Sheffield Barbers LLC

National Labor Relations Board - Board Decisions

May 19, 2020

369 N.L.R.B. 81 (N.L.R.B. 2020)

369 NLRB No. 81
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Sheffield Barbers, LLC and Nellis Barbers Association
and UnChong Thrower. Cases 28‒CA‒199308,
28‒CA‒210447, and 28‒CA‒209734.
May 19, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On August 27, 2018, Administrative Law Judge Gerald
Michael Etchingham issued the attached decision. The
Respondent filed exceptions with supporting argument,
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 rulings, find-
ings,1 and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.2
ORDER
The National Labor Relations Board orders that the Re-
spondent, Sheffield Barbers, LLC, Nellis Air Force Base,
Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Nellis Barbers Association (NBA) as the exclusive
collective-bargaining representative of employees in the
bargaining unit.
(b) Changing the terms and conditions of employment
of its unit employees without first notifying the Union and
giving it an opportunity to bargain.
(c) Engaging in surveillance of its employees’ union
activities.
(d) Telling employees that the Union’s collective-bar-
gaining agreement with the predecessor employer was a
fraud and telling anyone who disagrees to “shut up.”
(e) Telling employees that its contract with the Depart-
ment of Labor supersedes their rights under the National
Labor Relations Act.
1 The Respondent’s exceptions relate to the judge’s finding that it
violated Sec. 8(a)(1) of the Act by discharging employee UnChong
Thrower. No exceptions were filed to any other aspect of the judge’s
decision, including the several other violations found.
As for the discharge of Thrower, there are no exceptions to the judge’s
finding that Thrower engaged in protected concerted activity. The Re-
spondent also does not dispute that it knew about her actions. Rather, it
challenges the judge’s credibility-based findings that the discharge was
motivated by Thrower's protected concerted activity. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
(f) Discharging or otherwise discriminating against its
employees because they openly discuss its new work rules
related to compensation after work hours or any other
terms and conditions of employment.
(g) Promulgating and maintaining work rules in retali-
ation for employees’ protected concerted activities.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the NBA
as the exclusive collective-bargaining representative of its
employees at Nellis Air Force Base in the following ap-
propriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
All barbers except the base manager, supervisors, and
other employees excluded under the terms of the Na-
tional Labor Relations Act.
(b) On request by the Union, rescind the changes in the
terms and conditions of employment for its unit employ-
ees implemented on or after April 28, 2017, including (a)
the reduction of commission rates paid to the unit employ-
ees, (b) changing the marvicide and paper-towel policies,
and (c) implementing a new coupon rule.
(c) Make unit employees whole for any loss of earnings
and other benefits suffered as a result of unlawful changes
in the manner set forth in the remedy section of the judge’s
decision.
(d) Compensate unit employees for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(e) Within 14 days from the date of this Order, offer
UnChong Thrower full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(f) Make UnChong Thrower whole for any loss of earn-
ings and other benefits suffered as a result of the
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. 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 judge's findings.
2 We shall modify the judge’s recommended Order and substitute a
new notice to correct omissions and to conform to the Board’s standard
remedial language, and in accordance with our recent decision in Dan-
bury Ambulance Service, Inc., 369 NLRB No. 68 (2020).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
discrimination against her, as set forth in the remedy sec-
tion of the judge’s decision.
(g) Compensate UnChong Thrower for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge, and
within 3 days thereafter, notify UnChong Thrower in writ-
ing that this has been done and that the loss of employment
will not be used against her in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(j) Rescind the work rules promulgated on November
14, 2017, in retaliation for protected concerted activities.
(k) Post at its Nellis Air Force Base, Nevada facility
copies of the attached notice marked “Appendix.”3 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 28, after being signed by the Respond-
ent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 28, 2017.
3 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notices must be posted within 14 days after the facility
reopens and a substantial complement of employees have returned to
work, and the notices may not be posted until a substantial complement
of employees have returned to work. Any delay in the physical posting
(l) Within 21 days after service by the Region, file with
the Regional Director for Region 28 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. May 19, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with the Nellis Barbers Association (NBA) as the exclu-
sive collective-bargaining representative of our employ-
ees in the bargaining unit.
of paper notices also applies to the electronic distribution of the notice if
the Respondent customarily communicates with its employees by elec-
tronic means. 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SHEFFIELD BARBERS, LLC 3
WE WILL NOT change unit employees’ terms and condi-
tions of employment without first notifying the NBA and
giving it an opportunity to bargain.
WE WILL NOT engage in surveillance of your union ac-
tivities.
WE WILL NOT tell you that the NBA’s collective-bar-
gaining agreement with Gino Morena Enterprises was a
fraud, and WE WILL NOT tell anyone who disagrees to “shut
up.”
WE WILL NOT tell you that our contract with the Depart-
ment of Labor supersedes your rights under the National
Labor Relations Act.
WE WILL NOT discharge or otherwise discriminate
against you because you openly discuss our new work
rules related to compensation after work hours or any
other terms and conditions of employment.
WE WILL NOT promulgate and maintain work rules in
retaliation for your or other employees’ protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and, on request, bargain with the
NBA as the exclusive collective-bargaining representative
of our employees at Nellis Air Force Base in the following
appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
All barbers except the base manager, supervisors, and
other employees excluded under the terms of the Na-
tional Labor Relations Act.
WE WILL, on request by the NBA, rescind the changes
in unit employees’ terms and conditions of employment
implemented on or after April 28, 2017, including (a) the
reduction of commission rates paid to the unit employees,
(b) changing the marvicide and paper-towel policies, and
(c) implementing a new coupon rule.
WE WILL make you whole for any loss of earnings and
other benefits you suffered as a result of unlawful changes,
plus interest.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region
28, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocat-
ing the backpay award to the appropriate calendar years
for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, offer UnChong Thrower full reinstatement to her
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make UnChong Thrower whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against her, less any interim earnings, plus
interest, and WE WILL also make Thrower whole for rea-
sonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL compensate UnChong Thrower for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor for Region 28, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to UnChong
Thrower’s unlawful discharge, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the loss of employment will not be used
against her in any way.
WE WILL rescind the work rules promulgated on No-
vember 14, 2017 in retaliation for protected concerted ac-
tivities.
SHEFFIELD BARBERS, LLC
The Board’s decision can be found at
http://www.nlrb.gov/case/28-CA-199308 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273‒1940.
Stephen Kopstein, Esq., for the General Counsel.
Kevin Dolley and David Nowakowski, Esqs. (Law Offices of
Kevin Dolley, LLC), for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, ADMINISTRATIVE LAW JUDGE. This
case was tried on January 30–31, 2018, in Las Vegas, Nevada.
The complaint alleges that Sheffield Barbers LLC (Sheffield or
Respondent) engaged in numerous violations of the National
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Labor Relations Act1 (the Act) after taking over the barber shop
at Nellis Air Force Base from the previous employer, Gino Mo-
rena Enterprises (GME), during the spring of 2017.2 3 Specifi-
cally, Sheffield is alleged to have violated Section 8(a)(1) of the
Act by: directing employees to surveil the protected concerted
activity of other employees; dismissing the collective-bargaining
agreement asserted by the Nellis Barbers Association (NBA) as
a false document; disrespecting the NBA’s collective-bargaining
representative during a meeting between employees and man-
agement; and disciplining and terminating employee UnChong
Thrower (Thrower or Charging Party) for engaging in protected
concerted activities. Sheffield also allegedly violated Section
8(a)(1) and 8(a)(5) by changing the employees’ commission rate,
instituting new workplace rules regarding insubordination and
bullying, and requiring employees to supply their own tools,
keep credit card receipts in the open, and pay for the cost of any
improperly processed coupons without bargaining with the
NBA.4 Sheffield denies the allegations, and contends that it was
under no obligation to adhere to the allegedly preexisting CBA,
Sheffield management made GME’s employees aware of the
changes to their terms and conditions of employment prior to of-
fering them jobs, good-faith bargaining between Sheffield and
the NBA occurred, and that the barbers’ commission never
changed from 45.2 percent. As for Thrower, Sheffield asserts
that she was lawfully terminated for cause, the circumstances of
which required immediate termination, and that the NBA was
properly consulted during the termination process.
On the entire record, 5 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Sheffield has been a Missouri limited
liability company engaged in the retail sale of haircuts. Sheffield
operates various facilities throughout the United States in per-
forming that function, including a facility located at the Nellis
Air Force Base Exchange (Nellis AFB), the only facility in-
volved in this proceeding. In conducting its operations during
the 12-month period ending May 22, 2017, Respondent per-
formed services valued in excess of $50,000 in States other than
the State of Nevada, and derived gross revenues in excess of
$500,000. At all material times, Sheffield has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.6 I further find that at all material times, the
1 29 U.S.C. §§ 151–169.
2 Any reference to “Barbershop” is a reference to the barbershop lo-
cated at the Nellis Air Force Base Exchange.
3 All dates are 2017 unless otherwise indicated.
4 The General Counsel withdrew the allegations in Paragraphs 6, 9,
and 10 of the Complaint during the hearing of this case. (Tr. 522, GC
Exh. 1(z).) Abbreviations used in this decision are as follows: “Tr.” for
transcript; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General
Counsel’s exhibit; Jt. Exh. For joint exhibit; “GC Br.” for the General
Counsel’s closing brief and “R. Br.” for the Respondent’s closing brief;
and R. Reply for Respondent’s reply brief to the GC Br. Although I have
included numerous citations to the record to highlight particular testi-
mony or exhibits, my findings and conclusions are based not solely on
NBA has been a labor organization within the meaning of Sec-
tion 2(5) of the Act. Based on the foregoing, I also find that this
dispute affects commerce and that the Board has jurisdiction of
this case, pursuant to Section 10(a) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
Sheffield has been individually owned by Christina Deardeuff
(“Deardeuff”) and her sister Claudette Michels (Michels) since
July 1, 2014. Sheffield currently owns and operates barbershops
at seven military bases where it employs 134 total employees,
including the Barbershop at Nellis AFB. In addition to the Nellis
Barbershop, two other barbershops run by Sheffield have union
employees.7 Deardeuff opined that having a union in place at a
barbershop is easier for Sheffield because the union deals mostly
with the barbershop employees.8 Deardeuff also explained that it
is Sheffield’s normal custom and practice that she allows the un-
ion to come forward and present their current collective-bargain-
ing agreement and then Sheffield and the union go into negotia-
tions and “hack out our own agreement for a contract that we’re
on at that point.”9 As discussed below, Sheffield did not follow
this same custom and practice and chose to ignore the NBA when
it came forward with their ongoing CBA with GME in or before
April 2017.
Contract Manager Yvonna Bays (Bays) assisted Deardeuff
and Michels with hiring employees and other contract matters at
the Barbershop before its opening at Nellis on May 1, 2017, prior
to ending her employment with Sheffield. Eileen Dinger10 also
assisted Deardeuff and Michels with the installation of new
equipment and helped find managers after Sheffield assumed
ownership of the Barbershop. Trixie Monroe (Manager Monroe)
is employed as a barber and a manager at the Barbershop begin-
ning on November 9, 2017. Arlene Fiori (Fiori) also works as a
lead barber and was briefly an assistant manager in August 2017.
Fiori, as a lead barber for Sheffield, receives 2 percent more in
commission pay than nonlead barbers and has added responsi-
bilities to handle the cash drawers at Sheffield and make bank
drops.11
The discriminatee, Thrower, was employed at the Barbershop
for approximately 4 years as a barber. Thrower was originally
hired by GME, and then worked for Sheffield from May 1 until
her termination on November 11. Prior to November 11,
Thrower was never disciplined. Barbara Dyson (Dyson), My-
oung Suk Kim (Kim), Ruben Romero, Holly Arnold, Felicia
Browning, and Maria Carpenter were some of the other barbers
the evidence specifically cited, but rather on my review and considera-
tion of the entire record.
5 The transcript in this case (Tr.) is mostly accurate, but I correct it as
follows: Tr. 138, line 9: “None of the CBAs were reached at ours like
negotiations”; should be: “None of the CBAs were reached at arms-
length negotiations.”
6 GC Exh. 1(cc) at 4.
7 Tr. 109–110.
8 Tr. 111.
9 Id.
10 Eileen Dinger is also known as Eileen Rhoads.
11 Tr. 263, 548.
SHEFFIELD BARBERS, LLC 5
during the relevant time period and remain employed by Shef-
field. Approximately five other barbers worked at the Barber-
shop in 2017. All of the former GME employees remained at the
Barbershop after Sheffield succeeded GME with no new barbers.
B. The Nellis Barbers Association’s Representation of the Bar-
bers at Nellis AFB
The NBA was founded in 2014 for the purpose of engaging in
collective bargaining with GME for wages and other terms and
conditions of employment for NBA Barbers.12 Dyson was se-
lected as the NBA’s president, and was the sole representative of
the NBA during negotiations between Dyson for the NBA and
Rex Morena for GME at the Grand Hotel in Las Vegas, Ne-
vada.13 Dyson was also an NBA barber and not a member of
GME management in 2014.14
Over the course of approximately six additional phone calls
and an in-person meeting with GME, Dyson bargained for the
NBA with GME over the barbers’ commission, vacation, the
provision of necessary supplies, and other rules and regula-
tions.15 After bargaining sessions, Dyson would inform and re-
ceive input from the barbers at Nellis AFB about the proposed
terms of the collective-bargaining agreement.16 Later on, Car-
penter was involved with Dyson in actually negotiating the CBA
with GME management.17 The barbers told Dyson which provi-
sions they agreed to, and which ones they did not and Dyson
would negotiate to get what the barbers demanded with back and
forth with GME management.18 At least one GME supervisor,
Holly Arnold, was present when Dyson discussed collective bar-
gaining matters with the barbers. Supervisors were not permitted
to bargain directly with GME, but did review the bargaining doc-
uments provided by Dyson and discussed their contents with the
other barbers.19 Eventually, the bargaining efforts resulted in a
collective-bargaining agreement (CBA) that was prepared by
GME’s lawyer and signed by all the barbers at Nellis AFB and
by GME on August 15, 2014.20
The CBA provided an effective term of June 1, 2014, through
May 31, 2017. The various articles of the CBA included a 45.2
percent commission rate, a provision that barbers would be re-
sponsible for furnishing and maintaining their own tools and
12 Tr. 323–324.
13 Tr. 274, 324–325, 370.
14 Tr. 325.
15 Tr. 325–327; GC Exh. 16.
16 Id.
17 273–274.
18 274, 306–307.
19 Tr. 516–517. Arnold credibly testified about her role in the for-
mation of NBA and the CBA, and her testimony was corroborated by
Carpenter. (Tr. 307–308.) The only other GME manager alleged to have
participated in the bargaining process was a “Kathy” whose role, like
Arnold’s, was limited to discussing the potential CBA terms with the
other barbers.
20 Tr. 270–272; GC Exh. 16, GC Exh. 22.
21 The CBA contains an unenforceable poison pill provision that in-
creases the NBA employees’ commission rate to 55 percent upon the
commencement of a new AAFES concessionaire contract, like Shef-
field’s, and a miscellaneous severability clause that provides that the
CBA continues even if the poison pill provision violates state or federal
law. GC Exh.16 at 3 and 15. Dyson recalled being asked for a copy of
the CBA by Sheffield in late 2017 and not providing the document to
uniforms, and a scheme for disciplining employees.21 The CBA
was kept in the manager’s office at the rear of the Barbershop
and one employee, Felicia Browning (Browning) confidently
opined that the CBA is open for anyone to see in the filing cabi-
net in the manager’s office/employee break room. At all times,
Carpenter kept a copy of the CBA to herself and confirms that
the CBA was hung up in the back manager office at the Barber-
shop and stayed there from 2014 until the last day of April
2017.22
C. The Solicitation
In December 2016, Deardeuff received a solicitation from the
Army and Air Force Exchange Service (AAFES) to bid on the
contract for the Barbershop.23 The AAFES contract is governed
by the Service Contracts Act which requires contractors on fed-
eral works projects to pay their workers the wages prevailing in
the area where a project is located, also known as “prevailing
wages,” in an effort to stem the practice of employers bringing
in lower-wage workers from outside the area. Prevailing wages,
like state and federal minimum wages, set a minimum wage rate
that employers must pay to workers.
By January 2017, GME was temporarily suspended and de-
barred from bidding on new U.S. government barber contracts
including one at Nellis Air Force Base.24 This temporary suspen-
sion opened things up for Sheffield to come in, win the bid, and
take over the barber business at Nellis starting on May 1, 2017.25
Deardeuff purports that there was no CBA in effect at the Bar-
bershop in December 2016 or January 2017 when she and Mi-
chels made their site visit to the Nellis Barbershop.26
Following the receipt of the AAFES solicitation, Deardeuff
and Michels did a site visit and inspected the facilities at Nellis
on January 12, 2017. Sheffield’s two owners ignored the CBA
that was kept in the manager’s office at the rear of the Barber-
shop believing it to be invalid and deciding not to discuss it with
the GME employees including the NBA representative Dyson,
until after the NBA barbers accepted employment with Sheffield
and the successor Barbershop was conducting business in the
summer of 2017. Once the visit was over, Deardeuff and Mi-
chels gave their telephone numbers to Arnold with their hope of
Sheffield because “it didn’t apply to what was going on with the NBA’s
various unfair labor charges in 2017 as she believed that Sheffield’s re-
quest was specifically focused on the poison pill language at Art. IV of
the CBA and Dyson had been instructed by the General Counsel that the
poison pill provision was invalid, unenforceable, and unrelated to the
matters at issue in this case. Tr. 374–376; GC Exh. 16 at 3 and 15.
22 Tr. 272–273.
23 Sheffield did not properly authenticate any documents from
AAFES, the Department of Labor, or the System Award Management
(SAM) website on January 24, 2018. Tr. 114–122.
24 Tr. 123–126.
25 The GME temporary suspension, which preceded the end of its
business at Nellis on or about April 30, 2017, is a short suspension which
will expire and allow GME to receive further AAFES solicitations and
bid on future barber contracts on military bases. Tr. 126. GME’s tem-
porary suspension from AAFES solicitations specifically resulted from
an unrelated collective-bargaining agreement at Shaw Air Force Base
and not its CBA with NBA at Nellis Air Force Base. Tr. 122–123, 129.
26 Tr. 115–116, 132. There was no admissible evidence presented to
confirm that the CBA was not attached to the wage determination in the
solicitation for the Nellis barber contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
receiving follow-up correspondence from GME employees.27
Arnold called Deardeuff that evening and informed her that
the commission rate at the barbershop was 45.2 percent.28 In re-
sponse, Deardeuff did not tell Arnold that Sheffield intended to
reduce the barbershop commission rate to 33 percent.
D. The Transition from GME to Sheffield
On February 21, AAFES awarded Sheffield the barber ser-
vices contract at Nellis AFB.
On March 3, Sheffield’s owners, Deardeuff and Michels,
mailed a letter solicitation to all of the GME employees with a
blank personnel data form and a Sheffield employment applica-
tion enclosed for Sheffield to obtain all of the necessary employ-
ment information to offer employment to all GME employees for
continuous operations at the Nellis barbershop.29
The March 3 letter provides in pertinent part:
On 21 February 2017, Sheffield Barbers, LLC was the success-
ful bidder and awarded the contract to operate the barbershops,
located at Nellis AFB, Nevada. Our contract will open for op-
eration on May 1, 2017. This information can be verified
through the AAFES Maecelle Cummings.
While many of the contract details are confidential, but [sic.]
Sheffield Barbers, LLC wants to reach out to current barbers
and let them know that Sheffield has job opportunities availa-
ble with our company and we currently are accepting applica-
tions for barber positions that include our Nellis AFB contract.
. . .
Enclosed are employment applications that should be com-
pleted for barbers interested in seeking employment on the new
contract. Completed applications should be scanned, then
emailed to Sheffieldbarbers@gmail.com or FAX to 573-765-
2803 no later than April 7, 2017 so that initial screening can be
completed. Sheffield Barbers looks forward to receiving appli-
cations from the barber[s] who wish to apply for employment
that could allow you to continue to serve the Military custom-
ers.
Sometime after April 17, 2017, Sheffield staff will coordinate
a job fair with the applicants to go over company expectations,
policies, and to answer questions for those selected for employ-
ment.
Respectfully,
Christina C. Deardeuff and Claudette Michels
Owners30
Among other things, the personnel data form and employment
applications from Sheffield asked GME employees for all infor-
mation Sheffield would need for hiring decisions for each GME
employee and to continue each employee’s uninterrupted build-
ing access at Nellis AFB and make barbershop scheduling
27 GC Exh. 19, Tr. 57‒58
28 Tr. 507. Deardeuff was an uncooperative witness who frequently
gave unresponsive answers to the General Counsel’s questions or mis-
stated facts. The affidavit she provided on June 20, 2017, is inconsistent
with her testimony at hearing. GC Exh. 8, Tr. 66–69. Deardeuff initially
denied having a phone call with Arnold before admitting that she did
speak with Arnold via telephone that evening while at a casino. Tr. 58–
decisions, as Sheffield asked for GME employee’s social secu-
rity number, building and work hours, citizenship status, whether
they had ever been convicted of a felony, state barber license
number, a list of equipment supplied by each employee, two pro-
fessional references, salary histories, and whether Sheffield can
contact their previous supervisor for a reference.31 The March 3
letter package, however, does not contain any disclosure to
GME’s employees by Sheffield that it intended to reduce the bar-
bershop commission rate to 33 percent or change any other terms
and conditions of employment.
On March 21, Sheffield’s Bays sent an email to the GME em-
ployees with additional information about the job fair and their
potential employment:
Dear Barbers:
Thank you very much for the submission of your application.
I am Yvonna Bays the Contract Administrator for Sheffield
Barbers, and I will be your initial point of contact during the
contract change over process.
Sheffield Barbers, LLC is an equal opportunity employer that
seeks to provide optimum service and exceed contract expec-
tations.
Sheffield is contracted to assume barbershop services on May
1, 2017. AAFES will be coordinating the exiting of the current
concessionaire and our moving into the facilities. Our contract
is to operate the Barbershop at the Main BX and a barbershop
at the Hospital. We are still evaluating sales data and personnel
needs at this time.
Sheffield will be hosting a Job Fair either on April 27th OR 28th
at the facility to go over employment offerings that we seek to
fill. As we finalize transition, I will send updated communica-
tion so that all applicants are current with developments. Those
selected and accepting employment will remain for the initial
employment packet and paperwork phase of this meeting.
Sheffield Barbers utilizes mandatory direct deposit for payroll,
if you do not have a bank account you may want to be consid-
ering where you will want to set one up.
Should you chose [sic] to attend the Job Fair, you will want to
bring copies of your barber/cosmetologist license, state issued
driver’s license, and social security card.
Sheffield Barbers requires the use of commercial hair removal
vacuums. These vacuums are the employee’s responsibility to
provide. We have arranged discounted pricing through our
sales rep Danny at Central Vacuum Supply, who are offering
ARRCO vac with 2 heavy duty hoses for the price of $414.99
plus shipping. To order your vacuum through Central Vac-
uum, call 877-822-7868 ext 6. When you call you must ask for
59. Accordingly, I credit the testimony of Arnold over the testimony of
Deardeuff as to the events surrounding the phone call after Sheffield’s
on-site inspection.
29 Tr. 60‒62; GC Exh. 5.
30 GC Exh. 5. Emphasis added.
31 GC Exh. 5 at 2‒4.
SHEFFIELD BARBERS, LLC 7
Danny and tell him you are being employed by Sheffield at Nel-
lis to receive the discounted pricing.
To the best of our knowledge, we are planning to be opened for
full operation by May 3rd, as the installation of the new equip-
ment will take a full day once we are issued the premise by
AAFES.
There will one day of training on the new CPOS system and
new shop operation policies prior to opening and this training
date will be announced at the Job Fair.
Respectfully,
Sheffield Barbers LLC32
The March 21 email also does not contain any disclosure to
GME’s employees by Sheffield that it intended to reduce the bar-
bershop commission rate to 33 percent or change any other terms
and conditions of employment other than the new requirement
that each GME employee was required to call Danny at Central
Vacuum Supply and tell him that all of GME’s employees are
being employed by Sheffield at Nellis.
As a result of the mailings, Sheffield received completed per-
sonnel forms and Sheffield employment applications from all of
the GME employees by April 7, 2017, with all of the necessary
information for Sheffield to fully screen and offer employment
to all GME employees.
The job fair began on April 28 at approximately 7:30 p.m. at
the food court located within the Nellis AFB Exchange and
ended around 8 pm.33 Deardeuff, Bays, Michels, and Dinger34
were all present on behalf of Sheffield; every GME barber except
for one was in attendance.35
32 Tr. 329; GC Exh. 6. Emphasis added.
33 Tr. 310.
34 Dinger, an unemployed former manager for Sheffield at Shaw Air
Force Base in South Carolina was flown in and put up at a Las Vegas
hotel by Sheffield to testify about events in April 2017. Tr. 64‒65. Bays
did not attend the hearing yet did most of the talking for Sheffield at the
April 28 and 29 meetings between Sheffield management and GME’s
NBA employees. Tr. 64‒65.
35 Tr. 275–278, 330–331.
36 Tr. 278–279, 293–294, 332, 428.
37 Tr. 234, 290, 293, 333, 428.
38 Tr. 290, 293, 311, 332–333, 428–429.
39 I credited the barbers’ testimony regarding the job fair over that of
Sheffield management. Deardeuff was not a credible witness, and her
testimony was uncorroborated. Tr. 65–69; GC Exh. 8. When she was
asked about what happened at the job fair, Deardeuff became defensive
and began by talking about how she mentioned the wages before a show-
ing of hands was asked for. Bays and Michels did not testify even though
Bays did most of the talking at the April 28 and 29 meetings and Michels
is Sheffield’s co-owner sister of Deardeuff’s and Michels also attended
the meetings on April 28 and 29, and she was present at the entire 2-day
hearing last January. For these reasons, Bays and Michels may reasona-
bly be assumed to be favorably disposed toward Sheffield. International
Automated Machines, 285 NLRB 1122, 1123 (1987) (internal citations
omitted), enfd. 861 F.2d 720 (6th Cir. 1988) (“while we recognize that
an adverse inference is unwarranted when both parties could have confi-
dence in an available witness’ objectivity, it is warranted in the instant
case, where the missing witness is a member of management”). Further,
that Sheffield formerly employed Bays and Michels remains a co-owner
and percipient witness with Bays to the events in 2017 makes it
Bays introduced the Sheffield representatives at the meeting.
Bays then asked the barbers to raise their hand if they wanted to
accept employment with Sheffield, at which point every em-
ployee raised their hand.36 All of the NBA employees at GME
were hired by Sheffield to work at the Barbershop at this point
on April 28, 2017, and no one else.37 At no time did Sheffield
conduct any job interviews or test any barbers before accepting
all of the GME employees as Sheffield’s barbers at Nellis AFB.
Later on April 28, after the showing of hands and acceptance
of employment by GME’s employees at Sheffield and only at the
end of the April 28 meeting, Bay first told the barbers that their
commission would be 33 percent, a 12.2 percent reduction from
their previous and current pay.38 Ruben Romero asked Bays if
the commission rate was negotiable, and Bays replied that it was
not.39 Carpenter overheard Manager Dinger say at this time on
April 28 that there was a collective-bargaining agreement in
place when Sheffield took over the military base where she was
working in 2017 on the east coast and that her pay did not go
down when Sheffield took over the barbershop there as Sheffield
maintained the commission rate for barbers in place under the
prior collective-bargaining agreement.40
Bays went on and told the barbers that under Sheffield, they
would receive the federal minimum wage and it would be $10.14
per hour and $4.27 per hour for the health and wellness and this
came out to be a 33 percent commission rate.41 The NBA barbers
were very shocked and upset to hear about the reduced 33 per-
cent commission rate because this is 12.2 percent less than the
NBA barbers were paid by GME under the CBA through April
30, 2017.42
The meeting concluded shortly after the revelation of the new
particularly within Sheffield’s power to call Bays and Michels to trial. I
therefore draw an adverse inference against Sheffield, as “when a party
fails to call a witness who may reasonably be assumed to be favorably
disposed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge. In
particular, it may be inferred that the witness, if called, would have tes-
tified adversely to the party on that issue.” Id. Thus, I infer that if Bays
and Michels each would have been called, they would each have testified
adversely to Sheffield’s and Deardeuff’s version of the facts in 2017.
Sheffield did not provide any explanation as to why Bays and Michels
did not testify, did not show that Bays and Michels were unavailable, and
did not demonstrate that it tried to subpoena each of them to hearing. See
Flexsteel Industries, 316 NLRB 745, 758 (1995) (failure to examine a
favorable witness regarding factual issue upon which that witness would
likely have knowledge gives rise to the “strongest possible adverse in-
ference” regarding such fact); Martin Luther King Sr. Nursing Center,
231 NLRB 15, 15 fn. 1 (1977) (adverse inference appropriate where no
explanation as to why supervisors did not testify); accord Graves v.
United States, 150 U.S. 118, 121 (1893) (“if a party has it peculiarly
within his power to produce witnesses whose testimony would elucidate
the transaction, the fact that he does not do it creates the presumption that
the testimony, if produced, would be unfavorable”). This lack of testi-
mony from Michels and, especially Bays, the Sheffield agent who did
most of the talking at the job fair, and the strong, credible, and consistent
testimony from Carpenter, Browning, Dyson, and Thrower, weigh heav-
ily against the credibility of Sheffield’s management witnesses who tes-
tified. Tr. 278–279, 293–294, 330–333, 429.
40 Tr. 282–283.
41 Tr. 279.
42 Tr. 279, 333.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
commission rate when custodians came to inform the group that
the Exchange was closing for the evening. One small group of
NBA barbers led by Thrower went back to the Barbershop to
discuss their options for renegotiating the new 33 percent com-
mission.
Three other barbers, Dyson, Carpenter, and Browning, stayed
in the food court to talk with the Sheffield representatives.43 Af-
ter a brief conversation, one of the Sheffield representatives, ei-
ther Deardeuff or Michels, instructed Dyson, Carpenter, and
Browning to go to the Barbershop and find out what the other
NBA barbers were talking about and to report back to Sheffield
management.44 At the Barbershop, Thrower suggested to the
other barbers that they consider a walk-out or a strike, but was
talked out of doing so.45 Instead, Thrower also suggested that
the barbers agree to meet again with Sheffield the next day to
discuss their commission rate.46
Thrower exchanged email correspondence with Deardeuff
and arranged for a meeting on April 29 at the rental home where
Sheffield management was staying.
During the morning on April 29, Bays sent out a welcome
email to the barbers who accepted employment at the job fair.
The email discussed the logistics for various training initiatives,
including PII training, POS system training, Sheffield forms, and
shop tasks. The target date for opening the Barbershop was set
for Wednesday May 3.47
All the NBA barbers attended the second meeting with Shef-
field management on April 29, except for Kellie Romero. Bays,
Michels, Deardeuff, and Dinger were all present for Sheffield.
The meeting began with the barbers asking if it was possible for
their commission to be increased. Bays told them that the com-
mission was not negotiable because the commission was deter-
mined by Sheffield’s contract with AAFES and the Department
of Labor.
Thrower informed Sheffield that there was a collective-bar-
gaining agreement and Carpenter insisted that she had a copy of
the CBA with her available to review.48 Bays called the CBA a
sham or bogus document, and Deardeuff said the CBA is a lie
and a fake document.49 Dyson informed Sheffield that she was
the president of the NBA but was told by Bays to “shut up.”50
43 Tr. 333–334.
44 Tr. 334. The witnesses for both the General Counsel and Respond-
ent provided little explanation of the conversation that occurred prior to
the Sheffield representative’s request for the barbers to spy for them at
the NBA Barbershop meeting. (Tr. 71–72, 279–281, 313–314, 333–
334). None of the three barbers, Dyson, Carpenter, or Browning, were
able to articulate who specifically made the request though Carpenter re-
called that it was either Deardeuff or Michels as some of the testimony
did not mention Bays or Dinger specifically. Id. I find that the request
was made by Sheffield management, Deardeuff or Michels, given the
consistent testimony of Dyson, Carpenter, and Browning, all three of
which are still employed by Sheffield. As stated above, Michels and
Bays did not testify for Sheffield and no other witness to the conversation
corroborated Deardeuff’s version of these events. Michels was present
at the entire hearing but Sheffield did not ask her to testify to provide
support for its version of facts.
45 Tr. 334–335.
46 Tr. 335, 431.
Ultimately, there was no increase to the barbers’ 33 percent com-
mission or any other condition of employment at the conclusion
of the meeting.
GME and the NBA barbers worked at Nellis AFB and pro-
vided uninterrupted barber services from June 2014 through
April 30, 2017, when Sheffield succeeded GME on May 1.
E. Barbershop Operations Under Sheffield
Employee orientation for the barbers began on May 1. There
was no gap in the NBA employees’ services and compensation
between the end of their employment on April 30 and the begin-
ning of operations on May 1. Like at GME and now with Shef-
field, the primary service provided by the Barbershop was hair-
cuts.51
On May 1, all of the GME NBA barber employees began work
at Sheffield and were asked to sign off on receiving the Employer
handbooks and asked to sign W-4 and I-9 documents.52 On May
2 or May 3, Bays informed the barbers that they would have to
provide their own marvicide, hand towels, tissues, and capes, all
of which were previously provided by GME.53 Also new to the
NBA barbers by May1, 2017, as first referenced in Bays’ March
21 email to GME employees, each barber was mandated to own
a vacuum, the cost of which was automatically deducted from
their paychecks.54
Also beginning on May 1, Sheffield management instituted
new rules for handling coupons, credit card receipts and short-
ages at the register. If a coupon did not have the date, name, and
telephone number of the customer, the barber was obligated to
pay for the haircut. Credit card receipts, previously held inside
the register, were to be kept next to the register. In the event of
a shortage at the register, the barbers who were working when
the shortage occurred would have to split the cost of the deficit.55
Dyson filed the NBA’s first charge against Sheffield on May
22. The charge alleged that within the last 6 months or at least
since April 29, 2017, Sheffield failed to bargain collectively and
in good-faith with the NBA by making unilateral changes to the
terms and conditions of employment without prior notice to the
NBA or an opportunity to bargain about the new rules and re-
duced commission.56 The first amended charge was filed on
47 R Exh. 6. In her hearing testimony, Deardeuff described the email
as a welcome letter for everyone who accepted employment at the job
fair. (Tr. 177.)
48 Tr. 336, 372, 431.
49 Tr. 283, 336–337, 431–432. Based on the preponderance of evi-
dence as to how the NBA’s CBA came into being, I find that the 2014
CBA between GME and the NBA barbers is not a sham or fraud and that
it was negotiated in good-faith between GME and the NBA. See GC
Exh. 16.
50 Tr. 283, 336.
51 Tr. 283–284.
52 Tr. 333.
53 Deardeuff did not contradict this testimony when discussing the
employee manual and employee expectations. (Tr. 171–173.)
54 Tr. 298; GC Exh. 6; GC Exh. 22.
55 Tr. 283–286, 337–338. These policies were all enacted on or after
May 1. GME did not charge NBA barbers for cash shortages, it would
locate the shortage in its bookkeeping or solve the infrequent shortage
on a case by case basis. Tr. 338.
56 GC Exh. 1(b).
SHEFFIELD BARBERS, LLC 9
June 6, adding an allegation that Sheffield made threats of un-
specified reprisals and statements of futility about collective bar-
gaining.57 On September 28, the NLRB issued a complaint
against Sheffield pursuant to the first amended charge.58
From May 1 to August 27, 2017, Sheffield reduced the com-
mission rate paid to all NBA barbers from 45.2 to 33 percent.59
On August 23, Sheffield’s lawyer sent a letter to Dyson in-
forming her that he and his law firm represented Sheffield and
requested that an initial bargaining session between the NBA and
Sheffield be scheduled.60 In that same letter, Sheffield ordered
Dyson to “direct all future communications regarding bargaining
to [Sheffield’s lawyers’] office.”61
With no advance notice to the NBA, on August 28, Sheffield
raised the NBA barbers’ commission rate from 33 to 45 per-
cent.62 The 45 percent commission remained for four pay peri-
ods until Sheffield changed the commission back to 33 percent
on October 23, again without any advance notice to the NBA.63
On November 21, Dyson emailed Sheffield requesting that the
NBA barbers’ commission rate be returned to 45 percent and to
bargain over the change of pay.64
During a bargaining session with Dyson, Deardeuff notified
Dyson about the reduction in commission but did not provide an
opportunity to bargain. Dyson asserted that the commission
should be returned to 45 percent pursuant to the authority of the
National Labor Relations Board (“NLRB”). Deardeuff or Shef-
field counsel informed Dyson that the Department of Labor and
not the NLRB set the commission rate at the Barbershop.65
On November 21, Dyson emails Sheffield management re-
questing that Sheffield raise the commission rate paid to NBA
barbers to 45 percent.66
On November 24, Dyson filed the NBA’s final charge against
Sheffield. The charge alleged that about since October 23, Shef-
field failed to bargain in good faith with the NBA by making
unilateral changes to the rates of pay for employees.67
F. Discipline and Discharge of UnChong Thrower
On November 9, Manager Monroe began working as a man-
ager at the Barbershop.68 Monroe ordered the barbers to remove
the tools and supplies from their workstations because of a pur-
ported failed health inspection. Thrower complied with the order
and asked Monroe if she had a copy of the alleged failed health
inspection document. Monroe told Thrower that she did not have
a copy of the document, and informed Thrower that she was the
new Sheffield manager. Thrower had worked with GME and
then Sheffield for almost 4 years at this time.
When Thrower went to check out one of her customers,
57 GC Exh. 1(c).
58 GC Exh. 1(i).
59 Tr. 389; GC Exh. 1(a).
60 GC Exh. 3.
61 Id.
62 Holly Arnold’s paystubs reflect that she was paid 33 percent com-
mission from August 14 to 27, and then paid 45 percent commission for
the pay period spanning August 28 to September 10. Tr. 84; GC Exh.
24, at 1–2.
63 Tr. 85–86, 352; GC Exh. 24, at 2–6.
64 Tr. 86‒87; GC Exh. 17.
65 It is unclear whether Deardeuff or her attorneys told Dyson that the
Department of Labor would decide the barbers’ commission.
Monroe went over to the cash register and told her that there was
a new “buddy system” governing transactions at the register.
The new policy mandated that there be two employees present
whenever a transaction at the register occurred. Thrower asked
Monroe why the policy was enacted, and Monroe responded that
it was because of shortages at the register.69
Upset and embarrassed by this response, Thrower told Mon-
roe that she did not take kindly to being accused of theft without
any proof and Monroe responds to Thrower telling her to speak
with Sheffield home office management about her complaints.
After checking out a customer, Thrower tried to explain a dif-
ferent way of handling register shortages to Monroe and re-
quested documentation of the “buddy system” policy. Monroe
again stated that she had no such documentation and instructed
Thrower to speak with Sheffield management in Missouri.
Thrower finished by telling Monroe that the barbers were all
adults who did not need to be micromanaged by a new manager.
On the Veterans Day holiday on Friday, November 10,
Thrower and Kim worked from 9 a.m. to 5 p.m. During the early
afternoon, Monroe asked which employees would like to leave
early. Thrower told Monroe and Kim that she would like to leave
early and that she was taking her Air Force member husband out
to dinner between 5:30 and 6 p.m. to celebrate Veterans Day but
was told by Monroe to stay until after 5 p.m. to help with closing
the Barbershop.70
At approximately 5 p.m., Thrower told Monroe that she was
going to leave. Monroe insisted that Thrower stay and help
Monroe with closing the Barbershop. Thrower asked Monroe if
Kim, the other remaining employee at the Barbershop, could stay
and close instead. Monroe asked if Kim was capable of closing
and Thrower, in Kim’s presence, assured Monroe that Kim could
do so as Kim had closed the Barbershop by herself at least twice
before in the last 2 weeks.71 Thrower asks Kim if she can close
on November 10 and Kim responds by saying: “Ok.”72
On her way out of the Barbershop between 5:15‒5:20 p.m.,
Thrower stopped to ask Monroe how they would be paid if they
stayed late given that they were paid based on commission.73
Monroe told Thrower that she would have to ask Sheffield man-
agement about it.74
Thrower went to work on November 11 at 9 a.m. Kim saw
Thrower and told her that it took Kim an hour to close out the
Barbershop on November 10.75 Thrower’s reaction in response
to Kim was to get angry at Manager Monroe almost yelling the
question to Kim: “Is Manager Monroe or Sheffield going to pay
you for you staying an extra hour on November 10?”76
Nonetheless, an agent or agents of Sheffield made the remark to Dyson
during the bargaining session. Tr. 86–89.
66 Tr. 354; GC Exh. 17.
67 GC Exh. 1(p).
68 Tr. 433.
69 Tr. 434–435.
70 Tr. 166–167, 437, 477–478.
71 Tr. 146, 437.
72 Tr. 437–438.
73 Tr. 146, 437–438.
74 Tr. 438.
75 Id.
76 Tr. 146–147, 154–155.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Kim next tells Thrower to stop talking and Thrower says to
Kim: “What do you know?”
Kim next asks Thrower: “What is going on?”77 Thrower an-
swers Kim by telling her about a recent incident involving Car-
penter where Carpenter was sick and missed work but was una-
ble to get a doctor’s note for Sheffield and received a write-up
from Sheffield.78
Around 10 a.m., on November 11, Monroe summoned
Thrower into the manager’s office. Dyson was waiting in the
office, and Deardeuff was on a telephone line with Monroe.
Deardeuff admits that Sheffield has a progressive discipline pol-
icy and opined that Sheffield’s written warnings to Thrower, ref-
erenced below, were to be reduced to a verbal warning after
Deardeuff discussed the November 10 events with Thrower and
Dyson.79
Manager Monroe circled and issued both a verbal and a writ-
ten warning to Thrower dated November 11 for being disrespect-
ful and insubordinate to Manager Monroe on November 9.80
Thrower said that she disagreed with both warnings and refused
to sign. Monroe and Deardeuff also admonished Thrower for
refusing to help close and making Kim stay late to assist Mon-
roe.81 Manager Monroe also told Thrower and Dyson that by not
staying to close on November 10, Thrower forced Kim to close
and Kim did not know how to close and that this created a stress-
ful night for Monroe and Kim.82
Thrower insisted that staying past her scheduled shift to help
close without pay was not part of her job duties.83 Thrower also
reminded Deardeuff and Monroe that Sheffield told the NBA
barber employees that the only ones who can close the Barber-
shop are the manager and the shop lead barber [Fiori] and that
Thrower was not a shop lead on November 10.84
Deardeuff agrees with Thrower over the telephone and tells
Thrower, Dyson and Monroe that Sheffield will not issue disci-
pline to Thrower for refusing to take responsibility and close the
Barbershop on November 10.85 This warning for refusing to take
responsibility on November 10 was next torn up by Monroe and
thrown in the trash in front of Thrower and Dyson but a copy of
it was also sent to Sheffield’s home office in Missouri to be
77 Id.
78 Thrower and Kim speak Korean together and have worked together
for at least 5 years. According to Kim, Thrower helped Kim move from
Virginia to Las Vegas to work at the Barbershop and the two have
worked side-by-side for 3 years in Virginia and at least 2 years in Las
Vegas. Tr. 150, 152, 159. Like many employees with years of working
next to each other, Kim admits that they would occasionally get on each
other’s nerves which created stress between the two of them. Tr. 159.
79 Tr. 94–95, 339, 342.
80 Tr. 439; GC Exh. 12. Dyson also signed this employee warning
report to Thrower, the first of three issued to Thrower and signed by Dy-
son on November 11.
81 Tr. 439–440.
82 Tr. 95, 439–440; GC Exh. 12.
83 Tr. 342, 440. For example, Fiori as a lead barber gets paid an ad-
ditional 2 percent more than other non-lead barbers for having the added
job duties of handling the cash registers and doing bank drops outside of
normal work hours.
84 Tr. 467–468.
85 Tr. 440.
86 Tr. 339–342; 440–441; GC Exh. 12.
placed in Thrower’s personnel file.86
After receiving her written warnings, Thrower left the office
and had a conversation with Kim. Thrower said that because
Kim did not closeout the Barbershop properly on November 10,
this became a problem for Thrower.87
When the conversation was over, Thrower left for lunch with
Dyson while Kim went to the supervisor’s office crying. Kim
told Monroe and Deardeuff that if Thrower was getting written
up, it was because of what Kim had done closing on November
10 and asked Manager Monroe if she could remove the write-up
that Thrower had received.88 Neither Monroe nor Deardeuff told
Kim that Thrower had earlier convinced them to reconsider and
tear-up the written warning to Thrower for refusing to take re-
sponsibility on November 10.
Kim opined that because of her inability to communicate well
in English, Kim was unsure whether she was able to properly
communicate this to Manager Monroe but that Monroe did not
react in any noteworthy way to Kim’s statements on November
11.89 Kim does admit that she cried in front of Manager Monroe
on November 11 because Kim believed that Thrower was getting
in trouble because of Kim’s conduct closing the Barbershop on
November 10.90
Kim spoke to Monroe and Deardeuff, who was on the phone
with Monroe and made reference to Thrower being a “strong
woman” but did not use the terms “bully” or “bullying” or “in-
timidation” or “harassment.”91 Kim insisted that she was sup-
posed to close on November 10 and asked them not to discipline
Thrower for her mistake.92
After Kim left the office, Deardeuff and Monroe agreed that
despite Sheffield’s progressive discipline policy and Thrower’s
spotless discipline record, Manager Monroe would immediately
terminate Thrower as they misinterpreted Kim’s “strong
woman” description of Thrower to be that Thrower “bullied”
Kim.93
Kim forcefully testified that she never told anyone, including
Manager Monroe or Deardeuff on November 11, that Thrower
87 Tr. 154–156.
88 Tr. 156.
89 Tr. 157.
90 Tr. 158.
91 Kim is Korean and admits that she does not speak English very
well and she is uncomfortable speaking English. Kim speaks “broken
English.” Tr. 98, 147. Deardeuff also admits that she does not speak
Korean. Tr. 97‒98. Dyson also opines that Kim does not speak English
very well. Tr. 347.
92 Tr. 98.
93 Various explanations were given for Thrower’s termination. The
2-page employee warning report states that Thrower is being issued a
written warning for “bullying” and is also being terminated for bullying
and gossiping despite Sheffield’s progressive discipline policy. Tr. 100–
101; GC Exh. 13. Monroe testified that Thrower was terminated for in-
subordination, bullying Kim, and bullying her. Tr. 248–249. Deardeuff
stated that Manager Monroe was authorized to discharge and discipline
Thrower on November 11 for bullying and because of an ongoing pattern
of bullying and intimidation although Deardeuff admits that Sheffield
has no written documentation of any prior instance or ongoing pattern of
bullying or harassment by Thrower. Tr. 89–90, 98–100, 102–103.
SHEFFIELD BARBERS, LLC 11
had gotten mad at Kim or that she felt scared.94 Dyson also told
Monroe and Deardeuff on November 11 that Thrower had never
bullied anyone as far as Dyson was concerned, and Dyson had
never heard of Thrower bullying anyone.95 Carpenter confi-
dently opined that she never observed Thrower bully or intimi-
date anyone of the NBA barbers.96 Fiori also did not hesitate to
provide her knowledge that she has never personally had any bad
experiences working with Thrower over the years.97
In fact, Kim specifically denied she was bullied by Thrower
on November 10 or 11 and she also says that Thrower, instead,
is very opinionated with a “very outgoing” personality.98 Kim
further described Thrower as a leader who Kim would some-
times follow.99
Nonetheless, Deardeuff asked Manager Monroe to call Dyson
into the office. When Dyson arrived sometime between 1–2 p.m.
on November 11, Monroe told her that Thrower had bullied and
harassed Kim, and was therefore being terminated.100 Dyson re-
sponded by telling Monroe and Deardeuff that Thrower had
never bullied anyone as far as Dyson was concerned and Dyson
had never heard of Thrower bullying anyone.101
Monroe next asked Dyson to sign the warning slips to confirm
that the warnings were discussed with Thrower. One of the two
warning slips prepared by Manager Monroe on November 11
that resulted in Thrower receiving a written warning for bullying
states as follows:
After issuing Loren UnChong Thrower a corrective for insub-
ordination she went onto the floor while customers were pre-
sent and threatened Kim Myoung Suk, “saying it was her fault
she got the corrective.” Loren [Thrower] left to lunch and Miss
Suk [Kim] came into my office Trixie Monroe the manager in
tears stating she doesn’t want to be stressed or work in an envi-
ronment that she scared of.102
Manager Monroe issued Thrower a second written warning
report also on November 11, this time a termination for bully-
ing/gossiping that states as follows:
Loren UnChong Thrower was counseled due to here [sic.] Kim
Myoung Suk close for her on 11/10/17, and agreed she
94 Tr. 156.
95 Tr. 344, 348–349. While Kim and Dyson have both noted that
Thrower has a fiery temper, Kim denies that Thrower directed any tem-
per tantrum at her on November 11 and no other credible NBA barber
came forward in support of Sheffield’s misguided belief that Thrower
lost her temper on November 11, bullied Kim, or intimidated Kim or
anyone else. Dyson further opined that with years of experience, she has
never observed Thrower being an angry person. Tr. 417.
96 Tr. 289.
97 Tr. 265–266. Fiori even confirmed my follow-up question that she
never had any personal bad experiences working with Thrower before
Thrower was terminated. Tr. 266. Unbelievably, however, Fiori
changed her unequivocal testimony and the next day during Sheffield’s
defense, Fiori made up her story that Thrower had bullied and harassed
her in response to an inappropriate leading question. Tr. 546. Later,
Fiori says that she purportedly wrote a letter to Sheffield’s owners telling
them that Thrower was harassing her. Tr. 548. No letter documenting
this was produced by Sheffield at hearing in response to the General
Counsel’s subpoena. I reject all of Fiori’s testimony in support of Shef-
field’s defense on day 2 of the hearing as untrue and in complete contra-
diction of her testimony the day before without any legitimate
understands. Right after the counseling session before she took
her lunch break she went and threatened Miss Suk. While
Loren [Thrower] was at lunch Miss Suk came into my office
(Trixie) balling her eyes out saying Loren [Thrower] threatened
her & she was extremely scared & she was the fault of Loren’s
write [sic.]. Sheffield will not tolerate bullying, stressful envi-
ronment, nor a hostile workplace and Loren [Thrower] demon-
strated them all. Loren UnChong Thrower will no longer be
employed by Sheffield Barber’s due to these reasons.103
Both discipline forms cover the same alleged conduct against
Thrower on November 11, 2017.104
Next, Thrower was called into Monroe’s office where Monroe
told her she was fired.105 Thrower asked Monroe why she was
being fired. Monroe responded that it was because she was bul-
lying and gossiping.106
At no time did Manager Monroe or Deardeuff speak to
Thrower to get her side of the story about what was said between
Thrower and Kim before Thrower left for lunch on November
11.107 Dyson told Monroe and Deardeuff that she was unaware
of any bullying done by Thrower, and requested that Thrower be
issued and warning or suspension instead as part of Sheffield’s
progressive discipline policy.108 Dyson’s recommendation was
rejected, and Thrower was fired on November 11.
The following day, Dyson asked Kim to go see a Korean in-
terpreter who worked at Nellis so that she could hear Kim’s ex-
planation interpreted to English from Korean.109 Monroe denied
Kim permission to leave the Barbershop to talk with the inter-
preter because Kim was not on break.
After Thrower was terminated and on November 14, 2017,
Manager Monroe posted a notice in the Barbershop outlining
new rules governing employee conduct.110 The notice was writ-
ten in English and not Korean and listed that the following of-
fense would be grounds for immediate termination: insubordina-
tion, bullying, gossip, and disrespect. Dictionary definitions
were provided after each listed offense. Id. Manager Monroe
handed this list of words and definitions out to NBA employees
and asked the employees to sign the list and return it back to
her.111
explanation and when compared to the overwhelming evidence provided
by more reliable witnesses that Fiori had no bad experiences with
Thrower, the CBA existed at GME prior to Sheffield’s arrival at Nellis,
and that the 33 percent commission wage rate was only mentioned by
Bays after all NBA barbers raised their hands and accepted employment
with Sheffield on April 28.
98 Tr. 157–158.
99 Tr. 158.
100 Tr. 343–344.
101 Tr. 344, 348–349.
102 GC Exh. 13 at 1.
103 GC Exh. 13 at 2.
104 Tr. 102; GC Exh. 13 at 1 and 2.
105 Tr. 441.
106 Tr. 442; GC Exh. 13 at 2.
107 Tr. 101.
108 Tr. 347, 404–405.
109 Tr. 347–349.
110 GC Exh. 14.
111 Tr. 290, 351.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
LEGAL ANALYSIS
I. CREDIBILITY
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony; the witness’ de-
meanor; and the weight of the respective evidence, established
or admitted facts, inherent probabilities, and reasonable infer-
ences that may be drawn from the record as a whole. Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Su-
shi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Deal-
ership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx.
516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, above at 622.
I have also considered the longstanding principle that “the tes-
timony of current employees that contradicts statements of their
supervisors is likely to be particularly reliable because these wit-
nesses are testifying adversely to their pecuniary interests.”
Flexsteel Industries, 316 NLRB 745, 745 (1995), enfd. 83 F.3d
419 (5th Cir. 1996), citing Gold Standard Enterprises, 234
NLRB 618, 619 (1978), enf. denied for other reasons, 607 F.2d
1208 (7th Cir. 1979) and Georgia Rug Mill, 131 NLRB 1304,
1304 fn. 2 (1961); see also Federal Stainless Sink Division of
Unarco, 197 NLRB 489, 491 (1972). As a result, I credit the
testimony of current NBA barber employees Dyson, Carpenter,
Browning, and Kim over the testimony of Manager Monroe and
Deardeuff for this reason and others provided above.
Also, I note that when credibility resolution is not based on
observations of witnesses’ testimonial demeanor, the choice be-
tween conflicting testimonies rests on the weight of the evidence,
established or admitted facts, inherent probabilities, and reason-
able inferences drawn from the record as a whole. Taylor Mo-
tors, Inc., 366 NLRB No. 69 slip op. at 1 fn. 3 (2018); Lignotock
Corp., 298 NLRB 209, 209 fn. 1 (1990).
Thrower testified in a straight-forward no-nonsense manner
confident in her recollection of the facts surrounding the April
28 and April 29 events with Sheffield management and the spe-
cific incidents from November 9—11, 2017. Thrower and Dy-
son were much more believable than Monroe and Deardeuff as
to Thrower’s spotless employment record at Respondent and her
interaction with Kim and Monroe in early November 2017.
As referenced above in my findings of fact, Deardeuff was not
a credible witness and made a number of false statements. Most
significantly, Deardeuff was not being truthful when she testified
that on April 28, 2017, the NBA employees were told that they
would be paid a new lower commission rate of 33 percent by
Sheffield before they all raised their hands and accepted employ-
ment with Sheffield in response to Bays’ invitation for employ-
ment.112 In addition, Deardeuff’s June 20, 2017 affidavit, made
under penalty of perjury, erroneously refers to an early May 2017
meeting at a house rented by Sheffield management when the
overwhelming evidence shows that this meeting took place less
than 2 months earlier over 2 days on April 28 and 29, 2017 and
not early May 2017. More importantly, in the same affidavit,
112 Tr. 65–66.
113 Tr. 75; GC Exh. 8 at 2.
Deardeuff falsely states that at this meeting with the GME NBA
barbers, Deardeuff “asked the barbers whether they were aware
of a collective-bargaining agreement (CBA)”, that “[t]he barbers
did not indicate they were aware”, and that “[t]he barbers did not
indicate they had elected a bargaining representative.”113 Instead,
Sheffield management, including Deardeuff, Bays, and Michels,
were told on April 29, 2017, that there was a binding and effec-
tive CBA between the NBA barbers and GME, Carpenter offered
to present the CBA to Sheffield management, and Sheffield man-
agement was informed that Dyson was the NBA’s bargaining
representative and its president. These facts also make false
Deardeuff’s additional declarations that: (1) Sheffield received
no direct contact from the Nellis Barbers Association; (2) she
[Deardeuff] “was not aware that the Nellis Barbers Association
existed until Sheffield receive [sic.] the [May 22] unfair labor
claim”; and (3) Deardeuff was “not aware if the Nellis Barbers
Association ever executed a CBA with the predecessor
[GME].”114
Deardeuff also misstates facts by not admitting that either she
or her sister Michels asked Dyson, Carpenter, and Browning to
go spy on the GME NBA barbers at the Barbershop and report
back to Sheffield management after the April 28 group meeting
when a smaller group of NBA barbers went back to the closed
barbershop to discuss their strategy once Sheffield management
told the NBA barbers that their commission rate would be cut to
33 percent. Deardeuff and Manager Monroe also falsely stated
that Kim had reported that Thrower had bullied and intimidated
her on November 11 when the preponderance of the evidence
shows that Kim flatly denied saying this and no one had ever
experienced any incident involving Thrower bullying or intimi-
dating another NBA barber. Finally, Deardeuff was not truthful
when she unbelievably opined that her recollection of facts that
occurred prior to June 2017 was better at the January 2018 hear-
ing than it was when she executed her affidavit under penalty of
perjury in June 2017.
II. ALLEGED VIOLATION AGAINST SHEFFIELD FOR FAILING TO
BARGAIN WITH THE NELLIS BARBERS ASSOCIATION
The General Counsel contends that Sheffield is a successor
employer to GME who had an obligation since on or before May
1, 2017, when its contract to operate the Barbershop began, to
recognize and bargain with the NBA and Dyson as the barbers’
collective-bargaining representative. Sheffield rejects these
claims with multiple arguments, including that Sheffield is not a
successor employer and that Sheffield did not represent to the
NBA and its members that it would adhere to the terms of the
predecessor’s CBA.
A. A Successor Employer and its Duty to Bargain
The Board’s successorship doctrine is “founded on the prem-
ise that, where a bargaining representative has been selected by
employees, a continuing obligation to deal with that representa-
tive is not subject to defeasance solely on grounds that ownership
of the employing entity has changed.” Hudson River Aggregates,
Inc., 246 NLRB 192, 197 (1979), enfd. 639 F.2d 865 (2d Cir.
1981), citing NLRB v. Burns Security Services, 406 U.S. 272,
114 Tr. 75; GC Exh. 8 at 3.
SHEFFIELD BARBERS, LLC 13
279 (1972). In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987), the Supreme Court agreed with the Board that a union’s
presumption of majority support:
continues despite the change in employers. And the new em-
ployer has an obligation to bargain with that union so long as
the new employer is in fact a successor of the old employer and
the majority of its employees were employed by its predeces-
sor.
482 U.S. at 41.
In NLRB v. Burns Security Services, 406 U.S. 272, 281–295,
the Supreme Court held that a successor employer is not bound
by the substantive terms of a collective-bargaining agreement
negotiated by the predecessor and is generally free to unilaterally
set initial terms and conditions of employment. The Supreme
Court further explained that the duty to bargain will not normally
arise before the successor sets initial terms because it is not usu-
ally evident whether the union will retain majority status in the
new work force until after the successor has hired a full comple-
ment of employees. Id.
The Supreme Court recognized an exception to this rule, the
“perfectly clear” exception, however, that “there will be in-
stances in which it is perfectly clear that the new employer plans
to retain all of the employees in the unit and in which it will be
appropriate to have him initially consult with the employees’
bargaining representative before it fixes terms.” Id.
In Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per
curiam 529 F.2d 516 (4th Cir. 1975), the Board addressed the
“perfectly clear” exception, and found it was “restricted to cir-
cumstances in which the new employer has either actively or, by
tacit inference, misled employees into believing they would all
be retained without change in their wages, hours, or conditions
of employment, or at least to circumstances where the new em-
ployer . . . has failed to clearly announce its intent to establish a
new set of conditions prior to inviting former employees to ac-
cept employment.” Creative Vision Resources, LLC, 364 NLRB
No. 91, slip op. at 3 (2016). Acknowledging that “the precise
meaning and application of the Court’s caveat is not easy to dis-
cern,” the Board reasoned that “[w]hen an employer who has not
yet commenced operations announces new terms prior to or sim-
ultaneously with his invitation to the previous work force to ac-
cept employment under those terms, we do not think it can fairly
be said that the new employer ‘plans to retain all of the employ-
ees in the unit,’ as that phrase was intended by the Supreme
Court,” because of the possibility that many of the employees
will reject employment under the new terms, and therefore the
union’s majority status will not continue in the new work force.
Id.
In cases subsequent to Spruce Up, the Board clarified that the
perfectly clear exception is not limited to situations where the
successor fails to announce initial employment terms before it
formally invites the predecessor’s employees to accept employ-
ment. Rather, a new employer has an obligation to bargain over
initial terms when it displays an intent to employ the predeces-
sor’s employees without making it clear that their employment
will be on different terms from those in place with the predeces-
sor. Creative Vision Resources, LLC, at 3, citing Canteen Co.,
317 NLRB 1052, 1053–1054 (1995), enfd. 103 F.3d 1355 (7th
Cir. 1997). Thus, in applying the “perfectly clear” exception of
Burns, the Board scrutinizes not only the successor’s plans re-
garding the retention of the predecessor’s employees, but also
the timing and clarity of the successor’s expressed intentions
concerning existing terms and conditions of employment. Cre-
ative Vision Resources, LLC, at 7. To avoid “perfectly clear”
successor status, a new employer must clearly announce its in-
tent to establish a new set of conditions prior to, or simultaneous
with, its expression of intent to retain the predecessor’s employ-
ees. Nexeo Solutions, LLC, 364 NLRB No. 44, slip op at 6
(2016).
B. Sheffield is a Perfectly Clear Successor to GME
The evidence in this case establishes that Sheffield is a per-
fectly clear successor to GME. It is undisputed that a majority
of GME’s barbers were hired by Sheffield; in fact, all of Shef-
field’s barbers were hired from GME. The only applicants in
attendance at the job fair were the then-current barbers of GME.
Sheffield did not bring in any outside personnel to staff the Bar-
bershop when it assumed operations, waiting approximately 6
months before bringing in Manager Monroe.
I find that Sheffield’s March 3 letter package to all of GME’s
employees manifested Sheffield’s intent to retain all GME’s em-
ployees because it was sent to each of them and it asked for them
all to complete and return to Sheffield the enclosed employment
applications and personnel data forms which allowed Sheffield
to fully screen each employee in advance once it received the
requested information by April 7. Nowhere in the March 3 letter
package is there any reference to Sheffield’s intention to reduce
each barber’s commission to 33 percent or make any other
changes to the then-current terms and conditions of their employ-
ment.
After submitting extensive personnel data information and
employment applications to work for Sheffield by April 7, the
barbers were once again informed of a job fair by Bays’ March
21 email, which turned out to be a mere formality in the hiring
process. Applicants were told to bring employment credentials,
set up a bank account if they did not already have one, and pur-
chase a vacuum. The March 21 email also stated that those se-
lected and accepting employment were instructed to “remain for
the initial employment packet and paperwork phase of this meet-
ing.” Aside from a cursory statement that “we are evaluating
employment needs,” no indication was given that not all appli-
cants would be accepted for employment or that there were any
additional steps in the hiring process such as a job interview or
testing beyond attending the job fair with the proper credentials
and raising their hands when offered employment. While the
March 21 email contains one change in the GME employees’
terms and conditions of employment – the requirement that they
purchase a $414.99 vacuum, there is no reference to Sheffield’s
intention to reduce the barbers’ commission to 33 percent or
change any other term or condition of their employment.
This case is analogous to Creative Vision Resources, LLC, 364
NLRB No. 91 (2016). In that case, the new employer distributed
applications to the predecessor’s employees and told them that
those who wished to retain their jobs after the transition were
required to complete an application and tax form; the employer
did not interview the employees. Id. at 2. The Board noted that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
allowing a successor to convince a majority of the predecessor’s
employees to not seek other work by avoiding telling them about
changes in their terms and conditions of employment would be
at odds with the Supreme Court’s decision in Burns and the
Board’s decision in Spruce Up. Id. at 6, citing S & F Market
Street Health Care, 570 F.3d 354, 359 (D.C. Cir. 2009) (holding
that the perfectly clear exception is intended to prevent an em-
ployer from inducing possibly adverse reliance upon the part of
employees lulled into not looking for other work).
Thus, the Board found that a new employer that expresses an
intent to retain the predecessor’s work force without concur-
rently revealing that different terms and conditions of employ-
ment will be instituted, improperly benefits from the likelihood
that those employees, lacking knowledge that terms and condi-
tions will change, will choose to stay in the positions they held
with the predecessor, rather than seek employment elsewhere.
Creative Vision Resources, LLC, 364 NLRB No. 91, slip op. at
6. In this case, Sheffield made no reference to making specific
changes to GME’s terms and conditions of employment until af-
ter the barbers raised their hands at the April 28 job fair to accept
employment. Sheffield’s shocking revelation of the considera-
bly lower commission rate did not occur until the very end of the
April 28 job fair after the GME employees had already said yes
to Sheffield’s offer of employment, 3 days before Sheffield was
to assume operations from GME.
Sheffield insists that it was “obvious” from the communica-
tions to the barbers leading up to the job fair that there were go-
ing to be new terms and conditions of the barbers’ employment.
However, the only example cited is the requirement for the pur-
chasing of vacuums, which would also indicate that the GME
barbers were all-but-guaranteed employment with Sheffield
prior to the job fair. Avoiding perfectly clear successor status
requires an employer to clearly announce its intent to alter terms
and conditions before offering employment to the predecessor’s
employees. Starco Farmers Market, 237 NLRB 373, 373
(1978). None of the vague language in the March 3 letter pack-
age or the March 21 email Sheffield sent to the GME employees
before the job fair is convincing evidence of Sheffield’s intent to
make specific changes to the terms and conditions of the barbers’
employment despite Sheffield’s knowledge of the 45.2 percent
commission rate and the ongoing CBA.
In sum, Sheffield retained a majority of GME’s employees
and intended to continue the exact same barber business operated
by GME uninterrupted. Sheffield gave GME’s employees the
impression that they were all welcome to work for Sheffield
should they return the requisite personnel data information and
employment applications by April 7, possess the proper creden-
tials, and attend the Sheffield job fair. The only change the GME
barbers were appraised of was the need to purchase their own
vacuums if they wanted to work for Sheffield. Bay’s March 21
email plainly indicated that the barbers were to begin the process
of preparing for the first day of work by purchasing their own
commercial hair removal vacuums after telling the vacuum
salesman Danny that they were already employees of Sheffield
well before April 28. Sheffield communicated the change in the
vacuum policy to the barbers in the March 21 email prior to the
April 28 job fair but chose to withhold the other changes it in-
tended to make until after it had secured employment from the
GME barbers. Sheffield’s concealment of its changes to GME’s
terms and conditions of employment to avoid losing the conven-
ience of hiring GME’s employees is exactly what the Supreme
Court in Burns and the Board in Spruce Up sought to avoid
through the successorship doctrine.
Accordingly, I find that Sheffield expressed an intent to retain
all of GME’s employees without making it clear that employ-
ment would be conditioned on the acceptance of new commis-
sion and other terms and conditions of employment other than
the required purchase of a new vacuum. As a result, Sheffield is
a perfectly clear successor to GME in April 2017 when GME’s
employees accepted Sheffield’s job offer on April 28.
C. Unlawful Unilateral Changes to Work Terms and
Conditions
The amended complaint alleges that Sheffield violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally taking the follow-
ing actions without prior notice to the NBA or providing the
NBA an opportunity to bargain: changing the NBA barbers’
commission, requiring the NBA barbers to pay for and provide
their own marvicide and paper towels, requiring the NBA bar-
bers to pay for the cost differential of improperly processed cou-
pons, and requiring the NBA barbers to keep customer credit
card receipts in the open rather than in the cash register. The
General Counsel also asserts that Sheffield violated Section
8(a)(1) by promulgating a new employee conduct policy to chill
the NBA barbers’ protected concerted activities. Sheffield con-
cedes that it took these unilateral actions but asserts that it was
justified in taking these actions. Sheffield raises the defenses
that it was not a clear successor to GME, the NBA barbers con-
sented to the new terms by accepting employment, and that the
employee conduct policy was posted at Thrower’s request and
was already contained in the employee handbook.
As provided above, Sheffield is a perfectly clear successor to
GME and cannot defend its unilateral actions by asserting that it
had the unbridled right to set the terms and conditions of em-
ployment for the NBA barbers as it saw fit. Sheffield’s assertion
that the barbers consented to Sheffield’s new terms and condi-
tions of employment because they were not employed until May
1 also lacks merit. The barbers responded affirmatively to Shef-
field’s explicit verbal offer of employment at the job fair, and
Bay’s March 21 email plainly indicated that the barbers were to
begin the process of preparing for the first day of work by pur-
chasing their own commercial hair removal vacuums after telling
the vacuum salesman Danny that they were already employees
of Sheffield well before April 28. The employment documents
signed on May 2 explicitly instructed the employees to not sign
them until after accepting employment. The preponderance of
the evidence indicates that the NBA barbers were employed on
April 28 from the moment they raised their hands in unison to
accept Sheffield’s verbal offer of employment.
1. Legal standard
Where a unilateral change in the terms or conditions of em-
ployment is material, substantial, and significant, such a change
constitutes a violation of Section 8(a)(5) and (1) of the Act. An-
gelica Healthcare Services Group, 284 NLRB 844, 853 (1987)
(noting that there is a statutory bargaining obligation where the
unilateral change affecting the terms and conditions of
SHEFFIELD BARBERS, LLC 15
employment of bargaining unit employees is material, substan-
tial and significant. “A change is measured by the extent to
which it departs from the existing terms and conditions affecting
employees.” Southern California Edison Co., 284 NLRB 1205
fn. 1 (1987), enfd. mem. 852 F.2d 572 (9th Cir. 1988).
Not every unilateral change, however, constitutes a violation
of the bargaining obligation. Compare J.W. Ferguson & Sons,
299 NLRB 882, 892 (1990) (finding that the change was not ma-
terial, substantial, and significant where the employer increased
the lunch break by 5 minutes and decreased the afternoon break
by 5 minutes; Weather Tec Corp., 238 NLRB 1535 (1978) (find-
ing the employer’s decision to end paying for coffee supplies that
employees used was not a material, substantial and significant
change) with The Bohemian Club & Unite Here! Local 2, 351
NLRB 1065, 1066 (2007) (finding changes to cleaning duties
were material, substantial, and significant because cooks had to
work an extra 30 minutes to accomplish new tasks, and involved
new tasks such as wiping down walls, counters, refrigerator
doors, and sweeping the floor) and Crittenton Hospital, 342
NLRB 686, 690 (2004); (finding a change in the dress code pol-
icy a material, substantial, and significant change to the terms
and conditions of employment).
2. Sheffield’s changes to the NBA employees’ commission
The change in the commission rate touches directly on wages,
a mandatory subject of bargaining under the Act. 29 U.S.C. §
159(a). Sheffield changed the rate to 33 percent, then 45 percent,
then back to 33 percent without allowing the NBA the oppor-
tunity to bargain. Sheffield mistakenly relied on its own legal
conclusions and representations made by AAFES in denying
both the validity of the existing CBA and the NBA’s right to
prior notice and an opportunity to bargain over the terms and
conditions of the barbers’ employment.
Sheffield’s insistence that it bargained in good-faith over the
NBA barbers’ commission is unfounded. On one occasion, Dy-
son was given prior notice of a change in the commission rate
but was nonetheless told that there would be no bargaining over
the change. Sheffield repeatedly told Dyson that the NBA’s
CBA did not dictate the barbers’ commission and that the De-
partment of Labor’s wage assessments were determinative. As
discussed below, Sheffield engaged in coercive behavior during
a bargaining session with the NBA, further discrediting its argu-
ment that it was a good-faith bargainer. Accordingly, Sheffield’s
unilateral changes to the commission of the NBA barbers with-
out providing the NBA with prior notice and an opportunity to
bargain in good-faith are a violation of Section 8(a)(5) and (1) of
the Act.
3. Sheffield’s changes to GME policies and practices
The NBA barbers were accustomed to having marvicide and
paper towels provided for them by their former employer GME
prior to Sheffield’s ownership of the Barbershop. Barbers were
required to have both items according to the employee hand-
book, local health and safety laws, and as part of the tools of the
trade. Simply put, a barber could not work without possessing
an ample supply of marvicide and paper towels at all times. The
policies governing the provision of marvicide and paper towels
were material aspects of employment, any changes to which
were subject to the duties to provide prior notice and an
opportunity to bargain. See Local 2179, United Steelworkers of
Am. v. N.L.R.B., 822 F.2d 559, 565–566 (5th Cir. 1987) (any sub-
ject classified as a “term or condition of employment” is a man-
datory bargaining matter). Sheffield’s failure to provide notice
and bargain with the NBA over the changes to the marvicide and
paper towel policies was in violation of Section 8(a)(5) and (1)
of the Act.
Sheffield’s imposition of a new policy requiring the NBA bar-
bers to pay for the cost differential of improperly processed cou-
pons constituted a substantial and significant change subject to
prior notice and bargaining. This policy, when enforced, would
affect the wages a barber would receive for their work. Sheffield
claimed that it needed to institute this policy to avoid theft and
maintain economic viability, however, theft prevention and eco-
nomic expediency are preempted by the employer’s obligation
to bargain over a material or substantial term of employment.
See Van Dorn Plastic Machinery Co., 265 NLRB 864, 865
(1982), modified 736 F.2d 343 (6th Cir. 1984) (finding a viola-
tion of Section 8(a)(5) where the employer implemented a new
attendance policy without a compelling economic justification).
Accordingly, Sheffield violated Section 8(a)(5) and (1) of the
Act when it unilaterally implemented a new coupon rule without
providing the NBA with notice and an opportunity to bargain.
Sheffield’s requirement that barbers must place receipts out-
side the register instead of inside the register does not implicate
a material or substantial term of employment and could be im-
plemented unilaterally without notice or bargaining with the
NBA. This minimal change in policy likely made it more diffi-
cult for the barbers to process their tips, as the General Counsel
contends. Although this new policy was objected to by the em-
ployees, the situation is akin to the slight inconveniences faced
by employees after having their break times adjusted by 5
minutes, J.W. Ferguson & Sons, and their free coffee eliminated,
Weather Tec Corp. Absent a showing that the handling of re-
ceipts was a significant term or condition of employment, Shef-
field was entitled to implement a change in the policy for han-
dling receipts without prior notice or bargaining with the NBA.
III. ALLEGED SECTION 8(A)(1) VIOLATIONS BY SHEFFIELD
A. Surveillance After April 28 Job Fair
The General Counsel alleges that on April 28, after all GME
employees had accepted Sheffield employment offers, Sheffield
surveilled a small group of NBA employees engaged in protected
activities at the Barbershop by telling other employees to find
out what was being discussed at the Barbershop. An employer
violates Section 8(a)(1), when it “surveils employees engaged in
Section 7 activity by observing them in a way that is ‘out of the
ordinary’ and therefore coercive.” Aladdin Gaming LLC, 345
NLRB 585, 586 (2005). Indicia of coerciveness include the “du-
ration of the observation, the employer’s distance from its em-
ployees while observing them, and whether the employer en-
gaged in other coercive behavior during its observation.” Id.
Similarly, an employer crosses the line of permissible surveil-
lance when its representatives engage in behavior that is “out of
the ordinary.” Arrow Automotive Industries, 258 NLRB 860
(1981), enfd. 679 F.2d. 875 (4th Cir. 1982) (finding that the em-
ployer “took action which was quite ‘out of the ordinary”’ when
eleven of its supervisors lined up in varying numbers at the gates
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
where union handbilling was occurring). Indeed, the mere act of
monitoring employees’ union activity can contribute to an “at-
mosphere of fear and intimidation.” Smithfield Packing Co., Ind.,
344 NLRB 1, 163 (2004). Ultimately, the determination as to
whether an employer has engaged in unlawful surveillance is an
objective one based on the totality of the circumstances. Sage
Dining Services, Inc., 312 NLRB 845, 856 (1993); Brown Trans-
portation Corp., 294 NLRB 969, 971–972 (1989).
In this case, Sheffield’s management was aware that the NBA
barbers at GME were returning to the Barbershop to discuss the
commission rate given the hostility the barbers displayed after
being told of their reduced commission to 33 percent. Deardeuff
and Michels as Sheffield’s management requested that Dyson,
Carpenter, and Browning listen in on the NBA barber employ-
ees’ discussion because they were impliedly excluded from the
conversation. On the night of the job fair, Sheffield did not own
the Barbershop, distinguishing this case from others like Emenee
Accessories and Milco where employers were found to have a
right to observe open activities on their own premises. Shef-
field’s request for certain employees to listen in on a private dis-
cussion of wages as terms and conditions of employment occur-
ring on property not yet owned or leased by Sheffield falls within
the umbrella of quite “out of the ordinary” activities suggested
in Arrow Automotive Industries. Regardless of whether the three
barbers followed Sheffield’s instructions, the request to spy itself
can contribute to an atmosphere of fear and intimidation against
the NBA’s continuing exercise of its Section 7 activities as Shef-
field was conveying the message that in the future, Sheffield
management would be watching the NBA employees’ protected
concerted activities. Thus, I find that this spying request was out
of the ordinary, and Sheffield has not provided a compelling jus-
tification for the request. See Sands Hotel & Casino, 306 NLRB
172 (1992) (finding an 8(a)(1) violation for unlawful surveil-
lance where the employer failed to introduce evidence that its
“out of the ordinary” conduct was based on legitimate concerns),
enfd. 993 F.2d 913 (D.C. Cir. 1993). Under the totality of the
circumstances, I conclude that Sheffield violated Section 8(a)(1)
of the Act by directing employees Dyson, Carpenter, and Brown-
ing to listen in on the employee compensation discussions that
occurred at the Barbershop after the job fair and to report back
what their spying uncovered to Sheffield management and en-
gaging in the surveillance of employees’ union activities. See,
e.g., Methodist Hospital of Kentucky, Inc., 318 NLRB 1107,
1133‒1134 (1995); Fieldcrest Cannon, Inc., 318 NLRB 470, 503
(1995); Trump Plaza Hotel and Casino, 310 NLRB 1162 (1993).
Accordingly, Sheffield violated Section 8(a)(1) of the Act.
B. Sheffield’s Statements About the CBA and During
Bargaining
In determining whether an employer's conduct amounts to in-
terference, restraint, or coercion within the meaning of Section
8(a)(1), the test is not the employer's intent, but whether the con-
duct reasonably tends to interfere with the free exercise of the
rights guaranteed employees by the Act. Idaho Pacific Steel
Warehouse, 227 NLRB 326, 331 (1976). The coercive tenden-
cies of an employer's conduct must be assessed within the totality
of circumstances surrounding the incidents alleged to be unlaw-
ful. NLRB v. Brookwood Furniture, Division of U.S. Industries,
701 F.2d 452, 456 (5th Cir. 1983), NLRB v. Laredo Coca Cola
Bottling Co., 613 F.2d 1338, 1342 (5th Cir. 1980), cert. denied,
449 U.S. 889 (1980).
During the April 29 meeting, the NBA barbers informed Shef-
field that there was an existing CBA and attempted to bargain
over their commission rate. Deardeuff and Bays responded by
telling the barbers that the CBA was a fraud, and that the rate of
pay was effectively not negotiable. When Dyson spoke up and
asserted that she was the president of the NBA, the organization
that bargained for the CBA, Bays told her to shut up. Although
Sheffield felt justified in its belief that the CBA was fraudulent,
Idaho Pacific Steel Warehouse expressly states that the em-
ployer’s intent carries no weight in the analysis. The swift and
immediate rejection of the CBA’s relevance and validity was an
attempt to undermine the NBA’s bargaining authority as owner-
ship transitioned from GME to Sheffield. The silencing of NBA
president Dyson, the person most responsible for the creation of
the NBA and resultant CBA, would reasonably lead the barbers
to believe that asserting the terms of the existing CBA or nego-
tiating with Sheffield via the NBA were both futile endeavors. I
find that Sheffield’s statement that the CBA was a fraud and
Bays telling Dyson to “shut up” are both independent violations
of Section 8(a)(1) of the Act.
The General Counsel asserts that on November 13, Sheffield
told Dyson that “her labor board was better than their labor
board.” This assertion was supported by testimony from Car-
penter who overheard Dyson having a telephone conversation
with Deardeuff. Although Carpenter’s testimony was uncorrob-
orated by Dyson, Deardeuff conceded that she told Dyson during
a bargaining session on November 17 that the Board did not have
the authority to reinstate a commission of 45 percent for the NBA
barbers. Deardeuff’s dismissal of the Board’s authority effec-
tively told the barbers that their rights under the Act were sub-
servient to Sheffield’s contract because it was approved by the
Department of Labor. Deardeuff did not want to pay a commis-
sion rate near 45 percent and used the Department of Labor as a
crutch to prevent the NBA from asserting its rights under the Act
to restore the higher commission or at least bargain over com-
mission. Under the totality of the circumstances, Deardeuff’s
comments about having the support of the Department of Labor
superior to the National Labor Relations Board were unlawful
under Section 8(a)(1) of the Act.
IV. ALLEGED ADVERSE ACTION AGAINST UNCHONG THROWER
The complaint alleges that Monroe and Deardeuff terminated
Thrower’s employment because she engaged in concerted pro-
tected activities and to dissuade others from engaging in such
activities. Thrower was one of the leaders behind the NBA’s
efforts to negotiate a higher commission rate with Sheffield after
Sheffield assumed ownership of the Barbershop. Sheffield con-
tends that Thrower’s discharge resulted primarily from her bul-
lying of fellow employee Kim. Sheffield also contends that
Thrower was an insubordinate employee who engaged in an on-
going pattern of bullying.
In determining whether Thrower was subjected to adverse em-
ployer action because she engaged in protected or union activity,
the appropriate test is found in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
SHEFFIELD BARBERS, LLC 17
989 (1982), approved at NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). The General Counsel
must initially show the employee’s protected activity was a mo-
tivating factor in the decision to terminate. See Coastal Sunbelt
Produce, Inc., 362 NLRB 997, 997 (2015) (“Under Wright Line,
the General Counsel has the initial burden to show that protected
conduct was a motivating factor in the employer’s decision”).
Establishing unlawful motivation requires proof that: “(1) the
employee engaged in protected activity; (2) the employer was
aware of the activity; and (3) the animus toward the activity was
a substantial or motivating reason for the employer’s action.”
Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007),
enfd. 577 F.3d 467 (2d Cir. 2009) (unlawful motivation found
where the employee became active in union activity, the em-
ployer was aware that he was leading employee meetings, and
the employer singled out the employee for testing).
If the General Counsel prevails, the burden shifts to the Re-
spondent to prove that it would have terminated Thrower regard-
less of her protected concerted activity. Wright Line, 251 NLRB
at 1089; Manno Electric, 321 NLRB 278, 281 (1996) (em-
ployer’s affirmative defenses failed to establish that it would
have transferred the workers to new job sites regardless of their
union activities). An employer may not offer pretextual reasons
for discharging an employee. Metropolitan Transportation Ser-
vices, 351 NLRB 657, 659 (2007) (finding that employer’s reli-
ance on a minor infraction and a claim of insubordination were
pretexts for discharging an employee); Golden State Foods
Corp., 340 NLRB 382 (2003) (noting that there is no need to
perform the second part of the Wright Line test if the reasons for
discharge are merely pretextual.
A. Thrower Engaged in Concerted Protected Activity
Protected concerted activity is defined as activity which is
“engaged in with or on the authority of other employees, and not
solely by and on behalf of the employee himself.” Meyers Indus-
tries, 268 NLRB 493 (1984) (Meyers I), cert. denied 474 U.S.
948 (1985), supplemented 281 NLRB 882 (1986) (Meyers II),
cert denied. 487 U.S. 1205 (1988). In Meyers II, the Board
broadened the scope of the definition to include “circumstances
where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bring-
ing truly group complaints to the attention of management. Mey-
ers II, 281 NLRB at 887.
Thrower led and gathered a group of employees at the Barber-
shop immediately after the job fair to discuss possible collective
actions to take toward getting back their 45.2 percent commis-
sion. Thrower further engaged in protected concerted activity
when she exchanged correspondence with Sheffield about the
barbers’ desire to have a meeting with Sheffield management to
discuss raising their commission rate. At the meeting, at which
all of Sheffield’s owners were in attendance, Thrower tried to
inform Sheffield that there was a CBA in effect at the barber-
shop. It is undisputed that these activities were protected under
Section 7 of the Act.
In the 2 days prior to her termination, Thrower complained
115 On cross-examination, Deardeuff mentioned a “Christie Perez”
who was allegedly terminated for bullying at a different Sheffield facil-
ity. However, no evidence of this termination was produced in response
about Sheffield’s micromanagement of the barbers, asked Mon-
roe for documentation to verify the alleged failed health inspec-
tion, and queried Manager Monroe as to how the barbers would
be paid if they worked late. Although Thrower was not specifi-
cally authorized to speak on behalf of the other barbers, her ac-
tivity is nonetheless cognizable under Section 7. See Wyndham
Development Corp., 356 NLRB 765, 767 (2011); Herbert F.
Darling, Inc., 287 NLRB 1356, 1360 (1988). Thrower’s activi-
ties raised concerns with new Sheffield business practices that
were germane to the other barbers, including Kim who was also
present on November 10 when Thrower asked if barbers would
be paid for staying late to close the Barbershop. In bringing these
group issues to Monroe’s attention, Thrower satisfied Myers II
and earned Section 7 protection for her protected activities.
B. The Discharge was Motivated by Animus
Common indicators of animus are a showing of “suspicious
timing, false reasons given in defense, failure to adequately in-
vestigate alleged misconduct, departures from past practices, tol-
erance of behavior for which the employee was allegedly fired,
and disparate treatment of the discharged employee.” Medic
One, Inc., 331 NLRB 464, 475 (2000). Unlawful motive can be
proven by direct evidence or circumstantial evidence of general
animus. See Lewis Grocer Co., 282 NLRB 166 (1986) (finding
unlawful motivation based on the suspicious timing of discipline
and respondent’s knowledge that the discriminate was involved
in a Board investigation).
Thrower worked at the Barbershop for almost 4 years, and alt-
hough she was known to have disagreements with co-workers
from time-to-time, she did not have a reputation for bullying nor
was she disciplined for bullying or any other reason prior to No-
vember 2017. By Thrower and Kim’s own accounts, the two
were amicable and had no major disputes during their tenure to-
gether at the Barbershop. The only witnesses who testified that
they were bullied by Thrower were Monroe and Deardeuff, both
of whom offered inconsistent testimony and were not credible
witnesses. Sheffield produced no evidence of previous termina-
tions for bullying, either at the Nellis facility or any other facility
that it operated.115
Without providing a valid justification, Sheffield determined
that Thrower needed to be terminated for bullying Kim even
though Monroe originally drafted a written warning for the same
offense. Notably, Sheffield failed to do a thorough investigation
of Thrower’s alleged misconduct, and even took steps to prevent
additional investigative measures from occurring. Neither Mon-
roe nor Deardeuff consulted with Thrower prior to making their
decision to terminate her. Despite Kim’s very limited English
language skills, Deardeuff and Monroe made no efforts to cor-
roborate Kim’s recounting of her interaction with Thrower.
When Dyson attempted to solicit the services of a Korean-lan-
guage translator, which would have allowed Kim to describe
what happened in her native language, Monroe prevented Dyson
from taking Kim out of the Barbershop. Deardeuff misconstrued
Kim’s statements about Thrower being a “strong woman” and
relied exclusively on this misinterpretation to terminate Thrower
to the General Counsel’s subpoena, and thus no weight is given to
Deardeuff’s testimony on this subject.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
despite the obvious ambiguity of Kim’s remark and the availa-
bility to investigate the matter further. Moreover, Sheffield did
not apply its customary progressive discipline policy for this in-
cident as Dyson requested and Sheffield did not issue Thrower a
written warning or suspension rather than termination to a first-
time discipline offender who had worked at Nellis in the NBA
for almost 4 years with no prior disciplinary record.
The Board also find animus towards employees’ protected
concerted activity where contemporaneous unfair labor practices
are found, as in this case where there was unlawful surveillance
by Deardeuff and Michels referenced above and Deardeuff’s
contemporaneous bad faith bargaining with Dyson and the NBA
also in April, May, and November. See Bates Paving & Sealing,
Inc., 364 NLRB No. 46, slip op. at 3 (2016) (contemporaneous
unfair labor practices evidence of animus).
Finally, I find that the Sheffield failed to show that it would
have terminated Thrower in the absence of its knowledge that
she had engaged in protected concerted activity. To rebut the
General Counsel’s prima facie case, Respondent asserts that
Thrower would have been terminated even absent her concerted
protected activity because of her bullying of Kim. As the Board
has noted, it is not enough for an employer to merely assert a
good reason for its allegedly unlawful action. In order to rebut a
prima facie case of discrimination, the employer must show by a
preponderance of the evidence that it would have taken the same
action for the asserted reasons in the absence of protected activ-
ity. Abbey’s Transportation Services, 284 NLRB 698, 701
(1987), enfd. 837 F.2d 575 (2d Cir. 1988); Peter Vitalie Co., 310
NLRB 865, 871 (1993).
The Board has consistently held that “when an employer vac-
illates in offering a rational and consistent account of its actions,
an inference may be drawn that the real reason for the conduct is
not among those asserted.” Aluminum Technical Extrusions, 274
NLRB 1414, 1418 (1985). Monroe and Deardeuff did not pro-
vide consistent reasons for why Thrower was terminated. Alt-
hough the alleged bullying of Kim was the most vocalized rea-
son, other justifications included an alleged pattern of intimida-
tion and bullying, and Thrower specifically bullying Monroe and
Fiori. None of these added allegations of intimidation or bully-
ing were documented or corroborated and were all raised for the
first time at hearing. Even if the uncorroborated allegations
against Thrower possessed merit, the shifting explanations serve
as potent evidence that the reasons for Thrower’s termination
were pretextual. See U.S. Coachworks, Inc., 334 NLRB 955,
957 (2001) (finding the employer’s reasons for terminating the
discriminate were pretextual where the employer added two new
justifications for the discharge at hearing).
The aforementioned circumstances provide a strong indica-
tion that Thrower was terminated because of her protected con-
certed activities. Sheffield has not met its Manno burden of
proving by a preponderance of the evidence that it would have
terminated Thrower regardless of her protected activity. Under
the totality of the circumstances, the suspicious character of
Sheffield’s investigation into Thrower’s alleged misconduct, and
the shifting reasons for termination create an inference of pretext
that sustains the General Counsel’s claim that Thrower was ter-
minated in violation of Section 8(a)(1) of the Act.
V. SHEFFIELD’S UNLAWFUL RULES FOR EMPLOYEE CONDUCT
On November 14, Sheffield implemented new rules for em-
ployee conduct and posted them in the Barbershop after
Thrower’s termination. The Board’s decision in Boeing Co., 365
NLRB No. 154 (2017), did not disturb Board precedent holding
that employers may not promulgate new rules in response to un-
ion activity or protected concerted activity. Lafayette Park Ho-
tel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir.
1999). Sheffield claims that the employee conduct policy posted
on November 14 was done at Thrower’s request. This assertion
lacks credibility given that Thrower had just been terminated and
supposedly requested the posting to inform the Korean barbers
about the policy. Suspiciously, there was no Korean words on
the posting at all as the defined listings were in English and not
Korean. Sheffield did not introduce evidence indicating that the
new policy previously existed in the employee handbook or that
the employees were otherwise put on notice prior to November
14. Having failed to meet its burden of establishing that it did
not create the new employee conduct policy in response to
Thrower’s protected concerted activity, Sheffield’s implementa-
tion of the rule is a violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Sheffield Barbers, LLC (Sheffield), is an
employer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Nellis Barbers Association (NBA) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of Sheffield constitute a unit ap-
propriate for collective bargaining within the meaning of Section
9(b) of the Act:
All barbers except the base manager, supervisors, and other
employees excluded under the terms of the National Labor Re-
lations Act.
4. Since on or about April 28, 2017, the NBA has been the
exclusive collective-bargaining representative of Sheffield’s em-
ployees in the above-described unit.
5. Respondent Sheffield is a successor employer to Gino Mo-
rena Enterprises.
6. Since on or about April 28, 2017, Respondent Sheffield
engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act by refusing, as successor to Gino Mo-
rena Enterprises, to recognize and bargain with the NBA as the
representative of the employees at the Nellis Air Force Base bar-
bershop performing barber work, concerning their terms and
conditions of employment and unilaterally setting initial terms
and conditions of employment for unit employees without first
giving notice to and bargaining with NBA about those changes
including: (a) the reduction of commission rates paid to the unit
member employees; (b) changing the marvicide and paper tow-
els policies; and (c), and implementing a new coupon rule.
7. Sheffield engaged in the unfair labor practice of: (a) sur-
veillance of its employees’ union activities; (b) stating that the
NBA’s CBA was a fraud and Sheffield management telling NBA
business representative Dyson to “shut up”; and (c) Sheffield
commenting to the NBA business representative Dyson about
having the support of the Department of Labor superior to the
SHEFFIELD BARBERS, LLC 19
National Labor Relations Board; within the meaning of Section
8(a)(1) of the Act.
8. By terminating employee UnChong Thrower on November
11, 2017, because of her protected concerted activities for her
complaining about Sheffield’s micromanagement, it’s new rules
related to the buddy system and complaining about not being
paid to stay beyond regular work hours to close the Barbershop,
the Respondent violated Section 8(a)(1) of the Act and interfered
with, restrained, and coerced Thrower in the exercise of the
rights guaranteed in Section 7 of the Act.
9. By promulgating and maintaining discriminatory rules on
November 14, 2017, in retaliation of Thrower’s protected con-
certed activities, Respondent, through Monroe, violated Section
8(a)(1) of the Act.
10. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
11. The Respondent did not otherwise engage in any other
unfair labor practices alleged in the complaint.
REMEDIES
Having found that the Respondent Sheffield Barbers, LLC has
engaged in certain unfair labor practices in violation of Section
8(a)(5) and (1) of the Act, I find that they must cease and desist
from such practices and take certain affirmative action designed
to effectuate the policies of the Act.
Respondent Sheffield Barbers, LLC must also retroactively
restore the preexisting terms and conditions of employment set
forth in the predecessor GME collective-bargaining agreement
with the NBA unit for the period from Sheffield’s violation, ef-
fective April 28, 2017, until Sheffield and the NBA reach a new
agreement or come to impasse. Adams & Associates, Inc. v.
NLRB, 871 F.3d 358, 373 (5th Cir. 2017), enfg. 363 NLRB No.
193 (2016). A successor employer that unlawfully discriminates
to avoid a bargaining obligation is not free to set unilaterally in-
itial terms and conditions of employment. See generally Smith
& Johnson Construction Co., 324 NLRB 970, 970 (1997). Had
Sheffield acted lawfully in hiring the predecessor’s barber em-
ployees, it would have been free to set terms and conditions of
employment for the bargaining unit. Burns, 406 U.S. at 281–
283. By ignoring the CBA and the NBA prior offering and ac-
cepting employment of all the predecessor’s employees on April
28, 2017, Sheffield waived that right. Sheffield is ordered to re-
instate the status quo ante, to make NBA employees whole by
remitting the decreased commission rate of 12.2 percent as
missed commissions absent Sheffield’s unlawful conduct, until
it negotiates in good-faith to agreement or to impasse. This rem-
edy is necessary to prevent Sheffield from benefitting from its
unlawful conduct, including unlawfully ignoring the GME-NBA
CBA, and give the bargaining process a chance to work. U.S.
Marine Corp., 944 F.2d 1305, 1322–1323 (7th Cir. 1991); NLRB
v. Advanced Stretchforming Int’l, Inc., 233 F.3d 1176 (9th Cir.
2000), cert. denied 534 U.S. 948 (2001). Therefore, Sheffield is
ordered to recognize and, on request, bargain with the NBA as
the bargaining representative of the unit barber employees at
Nellis Air Force Base with respect to wages, hours, and other
terms and conditions of employment and, if an agreement is
reached, embody it in a signed document. Also see Carib Inn of
San Juan, 312 NLRB 1212, 1212 fn. 4 (1993), enfd. sub nom.
NLRB v. Horizons Hotel Corp., 49 F.3d 795 (1st Cir. 1995).
Respondent Sheffield shall also be required to rescind, on the
NBA’s request, any or all of the unilateral changes to the unit
employees’ terms and conditions of employment made on or af-
ter April 28, 2017, and to make unit employees whole for any
loss of earnings and other benefits attributable to its unlawful
conduct. Sheffield is entitled to receive a credit for paying the
unit employees the correct compensation rate of 45 percent from
August 28 to October 22, 2017. The Order shall not be construed
as requiring or authorizing Respondent Sheffield to rescind any
improvements in the terms and conditions of employment unless
requested to do so by the NBA. The make-whole remedy shall
be computed in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010).
Respondent Sheffield shall be ordered to compensate affected
employees for any adverse tax consequences of receiving a
lump-sum backpay award. Respondent Sheffield shall file a re-
port with the Regional Director of Region 28, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar years for each employee.
Having concluded that the Respondent is responsible for the
unlawful discharge of employee UnChong Thrower, the Re-
spondent must offer her immediate reinstatement to her former
job, or if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights
and privileges previously enjoyed. I also order that Respondent
make UnChong Thrower whole, with interest, for any loss of
earnings and other benefits that she may have suffered as a result
of the discrimination against her. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Also, Respondent must
compensate UnChong Thrower for her search-for-work and in-
terim employment expenses regardless of whether those ex-
penses exceed her interim earnings. King Soopers, Inc., 364
NLRB No. 93, slip op. at 9 (2016). Search-for-work and interim
employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Ho-
rizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. In addition, the Respondent shall com-
pensate UnChong Thrower for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file a report
with the Social Security Administration allocating the backpay
award to the appropriate calendar quarters for her. Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). The
Respondent shall also be required to expunge from its files any
and all references to the written warning, suspension, and dis-
charge, and to notify UnChong Thrower in writing that this has
been done and that none of these unlawful disciplines will be
used against her in any way.
Respondent shall also rescind or revise its unlawful rules as
set forth above. The Respondent shall also post the notice in
accord with J. Picini Flooring, 356 NLRB 11, 15–16 (2010). In
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
accordance with J. Picini Flooring, the question as to whether an
electronic notice is appropriate should be resolved at the compli-
ance phase. Id. at 13.
On these findings of fact, conclusions of law, and upon the
entire record, pursuant to Section 10(c) of the Act, I hereby issue
the following recommended116
ORDER
Having found that Respondent Sheffield Barbers, LLC. has
engaged in certain unfair labor practices, I will order that they
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Respondent Sheffield Bar-
bers, LLC., its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with The
Nellis Barbers Association (NBA), as the exclusive collective-
bargaining representative of the employees in the following ap-
propriate unit:
All barbers except the base manager, supervisors, and other
employees excluded under the terms of the National Labor Re-
lations Act.
(b) Unilaterally changing wages, hours, and other conditions
of employment without bargaining about these changes with the
NBA.
(c) Changing the terms and conditions of employment of the
unit employees without first notifying the NBA and giving it an
opportunity to bargain.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(e) Unlawfully promulgating and maintaining work rules in
retaliation of other employee’s protected concerted activities;
(f) Unlawfully discharging or otherwise discriminating
against Respondent’s employees because they openly discuss
Respondent’s new work rules related to compensation after work
hours and any other terms and conditions of employment; and
(g) Engaging in surveillance of its employees’ union activi-
ties.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain with the NBA as the exclusive collec-
tive-bargaining representative of the employees in the following
appropriate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
INCLUDED: All barbers at Nellis Air Force Base employed
by the Employer.
116 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
117 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
EXCLUDED: All base manager, supervisors, and other em-
ployees excluded under the terms of the National Labor Rela-
tions Act.
(b) Notify the NBA in writing of all changes made to the unit
employees’ terms and conditions of employment on or after
April 28, 2017, and, on request of the NBA, rescind any or all
unlawfully imposed changes and restore terms and conditions of
employment retroactively to April 28, 2017, with a credit for the
proper 45 percent commission rate paid from August 28, 2017,
to October 22, 2017.
(c) Make the unit employees whole for any losses sustained
due to the unlawfully imposed changes in wages, hours, benefits
and other terms and conditions of employment set forth in the
Remedy section of this decision.
(d) Compensate the unit employees for any adverse income
tax consequences of receiving their backpay in one lump sum,
and file with the Regional Director for Region 28, within 21 days
of the date the amount of back pay is fixed, either by agreement
or Board order, a report allocating the back pay award to the ap-
propriate calendar year(s).
(e) Within 14 days from the date of this Order, offer employee
UnChong Thrower immediate and full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(f) Make employee UnChong Thrower whole for any loss of
earnings and other benefits suffered as a result of the discrimina-
tion against her, as set forth in the remedy section of this deci-
sion.
(g) Compensate employee UnChong Thrower for the adverse
tax consequences, if any, of receiving a lump-sum backpay
award, and submit the appropriate report to the Social Security
Administration so that when backpay is paid to Thrower, it will
be allocated to the appropriate calendar quarters.
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge, and within 3
days thereafter, notify employee Thrower in writing that this has
been done and that the loss of employment will not be used
against her in any way.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(j) Within 14 days from the date of this order, post at its fa-
cilities in and around Nellis Air Force Base Barbershop, copies
of the attached notice marked “Appendix.”117 Copies of the no-
tice, on forms provided by the Regional Director for Region 28,
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.”
SHEFFIELD BARBERS, LLC 21
after being signed by the Respondent’s authorized representa-
tive, shall also be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
addition to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Re-
spondent at any time since April 28, 2017.
(k) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. August 27, 2018