 4, 1989, and the execution of a stipulation for
consent election.
4 This objection alleged that the Union offered to waive dues and
fees for employees who executed authorization cards prior to the
election contrary to the rule in NLRB v. Savair Mfg. Co., 414 U.S.
270 (1973).
5 Show Industries, 305 NLRB No. 72 (Nov. 8, 1991) (not reported
in Board volumes).
18569. Although the General Counsel alleges that Respond-
ent also violated Section 8(a)(1) of the Act derivatively by
all the foregoing conduct, no independent 8(a)(1) violations
are alleged.
Respondent admits the General Counsel’s jurisdictional al-
legations and, at the hearing, stipulated that two supervisors
named in the complaint are supervisors within the meaning
of the Act. Respondent further admits the appropriateness of
the unit alleged in the complaint, the Board’s certification of
the Union as the exclusive representative of that unit but de-
nies that the Union is the 9(a) representative of the unit em-
ployees.
Respondent admits that it notified the Union on July 30
concerning the sale of its City One Stop operation and that
it notified the Union on October 24 concerning its intention
to implement a new wage schedule but it denies that it en-
gaged in the unfair labor practices alleged in connection with
these matters or that it has unlawfully refused to bargain with
the Union at all. Respondent also admits that it discharged
the three employees named above but denies that it engaged
in any unfair labor practice by doing so.
B. Background
Respondent, a California corporation which maintains its
principal facility in Los Angeles, California, is engaged in
the wholesale merchandising of recorded music, videos, and
related products.2 The Company, a subsidiary of an entity
known as Shamrock Holdings (Shamrock), distributes pri-
marily to Music Plus, a 91-store retail subsidiary of Sham-
rock mainly located in areas throughout southern California.
One aspect of this dispute grows out of the sale of Re-
spondent’s City One Stop division in August. This division
distributed audio and video products to numerous unrelated
‘‘mom and pop’’ retail outlets. Essentially this division was
a miniaturized version of the remainder of Respondent’s
warehouse operation designed to provide full service for
independent retail outlets in its customer base. However, a
few functions—for instance, returned merchandise from the
independent retailers—were handled by the larger warehouse.
Respondent classifies its unit employees as drivers, jani-
tors, lead persons, packers, pickers, pricers, receivers, recy-
clers, shippers, stockers, and support personnel, all engaged
in work typical to a warehouse distribution facility in a vari-
ety of departments organized along product or functional
lines.
At the time of this hearing, Respondent employed approxi-
mately 111 employees, including its supervisors and man-
agers. This work force is considerably below the 190 em-
ployees eligible to vote in a 1989 NLRB election. However,
apart from the 15 employees laid off in connection with the
City One Stop sale, Respondent’s employee complement
shrank as business declined through 1990 and 1991 by attri-
tion and individual terminations.
C. The Representation Proceeding
In 1989, the Union conducted an organizing campaign
among Respondent’s employees which culminated in an
NLRB election on November 30 of that year.3 Employees
chose representation by nearly a 2 to 1 margin. The Com-
pany filed four timely objections to the election but, in a re-
port issued on January 2, 1990, the Regional Director found
that all objections lacked merit and recommended that the
Board certify the Union.
Pursuant to Respondent’s exceptions to the Regional Di-
rector’s report, the Board remanded the proceeding on Sep-
tember 7, 1990, for a hearing on two of the objections. One
remanded objection dealt with questions arising from damage
to the election ballot box between voting sessions caused by
an automobile accident involving the Board agent who was
transporting the ballot box. The other remanded objection
raised a Savair issue.4
Subsequently, Hearing Officer Susan L. Seeck conducted
3 days of hearings in October and November 1990 concern-
ing the remanded objections and, following the resolution of
certain interim appeals to the Board, issued her report on
February 27. She found the two remanded objections lacked
merit and recommended that the Board certify the Union
which it did on May 21 after rejecting Respondent’s excep-
tions to Seeck’s report as untimely filed.
D. The Certification Challenge
Following the Union’s certification, its secretary-treasurer,
Joe Campbell, wrote Company President Lou Fogelman ask-
ing to meet for the negotiation of a collective-bargaining
agreement. Campbell’s May 30 letter further asked that the
Company furnish information in advance of the meeting, in-
cluding employee home addresses and phone numbers, dates
of hire, current pay rates, pay policies, classifications, bene-
fits, and recognized holidays.
Attorney Lieber responded to Campbell declining ‘‘to
enter into a formal bargaining relationship . . . until our con-
tentions have been ruled upon by the appropriate administra-
tive body or court.’’ Lieber also declined to furnish the infor-
mation requested on the ground that the request was ‘‘pre-
mature.’’ The Union renewed its request to bargain and for
information following the rejection by the Board of Respond-
ent’s motion for reconsideration pertaining to the timeliness
of its exceptions. Attorney Lieber again declined both re-
quests asserting Respondent’s intention to test the lawfulness
of the certification in the court of appeals.
Thereafter, the Union filed an unfair labor practice charge
in Case 21–CA–28159 alleging that Respondent’s refusal to
bargain and supply information violated Section 8(a)(5). On
November 21, the Board issued a Decision and Order grant-
ing the General Counsel’s Motion for Summary Judgment
and finding that the Company had unlawfully refused to rec-
ognize and bargain with the Union.5 Enforcement of that
Order is presently pending in the Court of Appeals for the
Ninth Circuit.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Presumably at this final meeting, a decision was made to retain
Pedro Valencia-Figueroa, one of the employees on the first four
pages of Mitchell-Guenett’s divided list.
7 Union Attorney Phillips wrote Yoder on September 6 asking that
the seniority list be furnished ‘‘within one week.’’ No mention is
made in Phillips’ letter about effects bargaining. Yoder supplied the
list by a letter dated September 17.
8 Falcon testified that he also processed returns from the Music
Plus stores and that he filled in for the department manager when
he was absent.
E. The Sale of City One Stop
By letter dated July 30, Company General Counsel Yoder
notified the Union that Respondent had entered into an
agreement to sell its City One Stop operation to a new owner
and inviting contact from the Union ‘‘[i]f you wish to dis-
cuss this event any further, or the potential impact on ware-
house employees.’’ When Union Agent Ruben Corral tele-
phoned Yoder the following week to inquire what effect the
sale would have on employees, Yoder told Corral that he
‘‘didn’t know’’ but promised a response to Corral’s question
after he ‘‘talk[ed] to his people.’’ Although Corral did not
specifically ask to meet over the matter at that time, he told
Yoder that the Union wanted to ‘‘do something’’ for the City
One Stop employees.
During the same week of the Corral call, Yoder held one
or more meetings with the warehouse manager, Hermes
Salazar, and the Company’s director of personnel and pay-
roll, Patricia Mitchell-Guenett. Yoder instructed Salazar to
select 15 employees for layoff from the entire employee
complement based on their salary, skills, job performance,
and counseling (disciplinary) records even though only 12
employees were directly employed in the City One Stop op-
eration at the time. According to Yoder, the salary criteria
was designed to reduce the Company’s payroll costs by ter-
minating workers with high wage rates.
Salazar testified that he selected individuals for layoff after
consulting with the department managers. Mitchell-Guenett
testified that she met with Yoder and Salazar late in the
week preceding August 14 or early in the week which in-
cluded August 14 to review list of 23 employees who appar-
ently were under consideration for layoff. As a result of this
meeting, Yoder instructed Mitchell-Guenett to split the list
between those who would be laid off and those who would
be retained. Mitchell-Guenett thereafter prepared a 5-page
list; the first 4 pages contain an alphabetized list of 16 em-
ployees who, with a single exception, were later terminated
and the fifth page lists those employees who were retained.
Of the eight employees retained, six were City One Stop em-
ployees.
Early on the morning of August 14, Yoder posted a letter
to Corral advising that 15 employees would be terminated on
August 16. The letter states that ‘‘[w]e are in the process of
identifying the employees who will be affected’’ and that
their identity would not be known ‘‘until late tomorrow or
sometime Friday morning.’’ Yoder advised ‘‘that the affected
group will consist of some of the workers who previously
performed work for City One Stop and that the balance of
the City One Stop workers will be absorbed in to the regular
warehouse operation resulting in the displacement of some of
the regular warehouse employees.’’ Yoder concluded by in-
viting Corral to ‘‘contact me if you would like any additional
information concerning the foregoing.’’ Corral said that he
received this letter the following day or the day thereafter.
Thereafter, Yoder met with Mitchell-Guenett and Salazar
at 11 a.m. on August 14. At this meeting, the three agreed
on the identity of the employees who would be terminated
and, coincidentally, on the City One Stop employees who
were to be transferred to the regular distribution operation.6
Yoder questioned whether there was a balance between
union supporters and nonsupporters within the group to be
terminated. Salazar speculated about the union sympathies of
each employee about to be terminated but, at the hearing,
both Yoder and Mitchell-Guenett professed an inability to re-
call anyone Salazar identified as a likely union supporter.
At approximately lunchtime on August 16, the 15 employ-
ees were called to a conference room individually and termi-
nated effective immediately.
Within a week or two, Corral telephoned Yoder again.
Corral claims that he told Yoder on this occasion that he
wanted to bargain over the effects of the City One Stop sale
and asked for a seniority list. Corral asserts that Yoder prom-
ised to get back to him about bargaining and asked that he
submit a written request for the seniority list.7
Although Yoder acknowledged that Corral’s account about
the seniority list request in this second conversation, he em-
phatically denied that Corral asked to bargain about the City
One Stop sale effects. All agree that no effects bargaining
ever occurred and no evidence shows that any other request
to bargain about this subject was ever made.
F. The Alleged Unlawful Discharges
Falcon, Jerez, and Marroquin were among the 15 employ-
ees terminated on August 16. None of these men were di-
rectly employed in the City One Stop operation although Fal-
con, and two others who were not laid off, processed City
One Stop returns in the course of their work in the regular
warehouse returns department.8 Jerez worked as a picker in
the cassette department; Marroquin worked as a receiver in
the same department.
At the time, the three men were among the most senior
employees: Falcon was first hired on July 9, 1981; Jerez was
first hired on November 13, 1980; and Marroquin was first
hired on June 12, 1981. However, Jerez quit on May 31,
1985, to leave the country but was reemployed in October
7 of that year and worked continuously thereafter until his
August 16 termination. The seniority list furnished to the
Union on September 17 reflects no other employee with a se-
niority date preceding Jerez’ initial date of hire and only
three other employees more senior to Falcon and Marroquin.
In addition, Jerez’ $8.25-per-hour pay rate was the highest
among the Company’s nonsupervisory employees as of Au-
gust 16. Falcon and Marroquin earned $7.25 and $7.20, re-
spectively, at that time. Excluding these three men, the me-
dian hourly rate of the 12 others laid off with them was
$5.625; their average hourly rate was $5.825. The wage rates
for three of the six City One Stop employees retained were
above that average hourly rate.
At the beginning of the 1989 organizing drive, Falcon and
Marroquin met with Union Organizer Gonzales and were
given union authorization cards. They in turn selected other
individuals to assist in soliciting employees to sign the union
451SHOW INDUSTRIES
9 In her brief, counsel for the General Counsel stated that she has
reason to believe that Jerez did not appear at the hearing because
he had returned to his native El Salvador and was unable to obtain
a visa in sufficient time to permit his return for the hearing.
10 When first asked what he had said to Jerez, Salazar responded
only that ‘‘[w]e had a conversation.’’ When asked again, he an-
swered:
We—I didn’t say anything about the Union. He said I believe
and I—whatever I believe—and what I believe and I believe
what I believe.
cards. This group of about 10 employees comprised the
Union’s original employee organizing committee.
Falcon, Jerez, and Marroquin all attended preelection
union meetings. Marroquin distributed handbills in the com-
pany parking lot at times prior to the election and served as
the Union’s official observer at the NLRB election.
Hearing Officer Seeck’s objections report reflects that Fal-
con, Jerez, Marroquin, and Alfredo Larios-Cruz, another em-
ployee still employed, testified on the Union’s behalf at the
objections hearing concerning the Savair objection. Essen-
tially, they sought to rebut testimony by employee witnesses
presented by the Company concerning impermissible state-
ments purportedly made by union agents about the Union’s
dues and fees waiver policy. The report also reflects that
Marroquin and Jerez testified about the Union’s distribution
of handbills explaining its dues and fees waiver policy at
preelection union meetings and at the Company’s parking lot.
Ultimately, Hearing Officer Seeck concluded that the evi-
dence failed to support the claim that Union Organizer
Gonzales made any impermissible statements about the waiv-
er of dues and fees. She further concluded that an impermis-
sible explanation of the Union’s policy on this subject by an
employee organizer was overcome by the extensive distribu-
tion of the Union’s official, and legitimate, waiver policy in
writing. For these reasons, she recommended that the objec-
tion be overruled.
Apparently following the Union’s certification and Re-
spondent’s refusal to bargain, the Union staged a series of
demonstrations at certain Music Plus stores, at the Shamrock
headquarters in Burbank, California, and at the home of Roy
Disney, a Shamrock principal, in order to pressure Respond-
ent to the bargaining table for negotiations. Up to 45 com-
pany employees participated in these demonstrations includ-
ing Marroquin and Falcon. Marroquin asserted without con-
tradiction that Salazar and other managers observed some of
the demonstrations. And during the demonstration at the
Shamrock headquarters, Marroquin was interviewed for a
local television news report.
Marroquin asserted that Supervisors Salazar and Terese
Armador spoke to him about the Union approximately 10
times in the 6-month period before his termination. During
these engagements, Marroquin claims that Salazar threatened
to terminate him because he sympathized and collaborated
with the Union, and for being a witness at the objections
hearing. In addition, Salazar also purportedly told Marroquin
that it would be better for him to abandon his union activities
or he would be laid off. These statements, Marroquin
claimed, were made in the presence of several other employ-
ees, at least six of whom he identified by name. None of
those identified as present were called to corroborate
Marroquin’s account concerning Salazar’s purported threats
and the absence of only one, Jerez, was ever explained.9
Falcon testified that he received a 35-cent-per-hour pay in-
crease in late March or early April. He claimed that Salazar
informed him of the increase privately and told him that he
was receiving the raise even though he was involved with the
Union.
Salazar denied that he made the threats and disparaging
statements attributed to him by both Marroquin and Falcon.
He asserted that as he had not become the warehouse man-
ager until early 1991, he was not aware of the identity of
employees who testified at the objections hearing. Salazar,
who had been the video department manager before he was
promoted to the warehouse manager’s position, claimed that,
with but one exception, he never spoke to any of the em-
ployees about the Union because he had been cautioned
against doing so by the Company’s consultant during the
election campaign. That single exception, Salazar said, relat-
ed to a conversation with Jerez. When cross-examined on
this point, Salazar said that the Jerez conversation to which
he had referred occurred sometime in 1991. Thereafter,
Salazar denied that the word ‘‘Union’’ was ever mentioned
in that conversation and persisted in evading questions about
what, specifically, he had said to Jerez.10
Mitchell-Guenett, Salazar, and Steven Figueroa, a person-
nel payroll assistant, were present at Marroquin’s termination
interview. Salazar told Marroquin that he was being termi-
nated because City One Stop had been sold. Marroquin asked
why he was being terminated and Mitchell-Guenett told him
only that the Company had to reduce personnel. Marroquin
claims that he then asked if he was being let go because of
low yield, bad attitude, damaging company property, or fail-
ing to follow the rules, Mitchell-Guenett told him that if he
wanted an answer he would have to do it by way of a sub-
poena. Marroquin said that he then turned to Salazar and
asked again why he was being terminated. Marroquin as-
serted that Salazar responded in a ‘‘calculating and cold
manner that [it] would take all night to tell [him].’’
Although Mitchell-Guenett recalled that Marroquin asked
a couple of times why he was being let go, she denied that
she ever responded with the subpoena remark attributed to
her. Salazar and Figueroa corroborated Mitchell-Guenett on
this point and Salazar denied that he made the ‘‘take all
night’’ statement.
Falcon claims that he asked Salazar at his termination
interview if he could ask why he was being laid off and
Salazar told him ‘‘no.’’ Salazar, who could recall little about
Falcon’s termination interview, did not deny Falcon’s asser-
tion.
Over the years, Falcon’s work history reflects that he was
generally considered to be an excellent worker. At one point
he was promoted to an assistant department manager’s posi-
tion but was subsequently demoted in September 1988 based
on a poor evaluation in that capacity. Six months later, how-
ever, his evaluation noted that he had made a ‘‘[g]reat come-
back since demotion.’’ Ten months after that, he was ver-
bally counseled for allegedly telling employees to work
slowly. In March, he received a 35-cent-per-hour pay in-
crease at the time of his annual evaluation. The amount of
that increase was within the top range of increases normally
granted under Respondent’s prior pay policy.
Both Jerez’ and Marroquin’s work histories likewise re-
flect an overall excellent performance marred only by a sin-
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The two employees with questionable work histories are Valen-
cia-Figueroa who received 10 counseling notices for a variety of in-
fractions and Oscar Diaz whose absence while serving a jail term
was treated as a leave.
12 Lauer substituted for Corral who was unable to attend. Gonzales
is principally an organizer who occasionally attends bargaining ses-
sions but only in an advisory capacity.
13 At the time, Fogelman had not yet approved the wage plan so
the Union was apprised of the potential high and low hourly rates
and periodic increases for each employee category. Lieber promised
to notify the Union as soon as Fogelman’s final approval was re-
ceived.
14 In view of the conclusions reached below, I find it unnecessary
to resolve this issue. However, Respondent’s contention about
Lauer’s notes is far from frivolous and no mention is made of the
disputed request in the spate of correspondence following the De-
cember 19 meeting.
gle verbal counseling in October 1990 and March 1990, re-
spectively, for excessive talking during work hours.
With a single exception, the work histories of others who
were terminated on August 16 do not compare favorably at
all to Falcon, Jerez, and Marroquin. Moreover, the work his-
tories of two employees apparently considered for termi-
nation but eventually retained appear significantly poorer
than these three individuals and it can be argued that the re-
maining employees retained are, at best, only comparable on
paper.11
By Salazar’s account, the high hourly rates of Falcon,
Jerez, and Marroquin was the most significant factor which
led to their layoffs. Thus, he explained that of the three re-
turns department employees who performed City One Stop
work, one was transferred to another job and of the remain-
ing two, Falcon and Bertha Canelo, Canelo did ‘‘the same
job’’ as Falcon at a far lower salary. As for Jerez, Salazar
said that other pickers in the cassette department earned over
$2 per hour less and performed equal to or better than Jerez.
Salazar suggested that the Company’s production reports, not
in evidence, substantiated the relative production levels of
the pickers. Marroquin, Salazar claimed, was one of two em-
ployees performing receiving work in the cassette department
and the other employee, who earned significantly less
money, was doing an excellent job.
Salazar acknowledged that since he has been the manager,
the Company has utilized 8 to 10 temporary employees each
day. These employees are procured from an employment
agency at a cost to the Company of ‘‘about’’ $6.75 per hour.
Less than a month after the layoff, the Company hired three
new full-time employees, all at the minimum rate of $4.25
per hour.
G. The Wage Schedule Changes
Prior to January 1992, Respondent maintained an unwrit-
ten compensation scheme without hourly wage rate caps.
Employees earning $5.50 per hour or less were evaluated for
pay increases each 6 months; above that amount evaluations
were performed annually. All evaluations occurred at or near
the employee’s employment anniversary date. Following the
evaluation, wage rate adjustments could range up to 40 cents
per hour. Increases, Salazar said, never exceeded 40 cents
per hour ‘‘no matter what you do.’’
Perhaps as early as July, Respondent’s officials began to
study revisions to that pay scheme. Under the system eventu-
ally devised, employees were divided into new functional
categories. Each category was assigned a wage rate cap and
a maximum incremental increase. At the same time, the
Company undertook to revise its performance evaluation for-
mat.
Yoder notified the Union by letter dated October 24 of its
intention to implement a new wage schedule and invited the
Union to notify the Company in writing before November 1
if it desired to ‘‘discuss’’ the plan. Campbell responded on
October 29 asking Yoder to contact Corral to arrange a meet-
ing to discuss the proposed wage schedule. Shortly there-
after, Corral and Yoder agreed to meet on November 26 but
this meeting was later postponed until December 19 at
Yoder’s request.
On December 19, representatives of the parties met at the
office of Attorney Lieber. Lieber, Yoder, Mitchell-Guenett,
and Salazar were present for the Company; Agents Thomas
Lauer and Gonzales represented the Union.12
At the meeting, Yoder outlined the Company’s proposal13
and provided the Union with a list reflecting the functional
grouping of each employee by name, their date of hire, and
their current wage rate. In addition, he gave the Union a
copy of the evaluation form which Respondent planned to
use. The Union was advised that the Company wanted to im-
plement the new system early in January and asked for the
Union’s response to the presentation as soon as possible.
During the course of the Company’s presentation, Lieber told
the union representatives that because of the pending appeal
of the prior case, the Company’s presence at the meeting did
not ‘‘constitute recognition of the Union.’’
Lauer asserted that he told the company representatives
that the Union would be unable to respond before meeting
with the unit employees and claims that he requested the
Company to furnish employee addresses and telephone num-
bers to facilitate that meeting.
Respondent disputes that the Union requested the em-
ployee addresses and telephone numbers. Both Yoder and
Lieber denied that such a request was made at the meeting.
In support of their denials, Respondent introduced Lauer’s
notes of the meeting which reflect such a request and
Lieber’s notes which do not. Based primarily on the com-
parative appearance of the pen strokes between the address
and telephone reference in Lauer’s notes and the remainder
of his notes, Respondent contends that this written reference
was added later and is not contemporaneous.14
Later that afternoon following the meeting, Lieber tele-
phoned Lauer to apprise him that Fogelman had approved
the highest hourly rates and periodic increases in the pro-
posal, and asked when the Company could expect the
Union’s response. Purportedly, Lauer again asserted that the
Union could not reply until it met with the employees and
repeated his request for the addresses and telephone numbers.
Lieber denied that any such request was made during their
conversation and asserted that Lauer said only that he could
not ‘‘guarantee’’ when the Union would respond because of
the busy holiday season.
Having received no response from the Union by January
8, 1992, Yoder wrote to Lauer saying that the Company in-
tended to implement its wage proposal on January 17. Camp-
bell replied to Yoder in writing on January 10 saying that
the Union had no opportunity as yet to meet with the em-
453SHOW INDUSTRIES
15 NLRB v. Katz, 369 U.S. 736 (1961).
16 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678
fn. 15 (1981).
17 MCA Distributing, 288 NLRB 1173, 1174 (1988), quoting Ar-
mour & Co., 280 NLRB 824, 828 (1986).
18 233 NLRB 1172 (1977).
19 234 NLRB 58 (1978).
20 300 NLRB 789 (1990).
ployees because of the holidays and insisted that the Com-
pany not implement ‘‘pending the outcome of our negotia-
tions.’’ In addition, Campbell voiced the Union’s tentative
belief that the proposal was unfair and discriminatory toward
union supporters, and asked Yoder to telephone so that he
could explain the Union’s objections in detail ‘‘at a mutually
convenient time and date.’’
Lieber responded to Campbell on January 16 charging that
the Union had been given a fair opportunity to bargain over
the previous 4 weeks but had failed to communicate anything
of substance. Lieber insisted that Campbell provide his com-
ments in writing as soon as possible but asserted that he
could give no assurances, in view of what had transpired to
that time, that the Company would not implement ‘‘in the in-
terim.’’
On January 27, Union Attorney Phillips wrote to Lieber
claiming that the proposal was ‘‘far-reaching’’ and required
the Union’s fair consideration before it could respond. To
this end, Phillips asked that the Company furnish ‘‘a list of
all current . . . unit employees, together with their present
job classifications, wage rates, benefits and proposed
changes, if any.’’ After receiving that information, Phillips
asserted that the Union would be in a better position to re-
spond substantively and asked that the Company delay im-
plementation ‘‘until good faith bargaining can occur.’’
In a January 28 letter to Phillips, Lieber claimed that
‘‘[v]irtually all’’ of the information requested by Phillips had
been given to the Union on December 19. Lieber also argued
that the requested material on benefits ‘‘do not relate in any-
way to the subject matter at hand.’’ Accordingly, Lieber ad-
vised that as the Union had thus far failed to respond to the
proposal, the Company was ‘‘going forward with [its] imple-
mentation.’’ That ended the parties’ exchanges on this mat-
ter.
H. Further Findings and Conclusions
1. The 8(a)(5) allegations
Section 8(a)(5) obliges an employer to ‘‘bargain collec-
tively with the representatives of his employees.’’ Section
8(d) defines that obligation to include ‘‘the mutual obligation
of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of em-
ployment.’’
If its employees are represented by a labor organization,
generally an employer may not unilaterally change any em-
ployment term which falls within the statutory penumbra of
‘‘wages, hours and other terms and conditions of employ-
ment.’’15 Likewise, an employer has a duty to bargain with
the representative of its employees concerning the effects on
employees resulting from the cessation of all, or part, of its
operations.16
a. The City One Stop allegation
Here, the General Counsel claims that the Union was de-
prived of any meaningful opportunity to engage in effects
bargaining. The General Counsel argues that Corral’s undis-
puted prelayoff ‘‘do something’’ statement and the purported
postlayoff request by Corral satisfy the Union’s obligation to
request effects bargaining. The General Counsel asserts that
Respondent’s conduct, taken as a whole, demonstrates that it
was stonewalling the Union’s bargaining request until the
August 16 layoff became a fait accompli. By doing so, the
General Counsel believes that Respondent effectively dis-
sipated the Union’s bargaining strength and, accordingly, re-
quests a backpay remedy.
Respondent acknowledges a duty under First National
Maintenance to engage in effects bargaining, on request, re-
lated to the sale of City One Stop. However, Respondent
contends that, after it notified the Union of the sale, no re-
quest to bargain was forthcoming. Relying on Yoder’s asser-
tions, Respondent claims that the Union merely asked for a
seniority list which the Company eventually furnished on
September 17. Accordingly, Respondent believes that the
Union waived its right to bargain about this subject.
I reject Respondent’s claim that the Union waived its right
to bargain over the effects of the City One Stop sale. In so
doing, I find it unnecessary to resolve the conflict in testi-
mony concerning the claimed postlayoff bargaining request.
In my judgment Corral’s ‘‘do something’’ statement was suf-
ficient to put Respondent on notice that the Union desired to
engage in effects bargaining when Respondent determined
that the sale would adversely affect the unit employees.
After notifying the Union of the sale and inviting the
Union to discuss the ‘‘potential impact on warehouse em-
ployees,’’ Yoder pled ignorance of any potential effects
when Corral telephoned in response to his invitation. In the
context of Yoder’s ignorance plea and his promise to apprise
Corral of the potential effects when known, Corral’s ‘‘do
something’’ statement, in my judgment, ‘‘should have left
little doubt in the mind of a reasonable person that the Union
was interested not only in ascertaining the position of Re-
spondent, but also . . . bargaining with Respondent.’’17
The principal waiver cases cited by Respondent are factu-
ally inapposite to the situation found here. In all of cited
cases, the Union had notice of a particular change under con-
sideration by the employer well in advance of its implemen-
tation. Hence, the union’s mere protest without giving any
hint of a desire to bargain in Clarkwood,18 was deemed in-
sufficient as a demand for effects bargaining. In City Hos-
pital,19 the Board inferred a waiver from the union’s failure
to grieve two out of three changes made by the employer for
over 2 months as to the two ungrieved situations. Finally, in
Haddon,20 the Board inferred a waiver where the union had
notice of a proposed change for well over 5 weeks and actu-
ally met with the employer on a related issue but failed to
even protest the change until after it was implemented.
By contrast, Yoder’s initial notice merely advised the
Union about the consummated sale agreement and character-
ized City One Stop as a ‘‘small part of our total operations.’’
It gave no hint whatever concerning the impact the sale
might have on employees and, even by the time of Corral’s
initial call in response, Yoder failed to inform the union
agent of what, if anything, would likely occur. Until Re-
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Although Corral could not recall specifically whether he re-
ceived that letter on August 15 or 16, the evidence shows that the
layoff checks were cut on August 15 in preparation for the layoffs
the following day so, in either case, it is reasonable to assume the
Union’ views would have received little, if any, consideration.
22 286 NLRB 511 (1987).
23 207 NLRB 701 (1974).
spondent notified the Union that effects of some kind would
likely befall the employees, a specific request to meet could
hardly be expected or, for that matter, agreed to.
Where, as here, only a partial cessation of a larger, geo-
graphically unified operation occurs, the potential effects on
employees could range from practically nothing to matters of
critical significance. And in such cases, the potential subjects
for effects bargaining may well be far broader than in those
situations where the entire operation is about to close, leav-
ing all unit employees faced with termination. Thus, as Re-
spondent’s actions suggest, a partial closing can pose issues
about absorbing the affected work force into remaining oper-
ations, selecting workers for layoff from the entire unit rather
than the smaller affected portion, future uses of temporary
workers, the criteria for laying off employees, recall rights to
the remaining operation, and severance payments.
However, little, if anything, in Yoder’s initial notice or
conversation with Corral serves to even hint that the sale’s
potential impact would reach beyond the City One Stop em-
ployees. The first disclosure that the sale would affect other
unit employees did not come until Yoder sent his August 14
letter. By the time the Union received that letter, all details
down to the selection of specific employees for layoff were
complete and the process of execution was underway.21 As
the facts summarized above clearly suggest that Yoder, at the
very time he initially spoke to Corral or shortly thereafter,
was directing Respondent’s planned reduction in force, his
response to Corral’s inquiry about the potential effects must
be viewed as somewhat less than truthful.
I am satisfied that the circumstances found here amply
demonstrate that, despite giving general notice of the City
One Stop sale, Respondent effectively and deliberately pre-
sented the Union a fait accompli concerning the sale’s con-
sequences on its employees.
These conclusions, derived in the main from Respondent’s
own witnesses and its own correspondence, establish, I be-
lieve, that no good-faith effort was made to provide the
Union with a meaningful opportunity to address the effects
issues. By effectively freezing the Union out of the effects
decision-making process, Respondent put the Union in the
position of rubber-stamping its unilateral conduct, or de-
manding, with little likelihood of success, the restoration of
the status quo ante. Entirely aside from diminishing the
Union’s standing as the exclusive employee representative,
itself no small matter in an embryonic collective-bargaining
relationship, Respondent’s unilateral conduct substantially
weakened the Union’s bargaining position on the broad range
of potential alternatives to the layoff which occurred.
For the foregoing reasons, I have concluded that Respond-
ent violated Section 8(a)(5) of the Act by its failure to pro-
vide the Union with a reasonable opportunity to bargain over
the effects on employees resulting from the City One Stop
sale. The General Counsel’s request for a backpay remedy is
discussed below.
b. The wage schedule allegation
The General Counsel contends that Respondent’s imple-
mentation of the new wage schedule is unlawful notwith-
standing the December 19 meeting. Based on Lieber’s re-
marks at that meeting to the effect that, in agreeing to meet
with the Union, Respondent was not thereby recognizing the
Union as the employee representative, the General Counsel
argues that this case is analogous to the conditional offer to
meet and bargain found unlawful in Specialized Living Cen-
ter.22 For this reason, the General Counsel believes that the
Union had no obligation to respond at all to the Respond-
ent’s wage schedule notice.
In addition, the General Counsel argues that Respondent
had no right to implement its proposed wage schedule be-
cause it failed to provide the Union with the addresses and
telephone numbers requested to facilitate meeting with em-
ployees about that matter.
Respondent, which asserts that its duty to bargain with the
Union is as yet ‘‘undetermined’’ because of the pending test
of the certification, argues that it approached the wage sched-
ule matter in good faith by notifying the Union of the pro-
posed change, meeting with the Union to explain the pro-
posal in detail, and then waiting 6 weeks for a substantive
response before implementing the proposal. Respondent fur-
ther argues that it was privileged to implement its new wage
schedule in view of the Union’s dilatory bargaining tactics
concerning that proposal.
In view of Lieber’s explicit statement at the December 19
meeting that Respondent was not recognizing the Union, this
case, as the General Counsel contends, is indistinguishable
from Specialized Living Center. There the Board found that
a similar statement in a telegram offering to meet and confer
with the certified employee representative about work sched-
ule changes rendered the offer ‘‘conditional and did not con-
stitute a good-faith offer to bargain to which the Union was
entitled.’’ Accordingly, I find Respondent violated Section
8(a)(1) and (5) of the Act as alleged by implementing its
wage proposal in late January 1992.
Pointing to the make-changes-at-your-peril holding in Mike
O’Connor Chevrolet,23 Respondent complains that the only
way it can avoid the ‘‘peril’’ of making changes while ad-
vancing its position in the earlier case before the court of ap-
peals is to do precisely what it did. Hence, Respondent ar-
gues that the result here puts it in a Catch-22 situation.
In the final analysis, Respondent’s complaint is premised
on its view that its duty to bargain with the Union is still
‘‘undetermined.’’ Although that may be true in a certain
sense, that premise is without a legal basis. Section 10(g) of
the Act explicitly provides that neither a petition for enforce-
ment nor a petition for review of a Board order will ‘‘operate
as a stay’’ unless specifically ordered by the court. As no
such stay has been ordered with respect to the Board’s earlier
bargaining order—which Respondent essentially disavowed
at the December 19 meeting—Respondent’s complaint about
its predicament is best addressed to Congress rather than me.
455SHOW INDUSTRIES
24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).
25 277 NLRB 1179 (1985).
2. The 8(a)(3) and (4) allegations
Section 8(a)(3) prohibits employer ‘‘discrimination
[against employees] in regard to hire or tenure or any term
or condition of employment to encourage or discourage
membership in any labor organization.’’ Section 8(a)(4) pro-
hibits an employer from ‘‘discharg[ing] or otherwise
discriminat[ing] against an employee because he has filed
charges or given testimony under [the] Act.’’ In Wright
Line24 the Board adopted a causation test for cases alleging
violations of the Act which turn on employer motivation.
Subsequently, the Board summarized the salient aspects of
that causation test as follows in the Hunter Douglas case:25
The Board held in Wright Line, . . . that once the
General Counsel makes a prima facie showing that pro-
tected conduct was a motivating factor in an employer’s
action against an employee, the burden shifts to the em-
ployer to demonstrate that it would have taken the same
action even in the absence of the protected conduct.
The employer cannot carry this burden merely by
showing that it also had a legitimate reason for the ac-
tion, but must ‘‘persuade’’ that the action would have
taken place absent the protected conduct ‘‘by a prepon-
derance of the evidence.’’ Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). If an employer
fails to satisfy its burden of persuasion, a violation of
the Act may be found. Bronco Wine Co., 256 NLRB
53 (1981).
The General Counsel believes that Falcon, Jerez, and
Marroquin were specifically targeted for layoff in connection
with the City One Stop reduction in force, even though their
work was virtually unaffected by the sale, because of their
support for the Union. Pointing to evidence that Respondent
knew of their union activities and Respondent’s union ani-
mus, the General Counsel asserts that the burden of present-
ing a prima facie case was met.
The Respondent’s defense, according to the General Coun-
sel, that Falcon, Jerez, and Marroquin were terminated as a
part of an economic reduction in force resulting from the sale
of City One Stop is, at best, an example of a mixed motive
where the scale tips toward the conclusion that these three
employees would not have been discharged but for their
union activity. Additionally, the General Counsel argues that
Respondent’s claim that these three high wage employees
were selected for the August 16 layoff because of a need to
reduce payroll costs is, in view of other actions taken by Re-
spondent, a pretext. As the Respondent’s explanation for lay-
ing off these three union activists fails close scrutiny, the
General Counsel contends that the record amply supports a
finding that their selection was based on their union support
and activity, including their testimony at the representation
case hearing on behalf of the Union.
Respondent contends that the General Counsel failed to es-
tablish a prima facie case because no evidence was proffered
to prove that Salazar—the company official who actually se-
lected the particular employees for the August 16 layoff—
had more that a ‘‘hunch’’ about the union sentiments of the
employees who were laid off. According to Respondent, no
evidence of ‘‘direct knowledge’’ of the activities of Falcon,
Jerez, and Salazar exists.
Even assuming that the General Counsel established a
prima facie case, Respondent argues that these three employ-
ees were selected for layoff on an ‘‘objective basis without
regard for their support for or activity on behalf of the
Union,’’ i.e., primarily their high wage rates, Respondent’s
economic need to reduce its payroll costs, and other effi-
ciency considerations.
The General Counsel’s evidence establishes that each of
these three employees were high profile union supporters. In
fact, the evidence shows that Falcon and Marroquin were the
employees who initially approached the Union.
Contrary to Respondent’s claim, this record does contain
uncontradicted direct evidence that Salazar himself witnessed
the demonstrations at the Music Plus stores and, therefore,
was in a position to have direct knowledge of what surely,
from Respondent’s point of view, were some of the more in-
flammatory activities engaged in by Falcon, Marroquin, and
other union activists. Indeed, the activities of Marroquin
were shown to be so conspicuous for such a lengthy period
of time that even a claim by Respondent that it lacked
knowledge of his involvement with the Union simply casts
a pall over the veracity of Respondent’s entire case. More-
over, Salazar admitted that he spoke to Jerez about the
Union, the only time he supposedly broke the vow of silence
on that subject imposed by the Company’s consultant.
For evidence of union animus, the General Counsel points
to Respondent’s ‘‘continuing’’ refusal to bargain with the
Union in general as well as Salazar’s specific threat to termi-
nate Marroquin, his suggestion to Falcon that his union activ-
ity was not regarded favorably, and his refusal to disclose the
nature of his remarks to Jerez about the Union.
Even though General Counsel may be technically correct
by suggesting that I accord weight to the prior summary
judgment case as evidence of Respondent’s union animus, I
have chosen not to do so. Logicians could easily quarrel that
the prior case says nothing about a malevolent motive where
the law provides no other means to challenge a certification
and where, as here, a key component of the certification test
obviously relates the timeliness of Respondent’s exceptions
in the representation case.
However, the concurrent unlawful conduct of Respondent
with respect to the effects bargaining is another matter. At
the risk of stating the obvious to some, the relative signifi-
cance of effects bargaining to employees cannot be
trivialized or treated cavalierly in terms of the destructive-
ness to employee rights protected by this Act.
Far more frequently than not, collective-bargaining agree-
ments contain specific procedures, enforceable through a
grievance-arbitration mechanism, relating to reductions in
force. Such provisions, together with a just cause standard
for disciplinary actions, form the bulwark of job security pro-
visions in a typical collective-bargaining agreement.
Where an agreement is not in place, effects bargaining
serves a similar purpose. Because I have concluded that Re-
spondent merely went through the motions of notifying the
Union of the City One Stop sale and misled the Union as
to the potential effects that sale would have on employees
until it was too late for any effective bargaining, such con-
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duct cannot be dismissed as unrelated to the issues here. On
the contrary, Respondent’s unlawful effects bargaining con-
duct strongly supports the claim of an unlawful motive here.
Salazar’s direct threat to terminate Marroquin is more
problematical. Respondent strongly argues that this testimony
should not be credited in view of the General Counsel’s fail-
ure to call any corroborating witnesses or explain their ab-
sence, and Salazar’s denial.
Ordinarily, I would agree, without hesitation, with Re-
spondent’s argument if I were in a position to lend credence
to Salazar’s testimony concerning statements he made, or did
not make, to employees about the Union. However, Salazar’s
befuddled and incoherent evasiveness concerning remarks he
initially admitted making to Jerez about the Union raises far
more serious problems concerning witness credibility than
does the General Counsel’s failure to seek corroboration for
Marroquin’s claim that Salazar threatened him. Unlike the
situation with Salazar, Marroquin’s credibility revolves
around an ambiguity about whether fault lies with the Gen-
eral Counsel or with Marroquin himself. Where, as here, I
am clearly unable to credit Salazar about whether he spoke
to employees concerning the Union, and, if so, what was the
tenor of his remarks, I credit both Marroquin and Falcon as
no credible denial exists concerning their testimony about
Salazar’s remarks to them relative to the Union.
By showing that Salazar specifically threatened to termi-
nate Marroquin for his protected activity, the General Coun-
sel provided essential evidence of union animus on the part
of the very official appointed to select employees for layoff
on August 16. The fact that Marroquin placed this threat in
the past 6 months and Falcon testified that the Salazar’s dis-
paraging remark to him occurred at the time of his last pay
increase in late March or early April indicates that Salazar
continued to harbor animus toward their protected activities
long after they were likely known. Even Salazar himself tes-
tified that his remarks to Jerez about the Union occurred in
1991.
Based on the foregoing, I am satisfied that the General
Counsel established a prima facie case that Falcon, Jerez, and
Marroquin were selected for termination because of their pro-
tected activities of sufficient weight to shift the burden of
persuasion to Respondent under the Wright Line test.
Respondent’s claim that these three individuals were se-
lected for termination primarily because of their high wages
and its need to reduce payroll costs in face of the economic
adversity in 1990 and 1991 is unconvincing. Even though I
am precluded from second guessing management decisions
because of their severity alone, inconsistent management
conduct can be a strong indicator of a discriminatory motive.
Although Respondent points to the reduction of its payroll
costs as a paramount consideration in laying off Falcon,
Jerez, and Marroquin, the record is void of evidence that it
ever took any similar harsh steps to effect payroll savings.
The layoff resulting from the City One Stop sale was the
first time Respondent ever laid off employees for economic
reasons. The pay increase given Falcon in late March or
early April—more than a year after the down turn in busi-
ness is said to have begun—was near the maximum increase
permitted at the time. And Respondent’s new wage schedule,
devised only shortly after the August layoffs purportedly as
a device to cap wages and periodic increases, is devoid of
the kind of draconian action reflected in the layoff of Falcon,
Jerez, and Marroquin. Even a cursory review of Respond-
ent’s new wage schedule shows that few employees threaten
the wage cap in any category, the periodic increases estab-
lished for some of the categories are more generous than
they were before and, apparently some raises under the new
plan were given a retroactive effect.
Moreover, the fact that Respondent hired three new em-
ployees shortly after the August 16 layoff strongly indicates
that the layoff was not consistent with its manpower needs.
At the very least, by laying off three more employees than
were actually employed in the City One Stop operation at the
time and hiring three new employees only shortly thereafter,
Respondent neutralized any claim that the larger layoff was
necessitated by the amount of City One Stop work performed
in the regular warehouse. Viewed together with other evi-
dence in this case, the hiring of these three new workers in
early September also suggests that some motive undisclosed
by Respondent other than the sale of the City One Stop oper-
ation was at work in formulating the August 16 layoff.
Finally, Respondent’s claim that the work records of Fal-
con, Jerez, and Marroquin contributed to their selection for
layoff is belied by the fact that their overall work records
were, on paper, cleaner than at least two of the employees
who were retained. The claim that Jerez was selected for lay-
off based on some objective review of the daily production
records was clearly only a secondary consideration and no at-
tempt was made to substantiate Salazar’s bare claim on this
point. It is reasonable to presume that Jerez did not become
the highest paid employee in the warehouse under Respond-
ent’s merit pay system by lackluster work performance.
Based on the foregoing discussion, I find that Respondent
seized on the layoff necessitated by the City One Stop sale
to rid itself of three very active union supporters. In agree-
ment with the General Counsel, I find that a preponderance
of the evidence supports the conclusion that Falcon, Jerez,
and Marroquin were selected for layoff on August 16 be-
cause of their union activities, including their testimony on
the Union’s behalf at the representation case hearing. Ac-
cordingly, I conclude that their terminations violated Section
8(a)(1), (3), and (4), as alleged.
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with Respondent’s business operations, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow of commerce.
CONCLUSIONS OF LAW
1. 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 Union is the exclusive representative within the
meaning of Section 9(a) of the Act of the following appro-
priate bargaining unit of employees:
All packers, shipping and receiving clerks, order pick-
ers, stockers, fixture handlers, warehouse employees,
poster shippers, truck drivers, janitors, and inventory
457SHOW INDUSTRIES
26 160 NLRB 990 (1966).
27 170 NLRB 389 (1968).
28 90 NLRB 289 (1950).
29 283 NLRB 1173 (1987).
30 240 NLRB 1213 (1979).
31 261 NLRB 472 (1982).
32 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
Continued
employees employed by Respondent at its facility lo-
cated at 2551 South Alameda Street, Los Angeles, Cali-
fornia; excluding all other employees, office clerical
employees, professional employees, guards and super-
visors as defined in the Act.
4. By failing to provide the Union with the opportunity to
bargain concerning the effects on employees resulting from
the sale of its City One Stop operation in August 1991 and
by refusing to bargain in good faith before implementing a
new wage schedule plan in January 1992, Respondent en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (5), and Section 8(d) of the Act.
5. By terminating Miguel Falcon, German Jerez, and Jose
Marroquin on August 16, 1991, Respondent engaged in un-
fair labor practices within the meaning of Section 8(a)(1),
(3), and (4) of the Act.
6. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
On request of the Union, Respondent must bargain in good
faith concerning its wage schedule system. If requested by
the Union in furtherance of this bargaining requirement, Re-
spondent must withdraw the wage schedule implemented in
late January 1992 or any successor thereto.
In Royal Plating,26 also a partial closing case, the Board
concluded that ‘‘a bargaining order, alone, cannot serve as an
adequate remedy’’ because of the likelihood that only ‘‘pro
forma bargaining is all that is likely to result unless the
Union can . . . bargain under conditions essentially similar
to those that would have obtained, had Respondent bargained
at the time the Act required.’’ Accordingly, the Board fash-
ioned a remedy designed to restore ‘‘some measure of eco-
nomic strength to the Union, since Respondent should have
bargained when it was still in need of its employees services.
Consequently, the Board fashioned a backpay remedy limited
by four special conditions and the time period that employer
continued to operate the remainder of its business.
Subsequently, in Transmarine Navigation,27 the Board im-
posed the same remedy in a case involving the failure to en-
gage in timely effects bargaining. There, however, the Board
was faced with a situation where the employer closed its en-
tire operation so that the added remedial feature concerning
the operation of of a related portion of the enterprise was not
relevant.
Read together, these cases and their progeny form the
basis for the type of remedial action the Board generally im-
poses in cases where effects bargaining has been delayed be-
yond a time when the employee representative still retains a
measure of economic strength. I find that to be the case here.
By failing to provide the Union with an opportunity to bar-
gain at a time when a panoply of alternatives to abruptly lay-
ing off a selection of unilaterally handpicked employees
could have been considered, the Respondent deprived its em-
ployees of one of the most significant benefits of the collec-
tive-bargaining system protected by this Act. Hence, in view
of the extremely serious impact Respondent’s conduct had on
those employees affected by the City One Stop sale and the
improbability that a bargaining order alone will serve to ef-
fectively remedy this violation, I find that the requested
Transmarine remedy is appropriate.
Accordingly, Respondent will be required to bargain with
the Union concerning the effects on its employees resulting
from the sale of its City One Stop operation. In addition, Re-
spondent will be required to pay those employees laid off on
August 16, except Falcon, Jerez, and Marroquin, backpay at
the rate of their normal wages when last in Respondent’s em-
ploy, from August 16 until the occurrence of the earlier of
the following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects pertain-
ing to the effects of the sale of City One Stop on its employ-
ees; (2) a bona fide impasse in bargaining; (3) the failure of
the Union to request bargaining within 5 days of this deci-
sion, or to commence negotiations within 5 days of the Re-
spondent’s notice of its desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain in good
faith; but in no event shall the sum paid to any of these em-
ployees exceed the amount he or she would have earned as
wages from August 16, 1991, to the time he or she secured
equivalent employment elsewhere, or the date on which Re-
spondent shall have offered to bargain, whichever occurs
sooner; provided, however, that in no event shall this sum be
less that these employees would have earned for a 2-week
period at the rate of their normal wages when last in Re-
spondent’s employ. Backpay and interest on these amounts
shall be computed in the same manner as specified below
with respect to Falcon, Jerez, and Marroquin.
Respondent must immediately offer in writing to reinstate
Falcon, Jerez, and Marroquin their former positions or, if
those positions no longer exist, to substantially equivalent
positions without prejudice to their seniority or other bene-
fits. Respondent must also make those three employees
whole for all losses of pay and benefits suffered by reason
of their unlawful terminations. Backpay is to be computed
using the F. W. Woolworth Co.28 calendar quarterly formula,
adding interest as required in New Horizons for the Re-
tarded.29 Trust fund or profit sharing reimbursements shall
accord with Merryweather Optical Co.30
In accord with Sterling Sugars,31 Respondent must further
expunge from its records any reference to the August 16 ter-
minations of Falcon, Jerez, and Marroquin. Each of these
employees must be notified in writing that such action has
been taken and that any evidence related to that discharge
will not be considered in any future personnel action affect-
ing him.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended32
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
33 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Show Industries, Inc., Los Angeles, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain with General Warehouse-
men, Local 598, International Brotherhood of Teamsters,
AFL–CIO concerning effects on employees represented by
that labor organization resulting from the sale of the City
One Stop operation in August 1991 and concerning the wage
schedule implemented in January 1992.
(b) Terminating employees in order to discourage member-
ship in General Warehousemen, Local 598, International
Brotherhood of Teamsters, AFL–CIO or any other labor or-
ganization, or because they have given testimony under the
Act.
(c) In any like or related manner interfering with, restrain-
ing, coercing, or discriminating against employees because
they exercise rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain in good faith with General Warehousemen,
Local 598, International Brotherhood of Teamsters, AFL–
CIO concerning the effects on employees represented by that
labor organization resulting from the sale of the City One
Stop operation in August 1991.
(b) On request, bargain in good faith with General Ware-
housemen, Local 598, International Brotherhood of Team-
sters, AFL–CIO concerning its wage schedule implemented
in January 1992, including, if requested by that labor organi-
zation, restoring the compensation plan in effect prior to Jan-
uary 1992.
(c) Make all employees who were terminated on August
16, 1991, as a result of the sale of the City One Stop oper-
ation, other than Miguel Falcon, German Jerez, and Jose
Marroquin, whole in the manner set forth in the remedy sec-
tion of the decision.
(d) Immediately offer to reinstate Miguel Falcon, German
Jerez, and Jose Marroquin and make each whole for all
losses incurred as a result of their August 16, 1991 termi-
nations as specified in the remedy section of the decision.
(e) Expunge from its records any reference to the August
1991 terminations of those employees named in paragraph
2(d), above, and notify each of those individuals in writing
that such action has been taken and that his August 1991 ter-
mination will not be used in any future personnel action in-
volving him.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine the
propriety of any offers of reinstatement, backpay, and trust
fund or profitsharing reimbursements required by the terms
of this Order.
(g) Post at its Alameda Street facilities in Los Angeles,
California, copies of the attached notice marked ‘‘Appen-
dix.’’33 Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.