Embarq Corporation

National Labor Relations Board - Administrative Judge Opinions

Feb 13, 2009

28-CA-022019 (N.L.R.B. Feb. 13, 2009)

JD(SF)-10-09
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
EMBARQ CORPORATION
and Cases 28-CA-22019
28-CA-22020
28-CA-22070
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
UNION # 396, AFL-CIO
Joel C. Schochet, Esq., Las Vegas, NV, for
the General Counsel.
F.J. Morton, Esq., Las Vegas, NV, for
the Union.
Stanley E. Craven, Esq., and Julie E. Grimaldi, Esq.,
Overland Park, KS, for the Respondent.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Las Vegas, Nevada, on December 2, 3, and 4, 2008. This case was tried following the
issuance of a Consolidated Complaint and Notice of Hearing (the complaint) by the Regional
Director for Region 28 of the National Labor Relations Board (the Board) on September 30,
2008. The complaint was based on a number of original and amended unfair labor practice
charges, as captioned above, filed by International Brotherhood of Electrical Workers Local
Union # 396, AFL-CIO (the Union or the Charging Party). It alleges that Embarq Corporation
(the Employer or the Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). The Respondent filed a timely answer to the complaint denying the
commission of the alleged unfair labor practices.1
During the hearing, the Respondent and the Union entered into a non-Board settlement
agreement resolving the issues in dispute in Case 28-CA-22019. As a result of that settlement,
the Union requested permission to withdraw the charge it filed against the Respondent in Case
28-CA-22019. Counsel for the General Counsel offered no objection to the withdrawal, which I
then permitted. Further, counsel for the General Counsel moved to withdraw paragraphs 6, 7,
10, and 11 of the complaint, as the allegations found in those paragraphs were premised on the
withdrawn charge. I approved the unopposed motion and permitted the withdrawal of those

1 In its answer, the Respondent admits the various dates on which the enumerated original
and amended charges were filed by the Union and served on the Respondent as alleged in the
complaint.
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complaint paragraphs, which thereby removed the alleged Section 8(a)(3) violation and any
contention that the Respondent engaged in discriminatory conduct because of its employees’
union or protected concerted activity.
Also, during the hearing, counsel for the General Counsel filed a motion to amend the
complaint, to add certain new allegations as violations of Section 8(a)(1) and (5) of the Act.
(G.C. Ex. 1(o).) Counsel for the Respondent opposed the motion and denied the new
allegations. I granted the motion over counsel’s objection because I concluded that the new
allegations were closely related to certain of the existing complaint allegations as to time and
substance. Further, I concluded that the Respondent would not be prejudiced by such an
amendment, as I offered to grant the Respondent a continuance to prepare to rebut any
evidence proffered by the General Counsel in support of the new allegations.2
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based on the record, my consideration of the briefs filed by all
counsel, and my observation of the demeanor of the witnesses,3 I now make the following
findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The complaint alleges, the answer admits, and I find that the Respondent is a Delaware
corporation, with an office and place of business in Las Vegas, Nevada (herein called the
Respondent’s facility), where it has been engaged in the business of furnishing telephone
service. Further, I find that during the 12-month period ending July 11, 2008, the Respondent,
in the course and conduct of its business operations, derived gross revenues in excess of
$100,000; and that during the same period, the Respondent performed services valued in
excess of $50,000 in States other than the State of Nevada.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, and employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.

2 All pleadings reflect the complaint and answer as those documents were finally amended.
3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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III. Alleged Unfair Labor Practices
A. The Dispute
In essence, the dispute in this case involves the Respondent’s closure of a call center in
Las Vegas, Nevada, and the corresponding lay off of the customer solutions representatives
(the CSRs) employed at that call center. The General Counsel contends that the Respondent
was legally obligated to bargain with the Union, which represented the CSRs, over the decision
to close the call center and that by failing to do so, the Respondent was violating the Act.
Further, the complaint alleges that the Respondent unlawfully failed and refused to furnish the
Union with requested information, relevant and necessary for the Union’s performance of its
duty as the collective bargaining representative as it related to the Respondent’s decision to
close the call center and the effects of that decision.
In addition to the alleged failure and refusal to bargain with the Union over its decision to
close the call center, it is also alleged that the Respondent unlawfully failed and refused to
bargain with the Union over the effects of the closure on the bargaining unit employees. Finally,
the complaint was amended to allege that the Respondent unlawfully bypassed the Union and
engaged in direct dealing with employees by soliciting their relocation to another call center.
The Respondent admits that it did not submit its decision to close the Las Vegas call
center to the collective bargaining process, but argues that it was not legally required to do so,
under the controlling case law as established in First Maintenance v. NLRB, 452 U.S. 666
(1981); and Dubuque Packing Company, Inc., 303 NLRB 386 (1991). Further, the Respondent
defends its actions by contending that it was willing to engage in effects bargaining with the
Union, which it acknowledges that it was legally required to do, but rather that it was the Union
that failed and refused to do so.
Regarding its alleged failure to furnish the Union with requested information, the
Respondent admits that, for the most part, it refused to do so. However, it argues that as the
Union never indicated a relevant, legitimate reason for needing the information, the Respondent
was privileged to deny the request as it appeared to relate solely to the decision to close the
facility, which decision was not a mandatory subject of bargaining. As to the alleged direct
dealing with employees, the Respondent contends its supervisor’s informal comments about
other job opportunities constituted a harmless exchange, unrelated to the CSRs’ current terms
and conditions of employment. Allegedly, there was no wrongful intent in such an exchange,
and no erosion of the Union’s position as the collective bargaining representative.
B. The Facts
For the most part, the facts in this case are not in dispute. Since approximately 1954,
the Union has represented a unit of the Respondent’s employees, or that of the Respondent’s
predecessors, including Sprint of Nevada. Those employees include the customer solutions
representatives (the CSRs).4 The most recent collective bargaining agreement between the

4 In its answer to the complaint, the Respondent admits that the following employees of the
Respondent, herein called the Unit, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act: The Respondent’s Operator Services
and Clerical employees in the various departments as defined by the Act, as to the extent
certified by the National Labor Relations Board on November 2, 1945, in Case 28-RC-2644.
Further, the Respondent admits that based on Section 9(a) of the Act, that the Union has been
Continued
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parties is effective from March 15, 2006 through March 31, 2009. (Jt. Ex. 1.)
At the time of the events in question, the Las Vegas call center was one of two bilingual
(English/Spanish) call centers operated by the Respondent, with the other being a call center
located in Altamonte Springs, Florida. The CSRs were employed to receive and adjust
customer complaints over the telephone, while at the same time attempting to convince those
customers calling in for service to purchase additional products, such as satellite television and
high-speed internet. The CSRs were paid an hourly wage, as well as a commission based on
the additional products that they sold.5
From the uncontested evidence offered by the Respondent, it is obvious that the
Respondent’s business is in serious economic trouble. The Respondent operates a traditional
“land line” telephone system throughout various portions of the United States. This type of
telecommunications system is under severe economic competition from the newer “cellular”
telephone systems. Various documents admitted into evidence establish that the Respondent’s
total access lines fell from 4,730,907 in the third quarter of 2006 to 3,894,176 two years later.
(Res. Ex. 2, p.1.) Further, total call center calls received declined from 1,506,138 in January
2007 to 1,073,951 in June 2008. Calls to the two bilingual call centers declined similarly. (Res.
Ex. 3, pp. 1-2.) Based on the record evidence, it is clear to me that, as all economic trends are
lower, the prognosis for the Respondent’s economic future is not bright.
Cindy Andrus, manager of strategic planning, testified on behalf of the Respondent. Her
testimony was largely unrebutted. According to Andrus, at the time the Respondent was “spun
off” from Sprint in 2006 as a separate company, there were a total of 12 call centers located at
various points around the country. By the time of the hearing, there were only 8 remaining.
This was a deliberate effort by the Respondent to consolidate the small individual call centers
into fewer “mega-centers,” as part of its strategic plan to become more efficient. Andrus
testified that the decision as to where these mega-centers should be “strategically located” was
made based on geographical location, ideally in company owned buildings, as opposed to
leased buildings, where support staff for the CSRs was available, and near a pool of customers,
so as to be directly involved in the community. Untimely, the plan is to have even fewer of these
mega-centers, approximately five or six.
Because of the corresponding decline in the volume of Spanish language calls nation-
wide, a decision was made to reduce the number of bilingual call centers to one. Consideration
of which bilingual call center to close began as early as 2007. It was decided that the Las
Vegas call center would be closed and all calls nation-wide routed to the remaining bilingual call
center in Altamonte Springs, Florida. According to Andrus, Altamonte Springs was selected to
remain open because that call center was located in a company owned building with lots of
space to expand, unlike the Las Vegas call center, which was in a leased building. Further, at
the location in Altamonte Springs other classifications of Embarq employees were also housed,
giving all those employees greater opportunity for advancement. Andrus contends that this
arrangement is much more efficient, with approximately 80% of the new mega-center calls
being Spanish language calls (20% English), as compared to the mix of calls prior to the closure
_________________________
the exclusive collective bargaining representative of the employees in the Unit since at least
1954.
5 In addition to the CSRs, the bargaining unit also included call center coaches, who were
more experienced employees. However, at the time of the events in question, there were
apparently no “coaches” assigned to the Las Vegas call center.
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of the Las Vegas call center when Altamonte Springs handled only 50% Spanish language calls
(50% English).
Andrus testified at length, both under direct and cross-examination, that employee
performance was not a factor in the decision as to which call center to close. Neither were
wages a factor in the decision making process. According to Andrus, there were simply no
concessions that the Union could have offered that would have changed the decision to close
Las Vegas. She acknowledged that the sales volume had increased in Las Vegas prior to its
closure, but that was not an issue, as customer calls could be routed from any where in the
country.
While both Las Vegas and Altamonte Springs were efficient and doing well, there were
more customers in the eastern half of the country than the western half, and more in Florida
than in Nevada. Since the closure of the Las Vegas call center, the Altamonte Springs’ office
has needed to stay open longer hours, in order to cover calls from customers in the western
time zones. There were approximately 48 CSRs in Las Vegas at the time it closed, and
Altamonte Springs has increased by about 18 CSRs so that the additional volume of Spanish
language calls received in that office could be serviced. Overall, the number of bilingual CSRs
has decreased since the Las Vegas office closed. However, because of a high turn over rate
among CSRs, there is an ongoing need to recruit and train new employees. Further, the
Respondent has recently instituted a pilot program to allow certain highly trained, motivated,
and independent bilingual CSRs to work from their homes. Andrus stressed that under the
Respondent’s nation-wide bidding system, any laid off employee, such as those CSRs from the
Las Vegas call center, could bid on vacancies existing anywhere in the country and announced
on its intranet system.
On June 6, 2008,6 union business manager Charles Randall received a call from the
Respondent’s labor relations manager, Corwin Johnson, asking him to come to the Las Vegas
facility that morning. When Randall arrived for the meeting with Johnson, a second man,7 who
Johnson did not recognize, was also present for the Respondent, and the Respondent’s director
of client and labor relations, Kathleen McBee, was participating by speaker phone. McBee
announced that the Las Vegas call center would be closed as of August 8. She mentioned that
two other call centers would also be closing, and that all the affected employees would be
notified of the closure by noon.
According to Randall, McBee was in a hurry to get off of the telephone, as she still
needed to make calls to the other offices that were closing. Apparently after she hung up, the
unidentified man read to Randall a list of “talking points.” According to Randall, who had only
learned of the closure for the first time that morning, he told Johnson that he had “a hundred
questions” regarding the closure and wanted to discuss them. Johnson responded that he was
leaving town that day, but that Randall should get back to him with his questions and they would
talk. Later that afternoon, a document entitled “Key messages/Talking Points-Charlie Randall[,]
June 6, 2008” was emailed to Randall. (G.C. Ex. 2.) Randall testified that this was the
document read to him at the meeting by the unidentified individual.

6 All dates are in 2008, unless otherwise indicated.
7 While there is disagreement by the witnesses as to whom this individual was, it is
unnecessary to make a specific identification, as it is clear that he was representing the
Respondent.
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The document announces the closing of three call centers, including Las Vegas, which
was to close on August 8. It indicates that approximately 50 employees will be affected by the
closure, and that employees represented by the Union “will be offered separation benefits in
accordance with the respective union contract.” Also it mentioned that, “Outplacement
assistance to union represented employees will be offered per provisions in the union contract.”8
Further, the document states that the closures are necessary because the Employer
“needs fewer call center representatives.” The number of calls that are being received from
customers is “dropping dramatically.” Of particular significance, the document goes on to say
that, “In deciding which call centers should remain open, we select those that are in the
strongest position to serve customers, support sales and are strategically located.”9
The document closes by thanking Randall for his continued support. It also emphasizes
that the CSRs are expected to continue to meet their sales and production targets and to
provide great customer service throughout the remaining period of their employment.
When Randall returned to his office following the meeting of June 6, he drafted and both
mailed and emailed a letter to Corwin Johnson. (G.C. Ex. 3.) The letter indicated the Union’s
“desire to negotiate” regarding the “notification to close,” and called upon the Respondent to
“cease and desist from closing the call center until such time [as the parties were] able to sit
down and negotiate.” Johnson was asked to contact Randall by no later than June 20 “to set up
dates to bargain.”
Next, Randall contacted his International Union to alert the International of the
Respondent’s decision to close the Las Vegas call center. Following a conference call, the
International’s lawyers drafted a request for information, which the Union was instructed to
make to the Respondent. Pursuant to those instructions, Randall both mailed and emailed a
letter dated June 19 to Corwin Johnson, which letter contained 19 separate paragraphs seeking
information in connection with the closure.10 The letter requested that the information be
furnished to the Union by no later than July 3, and indicated that this requested information was
“vital to IBEW Local 396.” (G.C. Ex. 4.)
By a certified letter dated July 2, Johnson replied that the Union’s request for information
“is hereby declined as the Company has decided that it does not wish to commit its resources to
gathering the requested information.” Further, Johnson indicated with respect to “Item 7,” the
current seniority list and salaries for bargaining unit employees, that if the Union “sincerely”

8 It should be noted that the “Reduction in Force” provisions of the current collective
bargaining agreement are found in Article 8 of that contract. (Jt. Ex. 1, pp. 11-13.)
9 As noted above, when Cindy Andrus testified she indicated what the Respondent meant by
the term “strategically located.” However, it is the position of the General Counsel and the
Union that this term was never specifically explained to the Union.
10 Paragraph 9(a), and its subparagraphs, of the complaint enumerate the information
request made by the Union to the Respondent on June 19, which failure to furnish on the part of
the Respondent is alleged to constitute a violation of the Act. However, the complaint only lists
18 of the 19 paragraphs of information requested by the Union. The General Counsel
specifically does not allege as an unfair labor practice the Respondent’s failure to furnish the
Union with the information requested in paragraph 7 of the Union’s letter, specifically that
dealing with the “seniority list and current salaries for the bargaining unit employees.”
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lacked such information, he would send them a copy of the current collective bargaining
agreement and seniority list. (G.C. Ex. 5.) To date, the Respondent has not furnished the
Union with any of the requested information.11
The parties, thereafter, had one additional meeting of importance regarding the closure
of the Las Vegas call center. That meeting was held on July 9, and was attended by Randall,
Johnson, Ken Martin, the Respondent’s human resources manager for the Las Vegas facility,
and Robert Herrera, the Respondent’s assistant business manager. Unfortunately, the parties
disagree about certain statements made at this meeting, with the Union’s witnesses having a
somewhat different recollection than the Respondent’s witnesses.
According to Johnson, a meeting was scheduled for July 9, and on the day before, he
called Randall to confirm the time for the meeting. He testified that he told Randall that he was
coming into town and would be “prepared to do effects bargaining.” Johnson testified that
Randall told him that he was not prepared to meet, as the Employer had not furnished the
documents requested by the Union. Johnson claimed that he told Randall that it seemed to him
that most of the requested information was related to the “decision” to close the call center, and
was “targeting decisional bargaining,” which he was not going to discuss. He repeated that he
was coming only to discuss the effects of the closure, but that if Randall brought the information
request with him, they could go through it “item-by-item” to determine whether any of the
requested information was relevant to effects bargaining. They agree to do so.
They met the following day at 1 p.m. Initially, they discussed a number of grievances,
which had been scheduled and were unrelated to the issues at hand. Thereafter, Johnson
asked if the Union were ready to talk about the closure of the call center. Randall stated that he
would not discuss the closure as the Employer had refused to furnish the requested documents.
Johnson asked whether Randall had brought the request with him so they could look at it, and
Randall replied that he had not done so. According to Johnson, Robert Herrera then asked
what the Employer was prepared to offer, but Randall cut him off, saying they had to return to
the union hall. Johnson asked it they could meet again the following day with the Union bringing
the information request so that they might look to see whether any of the documents related to
effects bargaining. Johnson testified that Randall agreed to do so. However, the following day,
Randall called and said that the Union was unable to meet. Johnson then left town.
On cross-examination, Johnson testified that the Respondent was prepared to offer
“enhanced termination allowances” to the CSRs, but did not do so as Randall refused to discuss
effects bargaining without the requested documents. He takes the position that the Union never
gave him a chance to offer anything in connection with the effects of the closure upon the
employees.
For the most part, Ken Martin’s testimony supports Johnson. According to Martin,
Randall was focused on the requested documents, which the Respondent had refused to
produce. Johnson wanted to know which documents were relevant to “impact bargaining,” as it
seemed to him that they were instead related to the decision to close the facility. The
Respondent was refusing to discuss that decision. Martin testified that Randall repeated that
without the documents he did not have enough information to discuss any of the issues.
Herrera did make one “impact proposal,” the substance of which Martin could not recall. In any
event, Randall allegedly cut him off and ended the meeting.

11 Pursuant to subpoena from counsel for the General Counsel, the Respondent did produce
at trial certain of the documents contained in the Union’s information request.
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Randall’s recollection of the meeting was somewhat different, but mostly in its emphasis
on the matters discussed. He testified that Johnson made it clear that the Respondent was not
going to furnish the requested documents, and was not at the meeting to negotiate the decision
to close. Randall told Johnson it was “imperative” the Union received the documents in order to
fairly represent the employees. Johnson still refused to provide the documents and allegedly
said that “he wasn’t there to discuss the decision,” and that while he was “willing to sit and
listen, nothing was going to change.” According to Randall, he decided that without the
requested documents that there was no way in which he could go forward and have meaningful
discussions and so he ended the meeting. He asked Johnson to reconsider the Respondent’s
refusal, and a meeting was scheduled for the following day. It is important to note that in
response to a question from the undersigned as to whether in this meeting with Johnson on
July 9 he had ever specifically asked Johnson to bargain over the “effects” of closing the call
center, Randall indicated that he had not used the word “effects.”
The next morning Randall called Johnson and asked him whether he had reconsidered
the refusal to furnish the requested documents. As Johnson indicated that he had not, Randall
said that, therefore, there was no reason for the men to “waste [their] time,” and the meeting
was cancelled.
Robert Herrera’s testimony generally supports Randall, although there are some
contradictions. He claims that at the meeting of July 9, Randall made it clear that the
documents were needed to bargain over both the decision to close and the effects of that
decision. Allegedly, Johnson said that no matter what was discussed, it would not change the
decision to close the Las Vegas facility. According to Herrera, Johnson did ask whether they
wanted to bargain over the effects. However, Randall declined to do so as they had never
received the requested documents. The union representatives felt that without the documents,
they would be “coming in [to the negotiations] blind.” He claims that Johnson had his “mind set,”
had a “condescending” attitude, and would simply not furnish the documents. Therefore, it was
the Union’s position not to bargain over either the decision or the effects without them.
As noted, there are differences between the versions of the meeting of July 9 as told by
the Union’s and the Respondent’s witnesses. In fact, the truth may lie somewhere in between.
However, for the most part it is possible to reconcile the two versions as the differences are
mostly over what was emphasized at the meeting, rather than the substance of the discussions.
To the extent that the conflicts can not be reconciled, I credit the story as told by Johnson and
Martin, as I found their testimony to be somewhat more consistent and logical, considering what
had transpired between the parties to that date.
By letter dated July 25, Johnson expressed to Randall his disappointment with what had
transpired on July 9 and 10. Johnson complained that he had traveled to Las Vegas for the
“purpose of affects [sic] bargaining relative to the closure of the call center, [which Randall] had
chose[n] not to do….” Further, the letter continued that “the closure is on track and the
Company continues to make final preparations for the announced closure date of August 8,
2008.” (G.C. Ex. 6.)
The final document involving these issues was a letter dated August 1 from Randall to
Johnson. In the letter, Randall “reiterates” the Union’s “intent to bargain not only the closure [of
the call center] but the effects of said closure….” However, the Union “continues its demand of
the documentation that [it has] asked for in the formal request [it] sent to [Johnson] on June 19,
2008.” (Res. Ex. 22, p. 9.) On August 8, 2008, the Las Vegas call center closed. To date the
Respondent has not furnished the Union with any of the documents requested. As noted
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above, the collective bargaining agreement between the parties contains provisions related to a
reduction in force, and certain benefits that inure to laid off employees. (Jt. Ex. 1, Article 8, pp.
11-13.) While Randall, under cross-examination, indicated a lack of knowledge as to whether
the laid off CSRs received those benefits, he admitted that the Union had not filed any
grievance under the contract alleging a violation of the reduction in force provisions.
C. Analysis and Conclusions
1. The Alleged Duty to Bargain over the Decision to Close
Preliminarily, I will note my sense, based on the record evidence, that the Respondent
and the Union were “talking past each other” over the issues that separated them. The Union
certainly made it clear that it desired to bargain with the Respondent over both the decision to
close and the effects of that decision. However, the Union was also clearly intent on getting all
the documents that it had requested from the Respondent before it would discuss anything
involving the closure of the call center, either the decision itself or the effects of that decision.
The Respondent had refused to furnish any of the requested documents. It also refused to
bargain over the decision to close, which it contended was a non-mandatory subject of
bargaining, but was willing to bargain over the effects of that decision. Of course, effects
bargaining were never held because the Union continued to insist on receipt of the requested
documents, which the Respondent failed to produce.
It appears to me that this is the proverbial case of which comes first, “the chicken or the
egg.” By this I mean, which issue must be settled first, the alleged duty to bargain or the alleged
duty to produce requested documents. I believe that the threshold question involves the alleged
duty to bargain over the decision to close the call center. All other issues follow from that
determination. The seminal cases in this area are First National Maintenance v. NLRB, 452
U.S. 666 (1981); and Dubuque Packing Company, Inc., 303 NLRB 386 (1991).
In First National, the Supreme Court announced a balancing test regarding the duty to
bargain over certain fundamental business decisions. The employer operated a cleaning and
maintenance business pursuant to which it contracted with commercial customers to provide a
labor force and supervision in return for a management fee. The employer canceled its contract
with a customer, failing to bargain with the union representing its employees about either the
decision to terminate the contract or the effects of that decision on its employees. The Supreme
Court’s holding was limited to the issue of the decision to cancel the contract.12 The Court
concluded that the decision involved a change in the “scope and direction of the enterprise,”
which was akin to the decision as to whether to be in business at all. The Court further
concluded that a subject involves “mandatory bargaining” only where the subject proposed for
discussion is “amenable to resolution through the bargaining process.” Under the specific facts
in this case, the Court struck a balance in favor of the employer’s interest in running a profitable
business and the flexibility needed to do so. It held that the employer did not have a duty to
bargain over this decision. Although certainly very significant, the case seems limited to a
situation where an employer seeks to partially close a business.
In Dubuque Packing, the Board further expanded on this balancing test as it related to a
relocation of unit work. It held that the initial burden is on the General Counsel to show that
where there is a “relocation of unit work,” it is unaccompanied by a basic change in the nature of

12 The Court did also find that under such circumstances, the employer had a duty to
bargain with the union over the “effects” of its decision on the members of the bargaining unit.
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the employer’s business. Where the General Counsel carries this burden, he will have
established a prima facie case that the relocation decision is a “mandatory subject of
bargaining.” However, the employer may then produce rebutting evidence by establishing that
the work performed at the new location is significantly different from the work previously
performed; or that the work performed at the previous location is to be discontinued entirely and
not moved to a different location; or that the decision involves “a change in the scope and
direction of the enterprise.” As an alternative, the employer may establish that the “labor costs
(direct and/or indirect)” were not a factor in the decision; or that even if labor costs were a factor,
the union could not have offered labor cost “concessions” of such significance as to change the
employer’s decision to relocate. In this case, the Board found that the employer had unlawfully
failed to bargain.
I agree with counsel for the Respondent’s assessment in his post-hearing brief that the
reduction in the Employer’s customer base, which resulted in its decision to close a number of
call centers including the Las Vegas facility, is a hybrid situation constituting both a “partial
closing” and “work transfer.”13 As such, it combines elements of both the First National and
Dubuque Packing cases.
The Respondent concedes that the General Counsel has met his initial burden under
Dubuque Packing of establishing that there was “a relocation of unit work unaccompanied by a
basic change in the nature of the employer’s operation.” This is clearly so, as the Respondent
has continued to remain in the landline telephone business, providing phone service to
customers at various locations throughout the country. At the same time, there was some
relocation of unit work from the bilingual call center in Las Vegas, which was closed, to the
bilingual call center in Altamonte Springs, with some hiring at that location, and to a limited
extent some bilingual CSRs were hired to work from their homes. Spanish language calls
previously handled from Las Vegas were simply routed to Altamonte Springs, or to the CSRs
working from their homes. However, as noted above, there was an overall reduction in the
number of bilingual CSRs employed by the Respondent nation-wide.
It is the Respondent’s position that it has rebutted the General Counsel’s prima facie
showing under Dubuque Packing by establishing that the consolidation of the call centers into
fewer mega-centers constituted a “change in the scope and direction” of its business. I agree.
Cindy Andrus, the Respondent’s manager of strategic planning, testified at length about
the significant diminution in the Respondent’s customer base, and the Respondent’s efforts to
address that problem. A new business model was developed, which called for a reduction in
the number of call centers from 14 small centers to eight call centers at the time of the closure
of the Las Vegas center,14 ultimately to 5 or 6 large “mega-centers.” In my view, this new
business model constituted a significant and meaningful “change in the scope and direction” of
the Respondent’s business and is exactly the type of change that the Court indicated in First
National would be a non-mandatory subject of bargaining.

13 The record evidence established that following the closure of the Las Vegas call center
and the lay off of its bilingual CSRs, a subsequent hiring of bilingual CSRs for Altamonte
Springs and other locations still resulted in an overall reduction nation-wide in the number of
bilingual CSRs.
14 Since the beginning of 2006, the Respondent has closed two outsourced centers (TelCity
and AFNI) and two Company-operated centers (Fayetteville, NC and Killeen, TX). Further, at
the time the Las Vegas call center was closed, another center was closed in Fort Myers, FL,
with the closure of the call center in Clinton, NC following the next month. (Res. Ex. 4.)
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The Respondent made a business decision not to operate specific small call centers,
but, rather, to close them and divert the work to fewer mega-centers. This also appears to be
precisely the kind of managerial decision that the Court in First National had in mind when it
stated that a “decision whether to be in business at all” was not in itself a decision primarily
about “conditions of employment,” although the effect of that decision might be to terminate
employees. Id. at 677-78. Thus, it would seem the decision to close the Las Vegas call center
was a non-mandatory subject of bargaining.
Further supporting the proposition that the closure of the Las Vegas call center was not
a mandatory subject of bargaining is Owens-Brockway Plastic Products, Inc., 311 NLRB 519-
521, fn. 5 (1993). Although in that case the Board found that the employer, who was looking for
monetary concessions, had violated the Act, it held that a “relocation” decision was covered by
Dubuque Packing. Such a decision “to consolidate operations,” could, under the right set of
circumstances, meet the “scope and direction” prong as set forth in Dubuque.15
In my view, the closure of the Las Vegas call center and relocation of that work as part of
the Respondent’s new business model was just such a situation. This was not primarily a
money saving program, as much as it was a restructuring of manpower to create more efficient
mega-center offices. Accordingly, I conclude that the decision to close the Las Vegas call
center involved a fundamental “change in the scope and direction” of the Respondent’s
business model. As such, it was a non-mandatory subject of bargaining. The Respondent
freely admits that it refused to bargain with the Union over its decision to close the call center,
and I find that such a refusal did not violate the Act.
In the alternative, I also conclude that the Respondent has met the second prong in the
Dubuque case in that “labor costs” were not a factor in the decision to close, and that even if a
minor factor, the Union could not have offered cost concessions significant enough to have
altered the Respondent’s decision to relocate. Cindy Andrus testified credibly and at length that
“labor costs” were not a factor in the decision to close the Las Vegas call center. That closure
was merely part of a much larger course of action intended to reduce the number of call centers
and to create a smaller number of mega-centers.
Andrus was the manager primarily responsible for making the recommendation that led
to the decision to close Las Vegas and route almost all Spanish language calls to Altamonte
Springs. She was cross-examined at length, and her testimony remained largely unrebutted.
The premise that the decision was not primarily related to labor costs was not contradicted.
According to Andrus, while both Las Vegas and Altamonte Springs were performing
well, performance was not a factor in the determination as to which Spanish language call
center to leave open.16 As noted earlier, the entire mega-center concept was at least several
years in the planning, and it was primarily intended to make the Respondent’s customer service
and sales of products more efficient. As reflected in the “talking points (G.C. Ex. 2.), and
Andrus’ testimony, the Respondent was of the opinion that Altamonte Springs was more
“strategically located” than was Las Vegas. It was located in a company owned building with

15 In the Owens case, the Board simply found that the employer’s decision to close a plant
and relocate the work was not part of its consolidation of operations.
16 Despite a significant amount of testimony from employee witnesses regarding competition
between Altamonte Springs and Las Vegas, there was no credible, probative evidence that
management took performance into consideration when deciding which call center to close.
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space to expand, where support staff and other employee components were available, and in a
geographical area near a large number of the Respondent’s customer base. As Andrus credible
testified, there were no concessions that the Union could have offered that would have affected
any of those factors. Her testimony that the “driving motive” behind the closure of the Las
Vegas call center was the Respondent’s overall plan to create mega-centers, and that wages
were not a consideration was convincing.17
Based on the above, I am of the opinion that the Respondent has met its burden under
Dubuque Packing of establishing that labor costs were not a factor in the decision to close the
Las Vegas call center, and that even if labor costs were a minor factor in the decision, the Union
could not have offered labor cost concessions as would have changed the Respondent’s
decision to have most Spanish language calls handled by Altamonte Springs. Therefore, I find
that the decision to close the call center in Las Vegas was not a mandatory subject for
bargaining, as the “decision” itself did not involve the wages, hours, or working conditions of the
unit employees. Concomitantly, the Respondent’s refusal to bargain over the closure decision
was not a violation of the Act.
Accordingly, I shall recommend that complaint paragraphs 8 and 13,18 only as they
relate to the refusal to bargain over the “decision” to close, be dismissed.
2. The Request for Information
As has been set forth above in detail, on June 19, 2008, the Union submitted a lengthy
request for information to the Respondent. (G.C. Ex. 4.) This information request dealt with the
closure the Las Vegas call center. The Respondent has refused to furnish any of that
information, taking the position that it is not legally required to do so as the information request
covers a non-mandatory subject of bargaining, namely the decision to close the call center.
In Disneyland Park and Disney’s California Adventure, 350 NLRB No. 88 (2007), the
Board recited certain well established legal principles regarding an employer’s obligation to
provide requested information to a union representing the employer’s employees. As the Board
said, “An employer has the statutory obligation to provide, on request, relevant information that
the union needs for the proper performance of its duties as collective bargaining representative.”
The Board cited to a number of Supreme Court decisions including, NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967); and
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). Further, the Board added that, “This includes
[information needed for] the decision to file or process grievances,” citing to Beth Abraham
Health Services, 332 NLRB 1234 (2000).
In the Disneyland case, the Board repeated its well established principle that it “uses a
broad, discovery-type standard in determining the relevance of requested information. Potential
or probable relevance is sufficient to give rise to an employer’s obligation to provide

17 While extensive company documents were admitted into evidence showing the nation-
wide decline in the Respondent’s customer base and the implementation of the strategic plan to
create mega-call centers, there was no indication in any of this documentation that labor costs
were a significant issue.
18 At the hearing there was an extensive amendment to the complaint. Amended paragraph
13 was formerly paragraph 12. (G.C. Ex. 1(o).)
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information.” Further, the Board reiterated that where the union’s request for information
pertains to employees in the bargaining unit, that the “information is presumptively relevant and
the [r]espondent must provide the information.”
The Respondent argues that it was not required to furnish the requested information
because the request was not made in good faith, since it was highly burdensome; that in part it
requested information outside the terms and conditions for the recognized bargaining unit, and
was, therefore, not relevant; and because it dealt with a non-mandatory subject of bargaining,
namely the closure of the Las Vegas call center. In my view, the first two of the Respondent’s
stated reasons for refusing to furnish the requested information are without merit. While the
information request was certainly very detailed and sought a great deal of documentation, that
by itself would not serve as a legitimate basis to refuse to comply, assuming the requested
information was relevant and necessary for the Union’s performance of its representational
duties. Also, although information requested about matters outside the bargaining unit are not
presumptively relevant, a union can satisfy its burden of proving relevance merely by
demonstrating a reasonable belief, supported by objective evidence, that the requested
information is relevant.19 Knappton Maritime Corp., 292 NLRB 236, 238-239 (1988). However,
I need not address these two reasons in detail, as I have concluded in agreement with counsel
for the Respondent that to the extent the information request sought documents covering the
“decision” to close the call center, the Respondent was not required to produce them.
I have already determined that the “decision” to close the Las Vegas call center was not
a mandatory subject of bargaining. The Respondent’s refusal to bargain over the closure
“decision” was not unlawful. It, therefore, logically follows that the Respondent was not legally
required to comply with the Union’s information request, to the extent that it dealt with the
“decision” to close. The Board has so held in a number of cases. See BC Industries, 307
NLRB 1275 (1992), citing Cowles Communications, 172 NLRB 1909 (1968).
Obviously, requiring the Respondent to produce documents that the Union could not
use, because the Respondent was lawfully refusing to discuss the “decision” to close, would
constitute “an exercise in futility.” It would cause the Respondent a great deal of effort with no
legitimate purpose to be served. When placed in this context, Corwin Johnson’s statement in
his July 2 letter to Charles Randall stating that the Respondent “declined” to furnish the
requested documents because it “does not wish to commit its resources to gathering the
requested information” does not seem unreasonable. (G.C. Ex. 5.)
However, while I have concluded that the Respondent did not violate the Act by refusing
to furnish the Union with information regarding the “decision” to close the Las Vegas call center,
a non-mandatory subject of bargaining, it still must be determined whether any of the
information sought in the June 19 request related to any other subjects.20 In their post-hearing
briefs, both counsel for the Respondent and counsel for the General Counsel make reference to
paragraph 6, and its subparagraphs, of the information request. (G.C. Ex. 4, par. 6A,B,& C.) It
is significant to note that said paragraph is the only numbered paragraph that counsel for the

19 As the Board has held that “potential or probable relevance is sufficient to give rise to an
employer’s obligation to provide information,” it would seem the Union would have no difficulty
reaching this standard. Disneyland, supra; Wisconsin Bell, Inc., d/b/a SBC Midwest, 346 NLRB
62, 64 (2005) (holding that a union’s burden under these circumstances is “not an exceptionally
heavy one.”)
20 As noted earlier, the complaint does not allege the failure to furnish the seniority list and
salaries of bargaining unit employees to constitute a violation of the Act. (G.C. Ex. 4, par. 7.)
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General Counsel refers to specifically as “information the Union requested relating to the effects
of the move.” Similarly, counsel for the Respondent alludes to “effects” bargaining when
referencing this numbered paragraph, and in that reference states that had "that reason for the
request ever been explained or understood, Respondent likely would have been obligated to
have produced the information, and Respondent would have done so.”
By the above exculpatory statement, counsel for the Respondent is arguing that even if
the information in paragraph 6 was related to “effects” bargaining, the Respondent was not
required to product the documents because the Union failed to explain to the Respondent’s
representatives, in particular Corwin Johnson, why the information was relevant. I do not agree.
Following the Respondent’s notification to the Union on June 6 that it was closing the
Las Vegas call center, the Respondent should have reasonably expected that, at a minimum,
the Union would want to bargain over the “effects” of the closure on the bargaining unit
employees. In fact, the Respondent did expect that and, according to Johnson, was prepared to
bargain with the Union over effects, which he testified was the purpose of his trip to Las Vegas
on July 9 and 10. The documentation requested in paragraph 6 of the Union’s information
request clearly related to effects bargaining as it sought the locations to which bilingual calls
were to be routed, to whom they would be referred, whether there were plans to hire additional
CSRs to handle those calls, and whether there were efforts underway to hire such employees.
The Respondent’s managers were quite capable of recognizing that such information was
necessary for the Union in order for it to determine whether the members of the bargaining unit
would be able to transfer to the new work situs, or by some other means be allowed to continue
to perform this work. As it should have been self evident to the Respondent that this information
was needed for “effects” bargaining, the Union was entitled to receive the documents without
having to further explain itself to the Respondent.
It is very well established law that an employer has a duty to bargain with a union
representing its employees over the “effects” of the closure of a business, even if the employer
does not have a duty to bargain over the economic “decision” to close the business. See
National Car Rental Systems, 252 NLRB 159 (1980), enfd. 672 F.2d 1182 (3rd Cir. 1982);
Gannett Co., Inc., 333 NLRB 355 (2001); also see Champion International Corporation, 339
NLRB 672 (2003); Willamette Tug & Barge Co., 300 NLRB 282 (1990); Los Angeles Soap Co.,
300 NLRB 289, 295 (1990).
In summary, I have concluded that the Respondent did not have a duty to furnish the
Union with documentation in response to the Union’s June 19 request for information relating to
the Respondent’s “decision” to close the Las Vegas call center, as this was a non-mandatory
subject of bargaining. However, the Respondent did have a duty to furnish the Union with
documentation in its request for information relating to the “effects” of that decision on the unit
employees. Only paragraph 6, subparagraphs A, B and C, of the information request of
June 19 related to “effects” bargaining. Accordingly, by failing and refusing to furnish the Union
with this information since June 19, the Respondent has violated Section 8(a)(5) and (1) of the
Act, as alleged in paragraph 9(a), subparagraphs (6)(a),(b) and (c), and paragraphs 9(b), 9(c),
and 13 of the complaint. Correspondingly, I shall recommend that all other subparagraphs of
paragraph 9(a) be dismissed.
3. The Alleged Duty to Bargain over the Effects of Closing
As I have indicated above, it is axiomatic that an employer has a duty to bargain with a
union representing its employees over the “effects” of the closure of a business, or, under the
same rational, a partial closure, even if the employer does not have a duty to bargain over the
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economic “decision” to close the business. See National Car Rental Systems, supra; Gannett
Co., Inc., supra; Champion International Corporation, supra; Willamette Tug & Barge Co., supra;
and Los Angeles Soap Co., supra. Although counsel for the Respondent acknowledges this
duty and contends that the Respondent was ready and willing to bargain over the effects of the
closure of the Las Vegas call center, he admits that no such bargaining was conducted.
However, he places the blame on the Union, contenting that it was the Union that refused to do
so.
Looking back on the meeting of July 9, it is clear that Corwin Johnson had specifically
come to Las Vegas to meet with the Union’s representatives to negotiate over the effects of the
decision to close the call center. That is clear not only from the credible testimony of Johnson
and Ken Martin, who attended the meeting, but, for the most part, also from the testimony of
Charlie Randall and Robert Herrera, who met with them. Additionally, Johnson’s letter of
July 25 (G.C. Ex. 6.), in which he expresses his disappointment over what had transpired on
July 9 when he had hoped to engage in effects bargaining, supports the Respondent’s position
that it was willing and prepared to do so. Johnson, of course, places the blame on the Union,
contending that Randall refused to have such discussions without first being provided with the
documents requested in the Union’s letter of June 19.
It does appear to be largely accurate that Randall was refusing to discuss or negotiate
the effects of the closure without the documents, and apparently all of them. While Randall’s
and Herrera’s testimony as to what transpired at the meeting of July 9 was somewhat evasive
on this issue, their overall testimony regarding the conversations they had with management
following the Union’s request for information letter of June 19 reveals that it was the Union’s
position not to bargain over either the decision to close the call center or the “effects” of that
decision without first receiving all the documents requested.
Still, as I have decided above, the Respondent was legally required to furnish the Union
with the documents requested in paragraph 6, and its subparagraphs, of the information
request. These documents pertained to the “effects” of the Respondent’s decision, over which
the Respondent was obligated to bargain. Who can know what could have happened had the
Respondent tendered this information? As the Union had indicated a desire to bargain over
both the decision and the effects, it certainly could be that had the Respondent tendered the
“effects” documents, the Union may have been satisfied and commenced “effects” bargaining.
Of course, we will never know, as the Respondent did not do what it was legally required to do,
namely furnish the “effects” documents.
The Union should not be forced to commence bargaining over “effects” without first
obtaining the documents that it was legally entitled to have, and which certainly may have been
beneficial to the Union’s bargaining position. It is my view that the Respondent’s refusal to
furnish the “effects” documents was the precipitating event, which privileged the Union’s refusal
to commence “effects” bargaining.21 Despite Johnson’s professed willingness to negotiate over
the “effects” of the decision to close, the Respondent’s refusal to furnish the effects documents
served as a continuing refusal to negotiate over those effects. Accordingly, I conclude that

21 Had the Respondent furnished the Union with the effects documents and had the Union,
thereafter, still refused to commence “effects” negotiations without all of the other documents in
its information request of June19, there would have been no unlawful refusal to bargain by the
Respondent.
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since June 19, 2008,22 the Respondent has violated Section 8(a)(5) and (1) of the Act by
refusing to engage in effects bargaining with the Union as alleged in paragraphs 8(d) and 13 of
the complaint.23
4. Alleged Bypassing of the Union and Direct Dealing with Employees
At the hearing, I permitted counsel for the General Counsel to amend the complaint to
allege that Jerry Wagy, an admitted supervisor, bypassed the Union and dealt directly with the
employees in the bargaining unit by soliciting employees to relocate to a different call center
operated by the Respondent. However, in his post-hearing brief, counsel for the General
Counsel is silent regarding this Section 8(a)(5) allegation. Similarly, counsel for the Charging
Party, who joins in the brief of the General Counsel, makes no mention of this allegation, even
where he adds separate comments. Counsel for the Respondent, in his brief, takes the position
that any conversations between Wagy and unit employees constituted harmless exchanges
between a manager and his employees, over a matter not in contention. In any event, the
evidence regarding this allegation is not in dispute as neither Wagy, who did not appear at the
hearing, nor any other management officials testified in contradiction to the employee
witnesses.24
Jerry Wagy was the Respondent’s call center manager in Medford, Oregon. He was
temporarily assigned to the Las Vegas call center during the events in question. Wagy was
present at a meeting, along with Ken Martin and certain other managers, two or three days after
the Las Vegas CSRs were first informed of the impending closure of that facility. It was
apparently at that meeting that Wagy asked the assembled employees for a “show of hands” as
to whether anyone would be interested in moving to Medford and working in the call center
there, once the Las Vegas facility closed.
Further, a number of weeks before the closing, Wagy, in individual separate
conversations, told at least one employee that he had done a good job in Las Vegas and that
Wagy would welcome him at the Medford call center if he wanted to move there after the Las
Vegas call center closed. Isauro Antonio Reyes testified about such a conversation. According
to Reyes, he asked Wagy whether the Respondent would pay “relocation” expenses. Wagy is
alleged to have answered, “Well, if you are interested, we can talk.” Since, Reyes was not
really interested, no further discussion was held.25
In my view, these incidents do not rise to the level of an unfair labor practice. The
evidence was uncontested that the Respondent posts notices of vacancies nation-wide on its
intranet system. Any employee, including the CSRs from the Las Vegas call center, was free to
research the vacancies and to submit an application. Complimenting employees by saying that
they had performed well and encouraging them to seek a transfer to Medford, Oregon, or asking

22 As June 19 was the date of the Union’s request for information, the Respondent’s refusal,
thereafter, to furnish the “effects” documents was the precipitating event of its refusal to
negotiate over those effects.
23 As note earlier, at the hearing there was an extensive amendment to the complaint.
Amended paragraph 13 was formerly paragraph 12 (G.C. Ex. 1(o).)
24 The facts regarding this direct dealing allegation are not set forth earlier in the fact section
of this decision as they are not disputed.
25 Another employee, Richard Campos, testified about a conversation that he had with
supervisor Sarah Sterling about Wagy holding a “job fair,” but there was no allegation that such
a “job fair” was actually held, or that there were any subsequent job offers to employees.
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whether employees would be interested in such a transfer was nothing more than an effort to
support employees about to be laid off. There is no evidence that Wagy actually “offered” any
of these employees a job, or that he in any way negotiated with them over terms and conditions
of employment, including some type of a severance arrangement.
It appears that these conversations were informal and casual in nature, as between a
manager and his employees, whereby the manager was seeking to give the employees some
encouragement and positive thoughts in an otherwise unsettled time. There was clearly no
wrongful intent and no effort to bypass or undermine the authority of the Union as the collective
bargaining representative. These few statements by Wagy surely were not likely to erode the
Union’s position as the employees’ exclusive representative. See e.g. Modern Merchandising,
284 NLRB 1377, 1379 (1987). Suggesting to employees about to be laid off some avenues or
opportunities that they might seek in obtaining future employment should, in my opinion, be
encouraged not chastised.
Accordingly, I conclude that the statements made by Wagy neither constituted direct
dealing with employees, nor an attempt to bypass the Union as the collective bargaining
representative. Therefore, I shall recommend that complaint paragraph 10 be dismissed.26
Conclusions of Law
1. The Respondent, Embarq Corporation, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, International Brotherhood of Electrical Workers Local Union # 396, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent, herein called the Unit, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act: The Respondent’s Operator Services and Clerical employees in the various departments
as defined by the Act, as to the extent certified by the National Labor Relations Board on
November 2, 1954, in Case 28-RC-2644.
4. Since at least 1954, the Union has been the exclusive collective bargaining
representative of the Respondent’s, or that of its predecessors’, employees in the Unit within the
meaning of Section 9(a) of the Act.
5. The most recent collective bargaining agreement between the Respondent and the
Union is effective from March 15, 2006 through March 31, 2009.
6. By the following acts and conduct the Respondent has violated Section 8(a)(1) and (5)
of the Act:
(a) Failing and refusing to furnish the Union with the information the Union requested in
its letter of June 19, 2008, specifically paragraphs 6A, B, and C, related to the effects of the
Respondent’s decision to close the Las Vegas call center; and
(b) Since June 19, 2008, failing and refusing to bargain with the Union over the effects of
its decision to close the Las Vegas call center.

26 This is renumbered paragraph 10, following the amendment at the hearing.
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7. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
8. The Respondent has not violated the Act except as set forth above.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and take certain affirmative action designed to
effectuate the policies of the Act.
As a result of the Respondent’s unlawful failure to bargain in a meaningful manner and
at a meaningful time about the effects of its closure of the Las Vegas call center, the employees
of that facility have been denied an opportunity to negotiate through their collective bargaining
representatives at a time when the Respondent might still have been in need of their services,
and a measure of balanced bargaining power existed. Meaningful bargaining cannot be
assured until some measure of economic strength is restored to the Union. A bargaining order
alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed.
Accordingly, I shall recommend that, in order to effectuate the purposes of the Act, the
Respondent bargain with the Union concerning the effects on its employees of the closure of the
Las Vegas call center, and shall order a limited backpay requirement designed both to make
whole the Las Vegas call center CSRs for losses suffered as a result of the violation and to
recreate in some practical manner a situation in which the parties’ bargaining is not entirely
devoid of economic consequences for the Respondent. Thus, the Respondent shall pay to the
CSRs in the unit represented by the Union at the Las Vegas call center on the date the
Respondent notified them of its decision to close the facility their normal wages from 5 days
after the date of the Board’s Decision until the occurrence of the earliest of the following
conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects
pertaining to the effects of the decision to close the Las Vegas call center; (2) the date a bona
fide impasse in bargaining occurs; (3) the failure of the Union to request bargaining within 5
business days after receipt of the Board’s Decision, or to commence negotiations within 5
business days after receipt of the Respondent’s notice of its desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum
paid to any employee exceed the amount that he or she would have earned as wages from the
date of the closure of the Las Vegas call center to the time he or she secured equivalent
employment; provided, however, that in no event shall this sum be less than these employees
would have earned for a 2-week period at the rate of their normal wages when last in the
Respondent’s employ at the Las Vegas call center, with interest.27

27 This remedy is as provided for in Transmarine Navigation Corporation, 170 NLRB 389
(1968), as modified by Melody Toyota, 325 NLRB 846 (1998).
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Interest is to be computed as in New Horizons for the Retarded, 283 NLRB 1173
(1987).28
Further, I shall recommend that the Respondent be ordered to provide the Union with
the information requested in its letter of June 19, 2008, specifically paragraphs 6A, B, and C,
related to the effects of the Respondent’s decision to close the Las Vegas call center.29
Since the Respondent has closed its Las Vegas call center, this facility is no longer
available to post a notice to employees regarding violations and remedy. Therefore, I shall
recommend that the Respondent be ordered to mail signed copies of the notice to the Union
and to all the Respondent’s CSRs represented by the Union and employed at the Las Vegas
call center on June 6, 2008, the date the employees were notified of the intended closure.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30
ORDER
The Respondent, Embarq Corporation, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Failing and refusing to furnish the Union, International Brotherhood of Electrical
Workers Local Union # 396, AFL-CIO, with the information requested by it in its letter of
June 19, 2008, specifically paragraphs 6A, B, and C, related to the effects of the Respondent’s
decision to close the Las Vegas call center;
(b) Failing and refusing to bargain in good faith with the Union over the effects of its
decision to close the Las Vegas call center; and
(c) In any like or related manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Forthwith furnish the Union with the information requested by the Union in its letter of
June 19, 2008, specifically paragraphs 6A, B, and C, related to the effects of the Respondent’s
decision to close the Las Vegas call center;

28 In the complaint, the General Counsel requests that interest on backpay and other monies
due be awarded by compounding interest on a quarterly basis, rather than on simple interest.
However, the Board has repeatedly declined to deviate from its current practice of assessing
simple interest. See Morse Operations, Inc., d/b/a Sawgrass Auto Mall, 353 NLRB No. 40 fn. 3
(2008), citing to Carpenters Local 687 (Convention & Show Services), 352 NLRB No. 119 fn. 2
(2008). Accordingly, I deny the General Counsel’s request.
29 See G.C. Ex. 4.
30 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)-10-09
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(b) On request, bargain in good faith with the Union as the exclusive collective
bargaining representative of its CSRs at the Las Vegas call center with respect to the effects on
its CSRs of the decision to close the Las Vegas call center and, if any understanding is reached,
embody it in a signed agreement;
(c) Pay to its CSRs formerly employed at the Las Vegas call center as of June 6, 2008,
and represented by the Union their normal wages for the period set forth in the remedy section
of this decision;
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 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 electronic form, necessary to analyze the amount of backpay due under the terms of this
Order;
(e) Within 14 days after service by the Region, mail copies of the attached notice marked
“Appendix,”31 at its own expense, to all CSRs who were employed by the Respondent at its Las
Vegas call center at any time from June 6, 2008, the date the employees were informed of the
intended closure, until the date the call center was actually closed. The notice shall be mailed to
the last known address of each of the CSRs after being signed by the Respondent’s authorized
representative. A signed copy shall also be mailed to the Union; and
(f) 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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated at Washington, D.C. on February 13, 2009.
_______________________
Gregory Z. Meyerson
Administrative Law Judge

31 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT fail and refuse to bargain with the International Brotherhood of Electrical
Workers Local Union # 396, AFL-CIO (the Union) regarding the effects of our decision to close
the Las Vegas call center where customer solutions representatives (CSRs) are represented by
the Union.
WE WILL NOT fail and refuse to give the Union information that it has requested and needs to
represent CSRs at the Las Vegas call center that we decided to close, which information
specifically relates to the effects of the closing upon our represented employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.
WE WILL, on request, bargain with the Union as the representative of our Las Vegas call center
CSRs regarding the effects upon our represented employees of our decision to close the facility,
and put in writing and sign any agreement reached as a result of such bargaining.
WE WILL immediately furnish the Union with all information that it previously requested related
to the effects of our decision to close the Las Vegas call center, which information is necessary
for the Union to bargain over the effects of that closure and its impact on our Las Vegas call
center CSRs.
WE WILL pay to our Las Vegas call center CSRs represented by the Union, and who were
employed on June 6, 2008, the date we notified them of our intention to close the facility, their
normal wages for a period specified by the National Labor Relations Board.
Embarq Corporation
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.