APOGEE RETAIL, NY, LLC D/B/A UNIQUE THRIFT STORE

National Labor Relations Board - Administrative Judge Opinions

Jul 30, 2015

02-CA-133989 (N.L.R.B. Jul. 30, 2015)

JD(NY)–31–15
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
APOGEE RETAIL, NY, LLC d/b/a
UNIQUE THRIFT STORE
And Case 02-CA-133989
02-CA-134059
LOCAL 338, RWDSU/UFCW 02-CA-137166
Moriah H. Berger Esq., Counsel for the
General Counsel
Lewis Goldberg Esq. and Josh
Beldner Esq., Counsel for the Respondent
Jae W. Chun Esq. and William Anspach Esq.,
Counsel for the Union
Decision
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case on March 31 to April 6,
2015 in New York, New York. The charges and amended charges in this proceeding were filed
on August 4, 5, September 19, November 19 and December 4, 2014. The Complaint which
issued on January 30, 2015 alleged in substance:
1. That in or about April, mid-June and August 2014, the Respondent by Naomi Santana
aka Naomi Nazario and Sameh Mekhueil, told employees (a) that they had not received and
would not receive wage increases because they were represented by the Union (b) that if they
wanted raises they should find other jobs, and (c) that they would receive wage increases if they
rejected union representation.
2. That in or about mid-June 2014, the Respondent, by Mekhueil told employees that
employees should work elsewhere if they wanted higher wages.
3. That on or about August 8, 2014, the Respondent by a security guard engaged in
surveillance of employee union activity.
4. That during negotiations from July 9 through August 4, 2014, the Respondent sought
to avoid reaching an agreement by (a) refusing to explain its reasons why it would not agree to
the Union’s proposals for union security and dues checkoff clauses; (b) failing to respond to the
Union’s proposals dated July 24, 2014; and (c) by its overall conduct showing bad faith
bargaining.
At the hearing, the Respondent admitted that Naomi Santana was an agent within the
meaning of Section 2(13) of the Act. In this regard, the evidence showed that she was trained
JD(NY)–31–15
2
and authorized to speak on behalf of the Employer to answer employee questions regarding the
Union and/or wage increases.
On the entire record, 1 including my observation of the demeanor of the witnesses, and
after considering the briefs, I make the following 5
Findings and Conclusions
I. Jurisdiction
10
It is admitted and I find that the Respondent is an employer engaged in commerce within
the meaning of Section 2(1), (2), (6) and (7) of the Act. I also find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. The alleged unfair labor practices15
a. The negotiations and the alleged 8(a)(5) violation
The Respondent, which is based in Phoenix, Arizona, is owned by David Kloeber. It
operates 11 retail stores in the New York Metropolitan area that sell second hand clothing, 20
jewelry, accessories and furniture. One of the New York City managers is Dave Morley and the
store located in the Bronx, is run by Sameh Mekhueil. The head of security is Paul Dalton. The
Complaint alleged that Naomi Santana is a supervisor within the meaning of Section 2(11) of
the Act. Nevertheless, because the Respondent admits that she is its agent pursuant to Section
2(13), it is unnecessary to make a finding as to her supervisory status inasmuch as any 25
statements that she made to employees about the Union were authorized by the Company and
are binding on it.
Originally back in 2013, the RWDSU organized the employees of the Bronx store which
employs approximately 60 people in positions including production workers, maintenance 30
workers and cashiers. In April 2013, the RWDSU won a Board conducted election and was
certified. Thereafter, bargaining took place for several months between that labor organization
and the Employer.
In late 2013 or early 2014, the RWDSU decided to transfer its bargaining rights to Local 35
338 and a meeting was held with the Employer with the object of obtaining the Respondent’s
consent to the transfer. This was opposed and a charge was filed in Case No. 2-CA-104237.
That charge was thereafter resolved by a non-Board settlement dated March 28, 2014, wherein
the Respondent agreed to recognize and bargain with Local 338 for the previously certified
bargaining unit. 40
On April 25, 2014, the Respondent’s attorney, Stuart Weinberger, sent an email to Neil
Gonzalvo, Local 338’s chief negotiator, forwarding the previous contract proposals that had
been made by the Company and the RWDSU during the earlier negotiations.
45
On May 1, 2014, the first negotiation session was held between the Company and Local
338. At this meeting, the parties reviewed the previous contract proposals and Gonzalvo stated
that he would prepare and tender a new union contract proposal before the next meeting. To the
extent that there was any discussion of Article 3, which contained union security and dues

1 The General Counsel’s unopposed Motion to correct the transcript is granted.
JD(NY)–31–15
3
checkoff clauses, Weinberger indicated that the earlier RWDSU proposal was illegal because it
did not give employees the full 31 days before having to become a union member. Gonzalvo
stated that he would prepare an alternative Article 3.
On May 21, 2014, Gonzalvo had a lengthy phone conversation during which he emailed 5
a series of contract proposals, not including a new union security and dues checkoff provision.
By email dated June 17, Gonzalvo sent a contract proposal containing a revised Article
3. This consisted of four paragraphs as follows:
10
1. A standard union security language but with 90 days to join from the effective
date or the execution date of the contract which is later.
2. A union dues checkoff provision whereby upon receipt of written
authorizations, the Employer would deduct union dues/fees from the wages of its
bargaining unit employees. 15
3. An agreement whereby the Employer agreed to deduct contributions to a
Political Action Committee from those employees who voluntarily authorized such
deductions.
4. A provision that permits the Company to hire whoever it wants.
20
The proffered contract also contained a wage proposal that called for a $1 per hour
increase during the first year of the contract for employees who completed a trial period; a $1
per hour raise for the second year of the contract; and a $1 per hour raise for the third year of
the contract.
25
On June 26, 2014, the negotiators met at the office of the Union’s counsel. This meeting
was held with Gonzalvo being the chief negotiator for the Union and Weinberger and company
owner Kloeber representing the Employer.
During the June 26 meeting, Mr. Kloeber questioned Gonzalvo as to what exactly a 30
union security clause would require. After Weinberger explained that a union security clause
requires, as a condition of continued employment, union membership after the stated time,
Kloeber raised a number of questions. One issue was whether the Company could be sued if it
was forced to discharge an employee who failed to pay union dues.2 There were other issues
raised by Kloeber including his observation that many of his employees were paid the minimum 35
wage and even with a wage increase many, if they had dues deducted from their wages, would
still be earning at or below the minimum wage. 3 Additionally, Weinberger stated that in his view
the Political Action Committee provision might violate New York State law. The unrebutted

2 Indeed, an employer can be held liable in some situations where it accedes to a union’s
request for an employee’s discharge pursuant to a union security clause. For example, if a
union claims dues for time when an employee is not employed by the employer, a union and the
employer could be jointly and severally liable for the discharge of an employee who hadn’t paid
dues during his period of absence.
3 Union dues for full time employees were $38 per month. It was somewhat less for part
timers. As of the June 26 meeting, the parties had agreed to a 24 cent per hour raise for first
year of a contract and this would have amounted to a $40 per month increase for an employee
who worked 40 hours per week. Thus, a net gain of $2 per month. It would also mean that for
those employees who worked overtime, they would have a larger net gain. However, for
employees who worked 32 to 40 hours per week, they would have incurred a net loss if they
had to pay union dues.
JD(NY)–31–15
4
testimony was that Gonzalvo replied that these were great questions and that he would get back
to them. He didn’t.
On June 27, 2014 an employee named Ramon Steffani filed a petition in 2-RD-131679
seeking to decertify the Union. Thereafter, the Acting Regional Director approved a Stipulated 5
Election Agreement on July 11, 2014. The election was scheduled for August 8, 2014 between
the hours of 11:00 a.m. and 2:00 p.m.
On July 9, Gonzalvo sent a modified contract proposal to Weinberger. This did not
contain any modification of the previously tendered union security and dues checkoff provisions. 10
(Article 3) In this proposal, the Union asked for a 75 cent per hour increase for the first year and
a 25 cent per hour increase for the second and third years of a contract.
The parties met again on July 9 at the offices of the Union’s attorney. Attending for the
Company were Kloeber, Weinberger and Annette Aletor, an associate in Weinberger’s office. 15
Attending for the Union were Gonzalvo, Yomaira Franqui and the Union’s attorney, William
Anspath. After reviewing the various contract proposals, Gonzalvo asked if the Company was
going to agree to the union security proposals. Weinberger said that the Company would not
agree at that time. When Anspach pressed Weinberger as to why the Company would not
agree, Weinberger responded that he did not have to agree. Not much else was said at this 20
meeting and there was no discussion by either side about the various questions or issues that
had been raised by Kloeber at the June 26 meeting.
On July 17, Gonzalvo sent another modified contract proposal which although modifying
certain issues, did not modify the Union’s proposed union security and dues checkoff provisions 25
in Article 3. However, Gonzalvo did indicate that the section of Article 3 relating to political
action contributions was open. Shortly thereafter, Weinberger replied that he would review the
proposal and respond the following day.
Notwithstanding Weinberger’s statement that he would respond by July 18, he didn’t find 30
the time to do so and Anspach called him on July 22. During that call, Weinberger expressed
concern that the political action section of Article 3 could violate New York law.
On July 23, Weinberger emailed a contract proposal with some minor modifications but
rejecting all of Article 3. 35
On July 24, Gonzalvo and Anspach held a conference call with Weinberger. During this
call, Anspach stated that the Union was agreeing to the Company’s version of certain proposals
but that the Union wanted to include the previously tendered union security and dues checkoff
clauses as they appeared in the Union’s contract proposal. Weinberger responded that he 40
would speak to Kloeber.
On Friday, July 25, after speaking to Kloeber, Weinberger sent an email to Anspach in
which he stated:
45
I want to talk to Dave regarding what we discussed yesterday. However, I want to
be clear on what was proposed and what was not proposed. You stated that it
was a package. Can you or Neil indicate the changes that the union would agree
to in the document that I sent you. It will only take a few minutes to do so. There
are a couple of other issues to deal with. First, I will discuss with the company 50
JD(NY)–31–15
5
language on part-timers. Second I will discuss the union security clause with the
company.
It should be noted that by July 25, the Union had conceded and agreed on all open
issues, except for the Union security and checkoff clauses, and the parties had agreed to a 5
series of small wage increases. As to the part-timer question, this was not really an issue
because the parties had agreed on the concept but had not yet put it into appropriate language.
Anspach expressed the opinion that as there was agreement on all open issues except
for Article 3, there was no need for the Union to give a written response, as requested by 10
Weinberger. But lawyers act like lawyers, and I see nothing nefarious in Weinberger’s request
for a written document nailing down what had been agreed to. In any event, Weinberger’s email
was sent at 4:52 p.m. and Anspach may have received it either on that Friday or on the
following Monday, July 28.
15
On July 28, Anspach sent an email to Weinberger detailing nine items where the Union
had agreed to the Company’s proposals. This email also withdrew that portion of Article 3
relating to the political action fund, This, therefore made it explicit that from the Union’s point of
view, the only remaining open issue was Article 3 insofar as the union security and dues
checkoff provisions. 20
Weinberger and Kloeber testified that when this last email was sent to Kloeber, he told
Weinberger that they still had not gotten any answers to the issues raised at the June 26
meeting and that these should be resolved. Kloeber testified that he was particularly concerned
that given the agreed upon wage increases, some employees would be earning less than the 25
minimum wage if they were required to pay union dues.
Between July 28 and July 30, Anspach and Weinberger exchanged some emails
discussing who was at fault for not responding quickly. In the context of this case, this is not
relevant. 30
On July 30, at 8:44 a.m. Anspach sent an email to Weinberger that stated:
As of last Thursday, we made it clear that there are no remaining
issues other than the Union Security/Checkoff, (you can provide 35
language on the part-timers, but we’ve already agreed to accept
your current policy).
Now nearly a week later, we still need to know your client’s position
on the Union Security/Checkoff. I have yet to hear any reason for 40
your client to reject those, particularly since we don’t live in
Alabama.
On July 30 at 11:39 p.m., Weinberger responded:
45
As I am sure that the Union is aware, there are contracts with
unions that do not have dues-check off. I think the Union is aware
that many employers do not wish to get involved in the check-off of
dues for many reasons, including but not limited to, that they do not
want to [be] responsible from checking off dues and the issues that 50
arise with checking off the dues.
JD(NY)–31–15
6
While the union security provision is a mandatory subject of
bargaining, the NLRB as recently as 2013 said the employer is not
required to agree to a union security provision that is proposed by
the Union. The ALJ in that case held that “[A]n employer may insist 5
on not having a union-security clause at all..”. Your statement that
New York is not Alabama does not mean there are not contracts
with unions that do not have a union security clause as proposed by
the Union. I am sure that the Union is aware of the reasons why
employers have not agreed to union security clauses that have 10
been proposed by the Union.
In any event, the Company is willing to bargain with the Union and
discuss these provisions in accordance with applicable law.
15
On July 31 at 8:38 a.m., Anspach sent an email to Weinberger which stated:
Since we’re down to one issue, (Union Security/Union Checkoff), we’d like to
schedule a conference call today with you and your client to try to resolve it.
Please indicate your availability. Thank you. 20
Weinberger replied at 11:50 that; “I am in Cherry Hill New Jersey now negotiating a
contract. I am not available today for a conference call.” To this, Anspach asked if Weinberger
would be available on August 1. At 8:30 p.m. Weinberger replied:
25
I have a meeting tomorrow on LI [Long Island] in the morning and possibly
Yonkers in the early afternoon. I can try to squeeze something in tomorrow. The
Company also has to be present on the call.
If you have any suggestions about arranging something for tomorrow, please e-30
mail them to me. We can also make arrangements to talk next week.
At 9:11 p.m., Anspach responded and stated that the Union would be available at any
time on August 1.
35
On August 1 at 5:48 p.m. Anspach sent the following email to Weinberger:
I never heard back from you (see email exchange below).
As a courtesy, I wanted to tell you that the Union has filed a ULP against Unique 40
for bad faith bargaining. The Union essentially agreed to all of the Employer’s
proposals on July 24 – since then, the Employer has used the pretext of
opposition to a Union Security/Checkoff provision in order to avoid reaching an
agreement with the obvious purpose of running out the clock until the election.
45
While you point to case law reflecting that an employer is not always required to
accept Union Security clause, I believe the Board will consider the overall
framework and chronology of the negotiations to conclude that the Employer’s
position is without foundation.
50
JD(NY)–31–15
7
We will document to the Board that your client’s bad faith bargaining has caused
a decline in support for the Union leading up to the election.
Nonetheless, we remain available to bargain should your client have a change of
heart. 5
At 6:56 p.m. on the same day, Weinberger sent an email to Anspach stating:
When I said last night I would try to squeeze in time I meant some solution like
a call-in number. It is a sign that we are ready to bargain. We are ready to 10
bargain. The Company has been and is ready to bargain. However, bargaining
doesn’t mean that we have to agree to everything the Union wants. That is not
bargaining.
I think filing the charge is a pretext to force the company to agree to a union 15
security and a check-off provision and to delay the election. As I noted, there are
union contracts without dues check-off. There are contracts without the union
security provisions proposed by the Union. There is no case that says that the
Board can force a party to agree to language that it does not want to agree to
and has not agreed to. 20
Moreover, to say that the Company has not bargained in good faith is incredible.
There have been dozens of discussions and meetings that the parties have had
as well as agreements on issues including wages, medical, just cause for a
discharge, grievance and arbitration, etc.25
The Company is not going to respond to the Union’s allegations about the
running out the clock stuff, etc. If you want to bargain, the Union can call. The
Union has my office and cell phone number. If you want to call my cell phone
tonight, we can arrange for a time to bargain, which could be even tonight. 30
On August 2 at 11:27 a.m., Anspach sent the following email to Weinberger:
It’s silly to say that the Union wants the Employer to agree to everything desired
by the Union. Quite to the contrary – the Union has made a vast number of 35
concessions in order to try to reach an agreement.
You’re right that there’s case law saying one party can’t force another party to
accept a proposal. But there’s also abundant case law reflecting that one party
can’t turn down a proposal for no reason, particularly where there is the only 40
remaining item.
As for the mechanics of bargaining, we made a package proposal on July 24.
You said that day you would speak with your client and get back to us. You
then asked us, unnecessarily in our view, to reiterate the package proposal, 45
which we did. But we still never heard back from you.
If you wish to bargain, you can let us know when you and your client are
available. Otherwise, we will continue to prosecute the charge.
50
JD(NY)–31–15
8
On Sunday, August 3 at 23:29 p.m., Weinberger sent another email to Anspach which
stated:
I believe that you’re e-mail has several statements that are fundamentally
incorrect. First, you keep saying that the Company has rejected the clauses for 5
no reason. That is not true. I think my e-mail the other day outlined reasons. If
not, we are certainly willing to bargain and discuss these issues. I have e-mailed
you several times in the last week that the Company is willing to bargain and talk
about this.
10
Second, the Company has not summarily turned down these proposals. The
Company is willing to discuss alternatives to the language proposed by the
Union. The Union apparently does not want to discuss alternatives.
Third, within a matter of a couple of days or if not immediately, the Company has 15
responded to all of the Union’s proposal.
Fourth, I will repeat what I said above, the Company will bargain and discuss the
issues with the union. It is Sunday, but I will try to contact the Company and see
when we can talk. If the Union wants to present other alternatives, please send 20
me the alternatives.
On Monday, August 4, 2014, at 2:38, the following email was sent by Weinberger to
Anspach:
25
We can have a conference later today. Otherwise we can make arrangements to
talk tomorrow or another day.
On Monday, August 4 at 2:58 p.m., Anspach emailed Weinberger asking when he and
his client were available “today” and that he would check with the Union as to its availability. At 30
3:28, Weinberger emailed to say that he and the Company were available to talk by phone,
between the hours of 4:00 p.m. and 5:00 p.m. Anspach replied that the Union was not available
at that time and that he would check to see when they would be available.
On August 8 an election held by the Board’s Regional Office and the ballots were 35
impounded.
Subsequent to August 4, there were no further communications between the Union and
the Employer. In this regard, Anspach testified that he felt, given the circumstances, that further
communications by the Union would be futile and that it would now be up to the NLRB to 40
resolve the bargaining issues.
(b) Other alleged violations
In substance, the remaining allegations relate to conversations between Store Manager, 45
Sameh Mekhueil and/or Naomi Santana with a number of employees in which it is alleged (a)
that they had not received and would not receive wage increases because they were
represented by the Union; (b) that if they wanted raises they should find other jobs; and (c) that
they would receive wage increases if they rejected union representation. Additionally, it is
alleged that a security guard who was at the Company’s premises during the election, engaged 50
in surveillance by following an employee and a union representative out to the parking lot.
JD(NY)–31–15
9
In support of the first three allegations, the General Counsel offered the testimony of four
employee witnesses; Abieo Ventura, Rosaura Tolentino, Jose Luis Tavira and Marlon Colon.
In relation to their testimony about statements regarding raises, I note that almost all of 5
the Company’s employees, except for leads or persons labeled as supervisors, (such as
Santana), received the minimum wage. To the extent that pay increases were given in the past,
the evidence shows that such raises were given only when the minimum wage was increased.
Rosaura Tolentino testified that the Company held a morning meeting each day where 10
announcements were made to the employees by Sameh Mekhueil which were then translated
by Naomi Santana for the Spanish speaking employees. She states that sometime in July 2014,
at a morning meeting, Santana said that Dave Kloeber, (the owner), was not going to give a
raise and that although he had it ready to give it to us, he wasn’t going to give it because of the
Union. 15
According to Tolentino there was another occasion when, in a group of about 10 other
employees, Santana was asked about raises and vacations and she responded that because of
the Union, they were frozen; “that a long time would pass before they would give us a raise.”
Tolentino testified that on this occasion, Santana said, in effect, that if the employees were 20
unhappy about their wages, they could find another job.
Finally, Tolentino testified that the store manager and Santana made statements over
the Company’s public address system to the effect that raises were frozen.
25
On cross examination, Tolentino testified that when Santana spoke about raises, she
said that “it had to do with the Union and negotiations,” and that she didn’t know how long it was
going to take to finish bargaining.
With respect to this person’s testimony, I note that although there was testimony by 30
other witnesses about the subject of raises and negotiations, none corroborated Tolentino’s
testimony that these statements were made at the morning meetings or over the public address
system. Also, no one corroborated her testimony that they were told that employees could look
for jobs elsewhere.
35
Abieo Ventura testified that in August, but before the August 8 election, Santana called
him over for a private conversation and stated that when the Union wasn’t there, the people
were receiving raises and that the only reason why “we” were not getting raises was because
the Union was in place. He testified that she stated that the Union was no good and that if the
Union wasn’t in place, they would be back to the old system where everyone got raises 40
depending on the amount of work put out. According to Ventura, Santana was a bit irate
because she wasn’t able to receive raises. He testified that she said that once the Union wasn’t
in place, everyone would be receiving raises. Ventura also testified that he had another similar
conversation with Santana, but could not recall when that occurred.
45
On cross examination, Ventura stated that during the August conversation, Santana
mentioned that the Company and the Union were engaged in negotiations and that when
negotiations were over, the employees would likely be getting raises. He also testified that he
never heard either Sameh Mekhueil or Naomi Santana make statements about raises at the
morning meetings or over the public address system. 50
JD(NY)–31–15
10
Jose Luis Tavira testified that on one occasion in May 2014, Santana told him that “they”
can’t give us more money because everything was “like freezing for the union.” After a little
leading, Tavira recalled that when he was hired he was told that the Company gave raises every
three months and that Santana told him that; “for the union, everything is frozen.” At a later
point, Tavira recalled that in the context of the frozen statements, Santana used the word, 5
“negotiate.” (As noted above, the only time production employees got raises was when the
minimum wage was increased either at the Federal or State level. Therefore, an alleged
statement that the Company gave raises every three months, is inaccurate.)
According to Tavira, he attended the morning meetings and that on one occasion, in 10
response to his question, Santana said that that union dues were $50 per month. Tavira testified
that when he told Santana that this was a lot of money, Santana replied; “okay, so then vote
no.” Other than reporting the statement about union dues, Tavira did not indicate that
Sameh Mekhueil or Naomi Santana made statements about raises at the morning meetings or
over the public address system.15
Marlon Colon testified that in late July or early August, he was riding on bus after work
with Santana and another employee named Sheniqua McNeil. According to Colon, Santana
stated that his vote was needed because if he voted against the Union, “we” would be getting
our raises. He states that Santana said that before the Union, the employees got quarterly 20
raises and that the only reason they were not getting a raise was because the Company was
negotiating with the Union.
Santana and Mekhueil both denied all of the alleged threats and promises attributed to
them by the General Counsel’s witnesses. Both testified that they received instructions from a 25
consultant named Mike Rosado and attorney Goldberg about what they could and could not say
to employees regarding wages, raises or benefits. They testified that after bargaining began,
they were instructed to respond to any employee questions about wages or benefits by stating
that the Company and the Union were engaged in bargaining and that they couldn’t say
anything until an agreement was reached. Santana and Mekhueil testified that when asked 30
about wages or raises, they simply responded that they could not talk about that subject
because of the ongoing negotiations.
In support of the testimony of Santana and Mekhueil, the Company called a number of
employee witnesses who corroborated their version of events. These employees essentially 35
testified that there were no comments about wages or raises at the morning meetings and that
no such comments were made over the public address system. I conclude that no such
statements were made in that manner.
Kirsey Gonzalez, an employee called by the Respondent, testified that on one occasion 40
she asked Santana about a wage increase and that Santana replied that everything was in
negotiations and that she could not talk about it. This testimony was consistent with the
testimony of those General Counsel witnesses who testified that during their conversations with
Santana, the latter mentioned negotiations and/or that things were frozen during negotiations.
45
With respect to the alleged conversation between Marlon Colon and Santana on the bus,
Santana credibly testified that during this conversation, Colon spoke about his personal issues
and that she solicited him to join a church where she was a minister. She denied that there was
any talk about unions, wages or wage increases. Santana’s accounting of this event was
corroborated by Sheniqua McNeil, an employee who attends the same church. 50
JD(NY)–31–15
11
The bottom line is that the credible evidence shows that at most, Santana, on perhaps
one or more occasions, told employees that because the Union and the Company were in
contract negotiations, wages were frozen because of those negotiations. I can see how some
employees could have construed or interpreted such statements as meaning that no raises
would be given because of the Union; or that raises would be given once the Union was out; or 5
that one should look for another job if you wanted a raise. But what some people may have
inferred from Santana’s remarks is not necessarily the same as what she actually said. I cannot
be absolutely certain as to what Santana said to these employees, but I think it is more probable
that she merely followed orders and told them that wages were frozen and that she could not
say anything else about the matter because the Company and the Union were in the middle of 10
negotiations.
Except for situations where wage increases, (or other increased benefits), had been
planned before the advent of a union, or where wage increases have historically been granted
on a regular and periodic basis, an employer need not give increases during contract 15
negotiations and may defer them to any collective bargaining agreement subsequently made.
Accordingly, any statements to employees to the effect that wages are frozen pending the
outcome of negotiations is simply a statement of what is permissible under the Act and as such
cannot violate Section 8(a)(1) of the Act.
20
The General Counsel also alleges that the Respondent engaged in surveillance by virtue
of the following transaction.
Yomaira Franqui, a union representative, was assigned to go the election that was held
on August 8, 2014. Among other things, she was there to give instructions to the Union’s 25
designated observer, Antonio Trinidad, and to give him a list of persons whose ballots the Union
intended to challenge.
For the election, the Company decided to hire an additional contingent of security
officers who would monitor the outside of the building during the election. This was done by the 30
Company’s security director, Paul Dalton. Dalton testified that for his part, he mainly stayed
inside the building and directed people to the voting area. He also testified that from time to
time, he went outside to see what was going on with the additional security guards. In addition
to the main building, the Company has an adjacent parking lot that is separated from the
sidewalk and street by a fence. 35
Franqui testified that after the election was over, she and Trinidad went outside to her
car that was in the middle of the parking lot. She testified that Dalton, (whose name she didn’t
know at the time), followed them along the sidewalk and observed her and Trinidad from about
ten to fifteen feet away. According to Franqui, Dalton paced back and forth while seemingly 40
talking on his phone. Mr. Trinidad did not testify and therefore he did not corroborate Franqui’s
testimony on this matter.
Dalton credibly denied that he followed Franqui and Trinidad out to the parking lot and
testified that when the election was over, he stayed at the front door and watched people leave. 45
According to Dalton, he left the building at around 3:00 p.m., got into his car, and went home.
In my opinion, the General Counsel’s evidence as to this single transaction, allegedly
occurring after the election was over, is insufficient to support the allegation that the Company
was engaged in spying on employee union activity. In this instance, I am going to credit 50
Dalton’s testimony which shows that at most, Franqui may have misconstrued Dalton’s walk to
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his car as being a case where he was following her and Trinidad to the parking lot in order to
spy on them.
(c) Analysis
5
Having decided the various 8(a)(1) allegations, I shall now turn to the General Counsel’s
theory regarding the allegation that the Respondent bargained in bad faith.
Section 8(d) of the Act ‘‘does not compel either party to agree to a proposal or require
the making of a concession.’’ If a term ‘‘is genuinely and sincerely held, if it is not mere window 10
dressing, it may be maintained forever though it produces a stalemate.’’ NLRB v. Herman
Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960). ‘Nevertheless, the statutory right to refuse to
agree or to make a concession, may not be used ‘as a cloak . . . to conceal a purposeful
strategy to make bargaining futile or fail.’’’ H. K. Porter Co., 153 NLRB 1370, 1372 (1965). ‘‘Bad
faith is prohibited though done with sophistication and finesse. . . . [Good-faith bargaining] takes 15
more than mere ‘surface bargaining’ or ‘shadow boxing to a draw.’’’ Id. at 232. ‘‘It is necessary
to scrutinize an employer’s overall conduct to determine whether it has bargained in good faith.’’
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). “
In NLRB v. American National Insurance, 343 U.S. 395, 404, the Supreme Court held 20
that the Board “may not, either directly or indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective bargaining agreements.” Notwithstanding that
prohibition, the Board has, on rare occasion, considered the contents of contract proposals in
order to determine whether an employer, (or a union), has engaged in surface bargaining.
McClatchy Newspapers, 131 F.3d at 1034, citing NLRB v. Pacific Grinding Wheel Co., 572 F.2d 25
1343, 1348 (9th Cir. 1978)
It is the General Counsel’s contention that; “by outright rejecting the Union’s proposal on
union security and dues check-off, without explanation, Respondent frustrated the collective
bargaining process and thereby bargained in bad faith…” The 8(a)(5) allegation is based on this 30
single issue and the evidence shows that with the exception of this one issue, the parties
reached agreement on all of the other subjects.
In support of this contention, the General Counsel relies heavily on CJC Holdings, Inc.,
320 NLRB 1041, 1046 (1996). In that case, the Administrative Law Judge found that the 35
Company illegally implemented its last offer in the absence of a valid impasse. Additionally, he
concluded that the Company violated the Act by making unilateral changes during contract
negotiations. Finally, the judge concluded that the Company engaged in surface bargaining by,
among other things, asserting that it had “philosophical” objections to a dues-checkoff provision
and objected to being in the dues collection business. The judge opined that these were not 40
legitimate reasons for refusing to agree to such a provision and constituted evidence of bad
faith. At footnote 2 of the Board decision, Member Cohen, although agreeing that the
Company’s “primary goal was to avoid agreement and reach impasse,” stated that he did “not
rely on the judge’s finding that a company’s fundamental opposition to dues check off, on policy
grounds, is not a legitimate reason for opposing such a contract provision.”45
In other cases, the Board or ALJs have offered the opinion that a “philosophical
opposition” to dues-check off provisions may constitute evidence of bad-faith bargaining. See
for example, Langston Cos., 304 NLRB 1022, 1050 (1991), citing Tiffany & Co., 268 NLRB 647,
650 (1984). Nevertheless, those cases involved other unlawful conduct in which opposition to a 50
union-security or dues-checkoff provision was only a small part of the evidence taken as a
JD(NY)–31–15
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whole. For example, in Langston Cos., supra, the Board concluded that the employer (a)
refused to negotiate at all until certain unfair labor practice allegations were resolved; (b)
bypassed the Union and dealt directly with employees; (c) unlawfully implemented changes to
its insurance plan in the absence of an impasse; (d) engaged in surface bargaining with no
intent of reaching an agreement; and (e) unlawfully discriminated against employees because of 5
their union activities.
In Preterm, Inc., 240 NLRB 654, 673 (1979), an employer refused to consider any union-
security provision, and asserted that it believed its employees should have the right to choose
whether to join. Finding that the Employer refused to consider any alternative proposal, (such as 10
an agency shop clause), and concluding that the Respondent went into negotiations with a fixed
mind on this issue, the judge held that the “Respondent’s refusal to discuss union shop or any
modified form thereof, based upon its alleged ‘philosophical opposition’ thereto constitutes
evidence of a refusal to ‘confer in good faith’ within the meaning of the Act.” Nevertheless, the
judge’s conclusion that the Respondent engaged in surface bargaining was also based on other 15
conduct, including the Respondent’s attempt to exclude from the bargaining unit, certain
categories of employees that were in the unit by virtue of the certification of representative. The
Board affirmed the judge’s conclusion that the Respondent’s ultimate goal was not to reach an
agreement but to free itself of the need to deal with the union. It is also noted that in addition to
concluding that the Company engaged in surface bargaining, the judge found that the 20
Respondent illegally threatening employees with job loss.
In Phelps Dodge Specialty Copper Products Co., 337 NLRB 445 (2002), the Board
affirmed the ALJ’s decision that an employer’s refusal to agree to union security and dues
checkoff proposals did not violate the Act. The judge stated: 25
This case presents the allegation that the Respondent refused to bargain
about union-security and dues-checkoff provisions in the absence of any other
bargaining misconduct. The General Counsel wants the Board to conclude,
not only that the Company’s negotiation positions on these two issues may 30
constitute evidence of bad-faith bargaining, but that such positions constitute,
by themselves, a violation of the Act. I do not agree.
The evidence here indicates that the Respondent engaged in good faith
bargaining in all other respects and made concessions during negotiations on 35
wages and other matters. The Respondent’s position with respect to union-
security and dues-checkoff clauses cannot, in my opinion, be considered
irrational and it took the time during negotiations to explain its positions. Given
the fact that these issues are mandatory subjects of bargaining, neither side
can be compelled to agree to the other’s position or to even make concessions 40
in its own position. Moreover, there was evidence that some bargaining unit
employees, such as those accreted to the unit during the preceding contract
term, raised some objections to joining this Union and made their feelings
known to management.
45
The General Counsel would argue that the present case is distinguishable from Phelps
Dodge because here the Respondent basically stated that its reason for refusing to accept the
Union’s union security/dues checkoff proposal was simply because it didn’t have to. Assuming
that this was the only thing that was said by the Employer, it would still be a reason, albeit not
much of a reasoned reason. On the other hand, I know of no other type of mandatory subject 50
contract proposal that would require, as a matter of law, that the proposal’s opponent justify or
JD(NY)–31–15
14
offer a reason for its opposition. For example, an employer refusing to accede to a union’s
proposal for a percentage wage increase need not state its reasons for refusing the union’s
demand. Since the issues of union dues and dues checkoff are mandatory subjects of
bargaining, I can see no difference between these particular subjects and any other mandatory
subjects of bargaining. 5
In St George Warehouse, Inc., 341 NLRB 904 (2004) the Board made the following
comments at footnote 10.
In finding that the Respondent’s rejection of a union-security clause was 10
evidence of surface bargaining, the judge cited Bryant & Stratton Business
Institute, 321 NLRB 1007, 1043 (1996). In Bryant & Stratton, however, the Board
expressly declined to adopt the judge’s analysis of that issue. See 321 NLRB
1007 fn. 4. Our colleague’s reliance on Hospitality Motor Inn, Inc., 249 NLRB
1036 (1980), enfd., 667 F.2d 562 (6th Cir. 1982), cert. denied 459 U.S. 969 15
(1982), to support the same point is also unavailing. In Hospitality Motor Inn, the
employer’s “philosophical” opposition to a union-security clause was absolute
and obstructionist. There, the employer established that the Union’s request for a
union-security clause would preclude reaching an agreement, even if the parties
could reach resolution of all other issues. In addition, the employer stated that it 20
would not agree to a union-security clause, even if “100 percent of the
employees signed authorization cards.” Id. at 1039. Moreover, as the Board
stressed, the employer’s intransigent intent not to reach agreement on union-
security and dues-checkoff provisions was but one aspect of a “totality of
conduct” evincing a failure to bargain in good faith. Id. at 1036 fn. 1. In the 25
instant case, the Respondent’s opposition to the Union’s demand for a union-
security clause was tied to the specific facts of the instant case—the Union’s
narrow margin of victory—and was not presented as an obstacle to agreement
on other terms or an ultimate agreement.
30
Our colleague relies on Radisson Plaza as support for his view that the
Respondent’s reference, in explaining its opposition to the Union’s demand for
a union-security clause, to the Union’s margin of victory is evidence of bad faith.
However, Radisson Plaza is factually inapposite. There, the Board found the
employer’s reference to the election victory was frequent, it permeated the 35
employer’s bargaining proposal, and it did not involve a rejection of a union-
security clause. 307 NLRB 94, 96 (1992), enfd. 987 F.2d 1376 (8th Cir. 1992).
In the instant case, the reference to the Union’s narrow victory was only raised
as relevant to the Respond Respondent’s unwillingness to require all
employees to support the Union. 40
More recently, the Board revisited this issue in Universal Fuel, Inc., 358 NLRB No. 150
(2012). The Board stated:
We agree with the judge, for the reasons discussed in his decision, that the 45
Respondent, Universal Fuel, Inc., violated Section 8(a)(5) and (1) of the Act by
engaging in overall bad-faith bargaining with the Union. Thus, as the judge found,
in the course of initial contract negotiations, the Respondent:
JD(NY)–31–15
15
Opposed the Union’s proposal on union security for purely
“philosophical” reasons, without advancing any legitimate business
justification;
Late in negotiations, reneged on several tentative agreements previously 5
reached with the Union, and made regressive proposals concerning those
matters without good cause;
Also late in negotiations, introduced new and unpalatable proposals on
subcontracting and picketing without any legitimate business justification;10
Insisted on negotiating over a permissive bargaining subject, the
amount of fees to be paid under a proposed agency shop arrangement;
Withdrew its October 8 and November 6 contract proposals because the 15
Union had not accepted either in time for the proposal to be approved by
the United States government pursuant to the Service Contract Act of
1965; and
Falsely informed employees that union security was the only issue 20
preventing agreement, and cast blame on the Union.
As did the judge, we find that the Respondent’s conduct, viewed in its entirety,
indicates that the Respondent was bargaining without a sincere desire to
reach a collective-bargaining agreement. See, e.g., NLRB v. Reed & Prince 25
Mfg. Co., 118 F.2d 874, 885 (1st Cir. 1941), cert. denied 313 U.S. 595 (1941).
Unlike the judge, however, we find it unnecessary to determine whether any of
the individual acts just described was unlawful in and of itself. Instead, the
Respondent’s conduct, as a whole, supports the judge’s determination that the
Respondent was not bargaining in overall good faith and thereby constitutes a 30
violation of Section 8(a)(5).
In the present case, I think it cannot be said that the Respondent did not raise business
reasons for refusing to accede to the proposed union security/dues checkoff provisions. The
evidence shows that at the bargaining session held on June 26, 2014, the Company’s owner 35
raised a number or questions about these proposals. Most significantly, he noted that if the
parties agreed to the wage increase that was on the table, this would mean that if employees
were required to pay union dues, some would receive only a nominal increase in their pay and
others could receive a net pay below the State or Federal mandated minimum wage. The
evidence also shows that the Union’s representatives did not respond to the Respondent’s 40
concerns.
In my opinion, the evidence in this case shows that the parties bargained in good faith
and in fact, reached agreement on all subjects except for the union dues/checkoff provisions.
And although it might be said that on balance, the Employer got the better of the Union, the 45
Respondent did agree to a contact that would include some wage increases and a
grievance/arbitration procedure. It is therefore my opinion that the evidence cannot show that
the Employer was engaged in surface bargaining and that it had no intention of reaching an
agreement.
50
JD(NY)–31–15
16
Conclusion
For the reasons stated above, I conclude that the Complaint should be dismissed.
Dated: Washington, D.C. July 30, 20155
______________________
Raymond P. Green10
Administrative Law Judge