Embarq Corporation

National Labor Relations Board - Board Decisions

Mar 31, 2011

356 N.L.R.B. 982 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
356 NLRB No. 125
982
Embarq Corporation and International Brotherhood
of Electrical Workers Local Union # 396, AFL–
CIO. Cases 28–CA–22019, 28–CA–22020, and
28–CA–22070
March 31, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On February 13, 2009, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
Respondent filed exceptions, and the General Counsel
and the Charging Party filed answering briefs. The Gen-
eral Counsel also filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below,1 to modify his remedy,2 and to adopt the

1 In affirming the judge’s finding that the Respondent violated Sec.
8(a)(5) by refusing to provide nonunit information requested by the
Union that was relevant to bargaining about the effects of the closure
decision, Member Hayes does not agree with the judge’s finding that
the relevance of the information was self-evident at the time of the
request. Further, while he acknowledges that extant Board law does
not require a Union to identify the objective facts supporting a claim of
relevance when requesting nonunit information, he would apply the
Third Circuit standard requiring a union to tell an employer at that time
“of facts tending to support” its request for such information. Hertz
Corp. v. NLRB, 105 F.3d 868, 874 (3d Cir. 1997) (emphasis omitted).
However, even under this standard, the Respondent was aware of the
factual basis for the Union’s request by the time of the hearing and
continued in its refusal to provide such information. Accordingly,
Member Hayes would find a violation as of this later date. See Con-
tract Flooring Systems, 344 NLRB 925, 925 (2005) (concurring posi-
tion of former Chairman Battista and former Member Schaumber).
No party excepts to the judge’s dismissal of the allegation that the
Respondent bypassed the Union and dealt directly with employees.
2 We adopt the judge’s recommendation of a conditional backpay
remedy for the Respondent’s refusal to bargain about the effects of the
Las Vegas center closing. Consistent with the Board’s usual statement
of this remedy, the sum paid to any employee beyond a 2-week mini-
mum shall not exceed the amount that the employee 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, or the date on which the
Respondent shall have offered to bargain in good faith, whichever
occurs sooner. The judge’s statement of the remedy failed to include
the italicized language.
Additionally, backpay shall be based on earnings which the unit em-
ployees would normally have received during the applicable period,
less any net interim earnings, and shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
recommended Order as modified.3
We agree with the judge that the Respondent did not
violate Section 8(a)(5) and (1) by refusing to bargain
with the Union over its decision to close its call center in
Las Vegas, Nevada, and to relocate that work to its call
center in Altamonte Springs, Florida. However, we re-
ject the judge’s characterization of this case as a “hybrid
situation,” combining elements of First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), and
Dubuque Packing Co., 303 NLRB 386 (1991), enfd. in
pertinent part 1 F.3d 24 (D.C. Cir. 1993), cert. denied
511 U.S. 1138 (1994). Instead, we believe that this case
is properly analyzed under Dubuque Packing, where the
Board announced the following test for determining
whether an employer’s decision to relocate is a mandato-
ry subject of bargaining:

Initially, the burden is on the General Counsel to estab-
lish that the employer’s decision involved a relocation
of unit work unaccompanied by a basic change in the
nature of the employer’s operation. If the General
Counsel successfully carries his burden in this regard,
he will have established prima facie that the employer’s
relocation decision is a mandatory subject of bargain-
ing. At this juncture, the employer may produce evi-
dence rebutting the prima facie case by establishing
that the work performed at the new location varies sig-
nificantly from the work performed at the former plant,
establishing that the work performed at the former plant
is to be discontinued entirely and not moved to the new
location, or establishing that the employer’s decision
involves a change in the scope and direction of the en-
terprise. Alternatively, the employer may proffer a de-
fense to show by a preponderance of the evidence: (1)
that labor costs (direct and/or indirect) were not a factor
in the decision or (2) that even if labor costs were a fac-
tor in the decision, the union could not have offered la-
bor cost concessions that could have changed the em-
ployer’s decision to relocate.

303 NLRB at 391. In applying the Dubuque framework,
we find, unlike the judge, that the Respondent failed to
rebut the General Counsel’s prima facie case that the
relocation of unit work was unaccompanied by a basic
change in the nature of the Respondent’s operation. Af-
ter the relocation, the Respondent continued to provide
its customers with the same bilingual customer service,
and its call center employees continued to perform their

3 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
EMBARQ CORP. 983
work in same manner. We further find, unlike the judge,
that the Respondent failed to prove that labor costs were
not a factor in its decision to relocate unit work. The
Respondent was clearly focused on the efficiency and
productivity of its call center employees. These consti-
tute indirect labor costs.4
Nonetheless, we agree with the judge, for the reasons
stated in his opinion, that the Respondent proved that the
Union could not have offered labor-cost concessions
sufficient to alter the Respondent’s decision to relocate.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Embarq
Corporation, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified by substituting the following for
paragraph 2(e).
“(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representatives, copies of
the attached notice marked “Appendix”31 to the Union
and to all unit employees who were employed by the
Respondent at its Las Vegas, Nevada facility on, or at
any time since, June 6, 2008. In addition to physical
mailing of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means.

CHAIRMAN LIEBMAN, concurring.
Today we decide that the Respondent was not required
to bargain over its decision to close one of its facilities,
and to relocate bargaining unit work to another facility,
because the Union could not have offered labor-cost con-
cessions that would have changed the Respondent’s

4 Cf. Nu-Skin International, 320 NLRB 385, 385–386 (1995). As
the judge found, the mega-center concept was “primarily intended to
make the Respondent’s customer service and sales of products more
efficient.” (356 NLRB 985, 993.) Cindy Andrus, the Respondent’s
manager of strategic planning, testified repeatedly that being more
efficient meant that one support staffer was producing sales campaigns
for 250 consumer solutions representatives instead of just 100.
5 Member Hayes would affirm the judge’s finding that the decision
to close the Las Vegas call center as part of a companywide consolida-
tion of operations involved a “change in the scope and direction” of the
Respondent’s enterprise and was therefore not a mandatory subject of
bargaining under the principles set forth in First National Maintenance,
supra. In the alternative, he agrees that the Respondent’s failure to
bargain about this decision was lawful under the test set forth in Dubu-
que Packing, for the reasons the judge stated. Under these circum-
stances, and in the absence of a request by any party to revisit the
Dubuque standard in this case, Member Hayes finds it unnecessary to
address his concurring colleague’s views.
mind. Because the relocation decision was not a manda-
tory subject of bargaining, it follows that the Respondent
was not required to provide the Union with information
related to the decision. Today’s result follows from ex-
isting precedent, but it illustrates an anomaly created by
Dubuque Packing Co., 303 NLRB 386 (1991), enfd. in
pertinent part 1 F.3d 24 (D.C. Cir. 1993), cert. denied
511 U.S. 1138 (1994), which controls this case.
In Dubuque, the Board correctly observed that an em-
ployer “would enhance its chances of establishing” that
labor-cost concessions would have been fruitless “by
describing its reasons for relocating to the union, fully
explaining the underlying cost or benefit considerations,
and asking whether the union could offer labor cost re-
ductions that would enable the employer to meet its prof-
it objectives.” 303 NLRB at 392 (footnote omitted).
Providing requested information to the union is surely
part of this desirable process, because such information
will often be necessary for the union to bargain intelli-
gently. But current law does not compel the production
of information at the time when it is sought—or, indeed,
ever—if the Board, in hindsight, determines that conces-
sions would have made no difference, even where (as
here) no bargaining ever occurred and the union had no
opportunity to explore or influence the employer’s deci-
sion. In such cases, the Board’s determination is based,
to greater or lesser degree, on guesswork about the con-
cessions that a well-informed union would have offered
and about the employer’s response to those proposals. In
my view, neither the after-the-fact attempt to assess
whether bargaining might have been successful, nor the
attempt, years later, to restore the status quo in those cas-
es where the Board finds a bargaining violation, are con-
structive for any of the parties concerned.
The Board’s task would be easier, and, more im-
portantly, the Act’s policy of promoting collective bar-
gaining might well be better served, if employers were
required to provide unions with requested information
about relocation decisions whenever there was a reason-
able likelihood that labor-cost concessions might affect
the decision.
To encourage more constructive good-faith bargaining,
we might modify the Dubuque framework, for example,
by requiring the employer to timely advise the union
whether its contemplated relocation plan turns on labor
costs. If the relocation does not turn on labor costs, the
employer would be required to so advise the union and
explain the basis of its decision. If it does turn on labor
costs, the employer, upon a timely request, would be
required to provide the union with information about the
labor-cost savings and advise whether, in its view, the
union could make concessions that could change its deci-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
sion. If the employer provided the information, and the
union failed to offer concessions, the union then would
be precluded from arguing to the Board that it could have
made concessions. If the employer failed to honor in-
formation requests where labor costs are a factor, it
would be precluded from arguing that the union could
not have made concessions.
These possible modifications to the existing Dubuque
framework, under which a decision to relocate is prima
facie a mandatory subject of bargaining once the General
Counsel proves that the decision involved a relocation of
unit work unaccompanied by a basic change in the nature
of the employer’s operation, would have several ad-
vantages: they would encourage employers to classify
their decisions as they are being made, rather than forc-
ing the Board to do so long after the fact; they would
permit the union to know in a timely manner whether the
employer believes it has an obligation to bargain about
the decision or only its effects; they would encourage the
sharing of information that might facilitate bargaining
and lead to more efficient outcomes; and they would
encourage bargaining rather than an after-the-fact as-
sessment of whether bargaining might have been suc-
cessful, as is presently the case under existing law.
Because no party has asked the Board to revisit exist-
ing law, I join the decision. But in a future case, I would
be open to modifying the Dubuque framework in connec-
tion with union requests for information.

Joel C. Schochet, Esq., for the General Counsel.
F. J. Morton, Esq., Las Vegas, Nevada, for the Union.
Stanley E. Craven, Esq., and Julie E. Grimaldi, Esq., Overland
Park, Kansas, for the Respondent.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Las Vegas, Nevada, on De-
cember 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 Re-
spondent) 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

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.
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 com-
plaint, as the allegations found in those paragraphs were prem-
ised on the withdrawn charge. I approved the unopposed mo-
tion and permitted the withdrawal of those complaint para-
graphs, 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 alle-
gations as violations of Section 8(a)(1) and (5) of the Act.
(G.C. Ex. 1(o).) Counsel for the Respondent opposed the mo-
tion and denied the new allegations. I granted the motion over
counsel’s objection because I concluded that the new allega-
tions 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 amend-
ment, 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 evi-
dence, 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 de-
meanor 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 (called the Respondent’s
facility), where it has been engaged in the business of furnish-
ing 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 Re-
spondent performed services valued in excess of $50,000 in
States other than the State of Nevada.

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 re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings here, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
EMBARQ CORP. 985
Accordingly, I conclude that the Respondent is now, and at
all times material has been, and employer engaged in com-
merce 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 here, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
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 corre-
sponding lay off of the customer solutions representatives (the
CSRs) employed at that call center. The General Counsel con-
tends 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 Un-
ion’s performance of its duty as the collective-bargaining repre-
sentative 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 amend-
ed 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 Mainte-
nance v. NLRB, 452 U.S. 666 (1981); and Dubuque Packing
Company, Inc., 303 NLRB 386 (1991). Further, the Respond-
ent defends its actions by contending that it was willing to en-
gage in effects bargaining with the Union, which it acknowl-
edges 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 re-
quested 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 facili-
ty, which decision was not a mandatory subject of bargaining.
As to the alleged direct dealing with employees, the Respond-
ent contends its supervisor’s informal comments about other
job opportunities constituted a harmless exchange, unrelated to
the CSRs’ current terms and conditions of employment. Alleg-
edly, 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 pre-
decessors, including Sprint of Nevada. Those employees in-
clude the customer solutions representatives (the CSRs).4 The
most recent collective-bargaining agreement between the par-
ties is effective from March 15, 2006 through March 31, 2009.
(Jt. Exh. 1.)
At the time of the events in question, the Las Vegas call cen-
ter was one of two bilingual (English/Spanish) call centers op-
erated by the Respondent, with the other being a call center
located in Altamonte Springs, Florida. The CSRs were em-
ployed to receive and adjust customer complaints over the tele-
phone, 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 econom-
ic 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 2 years later. (Res. Exh.
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. Exh. 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 Respond-
ent’s economic future is not bright.
Cindy Andrus, manager of strategic planning, testified on
behalf of the Respondent. Her testimony was largely unrebut-
ted. 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 re-
maining. 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-

4 In its answer to the complaint, the Respondent admits that the fol-
lowing employees of the Respondent, called the Unit, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing 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
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 cen-
ter 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
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 Span-
ish language calls nationwide, 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 nationwide routed to the remaining bilingual call center
in Altamonte Springs, Florida. According to Andrus, Altamon-
te 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. An-
drus contends that this arrangement is much more efficient,
with approximately 80 percent of the new mega-center calls
being Spanish language calls (20 percent English), as compared
to the mix of calls prior to the closure of the Las Vegas call
center when Altamonte Springs handled only 50 percent Span-
ish language calls (50 percent 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 Ve-
gas. She acknowledged that the sales volume had increased in
Las Vegas prior to its closure, but that was not an issue, as cus-
tomer 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 lan-
guage calls received in that office could be serviced. Overall,
the number of bilingual CSRs has decreased since the Las Ve-
gas 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 nationwide bidding sys-
tem, 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,

6 All dates are in 2008, unless otherwise indicated.
Corwin Johnson, asking him to come to the Las Vegas facility
that morning. When Randall arrived for the meeting with John-
son, 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 affect-
ed 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 unidenti-
fied 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. Exh. 2.) Randall testified that this
was the document read to him at the meeting by the unidenti-
fied individual.
The document announces the closing of three call centers,
including Las Vegas, which was to close on August 8. It indi-
cates 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 assis-
tance to union represented employees will be offered per provi-
sions in the union contract.”8
Further, the document states that the closures are necessary
because the Employer “needs fewer call center representa-
tives.” The number of calls that are being received from cus-
tomers is “dropping dramatically.” Of particular significance,
the document goes on to say that, “In deciding which call cen-
ters should remain open, we select those that are in the strong-
est position to serve customers, support sales and are strategi-
cally located.”9
The document closes by thanking Randall for his continued
support. It also emphasizes that the CSRs are expected to con-
tinue 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 Cor-
win Johnson. (G.C. Exh. 3.) The letter indicated the Union’s
“desire to negotiate” regarding the “notification to close,” and

7 While there is disagreement by the witnesses as to whom this indi-
vidual was, it is unnecessary to make a specific identification, as it is
clear that he was representing the Respondent.
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. Exh. 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.
EMBARQ CORP. 987
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 Internation-
al’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 clo-
sure.10 The letter requested that the information be furnished to
the Union by no later than July 3, and indicated that this re-
quested information was “vital to IBEW Local 396.” (G.C.
Exh. 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 re-
sources to gathering the requested information.” Further, John-
son indicated with respect to “Item 7,” the current seniority list
and salaries for bargaining unit employees, that if the Union
“sincerely” lacked such information, he would send them a
copy of the current collective-bargaining agreement and senior-
ity list. (G.C. Exh. 5.) To date, the Respondent has not fur-
nished the Union with any of the requested information.11
The parties, thereafter, had one additional meeting of im-
portance 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 man-
ager for the Las Vegas facility, and Robert Herrera, the Re-
spondent’s assistant business manager. Unfortunately, the par-
ties disagree about certain statements made at this meeting,
with the Union’s witnesses having a somewhat different recol-
lection 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 com-
ing 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 re-
quested 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

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 Gen-
eral Counsel specifically does not allege as an unfair labor practice the
Respondent’s failure to furnish the Union with the information request-
ed in paragraph 7 of the Union’s letter, specifically that dealing with
the “seniority list and current salaries for the bargaining unit employ-
ees.”
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.
discuss. He repeated that he was coming only to discuss the
effects of the closure, but that if Randall brought the infor-
mation 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 dis-
cussed 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 una-
ble 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 any-
thing 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 Ran-
dall 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.
Randall’s recollection of the meeting was somewhat differ-
ent, 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 John-
son 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 Ran-
dall, 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 sched-
uled for the following day. It is important to note that in re-
sponse to a question from the undersigned as to whether in this
meeting with Johnson on July 9 he had ever specifically asked
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
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, alt-
hough 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 re-
quested 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 “con-
descending” attitude, and would simply not furnish the docu-
ments. 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 empha-
sized at the meeting, rather than the substance of the discus-
sions. 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, consid-
ering 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. . . .” Fur-
ther, the letter continued that “the closure is on track and the
Company continues to make final preparations for the an-
nounced closure date of August 8, 2008.” (G.C. Exh. 6.)
The final document involving these issues was a letter dated
August 1 from Randall to Johnson. In the letter, Randall “reit-
erates” 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. Exh. 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 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. Exh. 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 evi-
dence, 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 Re-
spondent over both the decision to close and the effects of that
decision. However, the Union was also clearly intent on get-
ting all the documents that it had requested from the Respond-
ent 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 deci-
sion to close, which it contended was a nonmandatory subject
of bargaining, but was willing to bargain over the effects of that
decision. Of course, effects bargaining were never held be-
cause 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 Co., 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 rep-
resenting 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 pro-
posed 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 partial-
ly 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

12 The Court did also find that under such circumstances, the em-
ployer had a duty to bargain with the union over the “effects” of its
decision on the members of the bargaining unit.
EMBARQ CORP. 989
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 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 per-
formed at the previous location is to be discontinued entirely
and not moved to a different location; or that the decision in-
volves “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
posthearing 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 cus-
tomers 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 previ-
ously handled from Las Vegas were simply routed to Altamon-
te Springs, or to the CSRs working from their homes. Howev-
er, as noted above, there was an overall reduction in the number
of bilingual CSRs employed by the Respondent nationwide.
It is the Respondent’s position that it has rebutted the Gen-
eral 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 plan-
ning, 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

13 The record evidence established that following the closure of the
Las Vegas call center and the lay off of its bilingual CSRs, a subse-
quent hiring of bilingual CSRs for Altamonte Springs and other loca-
tions still resulted in an overall reduction nationwide in the number of
bilingual CSRs.
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
nonmandatory subject of bargaining.
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 pre-
cisely 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 deci-
sion might be to terminate employees. Id. at 677–678. Thus, it
would seem the decision to close the Las Vegas call center was
a nonmandatory 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 cov-
ered 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 re-
location of that work as part of the Respondent’s new business
model was just such a situation. This was not primarily a mon-
ey saving program, as much as it was a restructuring of man-
power to create more efficient mega-center offices. According-
ly, I conclude that the decision to close the Las Vegas call cen-
ter involved a fundamental “change in the scope and direction”
of the Respondent’s business model. As such, it was a
nonmandatory subject of bargaining. The Respondent freely
admits that it refused to bargain with the Union over its deci-
sion 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

14 Since the beginning of 2006, the Respondent has closed two out-
sourced centers (TelCity and AFNI) and two Company-operated cen-
ters (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.)
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 con-
solidation of operations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
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 space to expand, where support staff and
other employee components were available, and in a geograph-
ical area near a large number of the Respondent’s customer
base. As Andrus credibly 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” be-
hind the closure of the Las Vegas call center was the Respond-
ent’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 that 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. Concomi-
tantly, 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 Re-
spondent. (G.C. Ex. 4.) This information request dealt with the
closure of the Las Vegas call center. The Respondent has re-
fused to furnish any of that information, taking the position that
it is not legally required to do so as the information request

16 Despite a significant amount of testimony from employee witness-
es regarding competition between Altamonte Springs and Las Vegas,
there was no credible, probative evidence that management took per-
formance into consideration when deciding which call center to close.
17 While extensive company documents were admitted into evidence
showing the nationwide 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 com-
plaint. Amended paragraph 13 was formerly paragraph 12. (G.C. Ex.
1(o).)
covers a nonmandatory subject of bargaining, namely the deci-
sion to close the call center.
In Disneyland Park and Disney’s California Adventure, 350
NLRB 1256 (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 collec-
tive 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 estab-
lished 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 information.” Further, the Board reiterat-
ed that where the union’s request for information pertains to
employees in the bargaining unit, that the “information is pre-
sumptively relevant and the [r]espondent must provide the in-
formation.”
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 re-
quested information outside the terms and conditions for the
recognized bargaining unit, and was, therefore, not relevant;
and because it dealt with a nonmandatory 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 per-
formance of its representational duties. Also, although infor-
mation 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.

19 As the Board has held that “potential or probable relevance is suf-
ficient to give rise to an employer’s obligation to provide information,”
it would seem the Union would have no difficulty reaching this stand-
ard. Disneyland, supra; Wisconsin Bell, Inc., d/b/a SBC Midwest, 346
NLRB 62, 64 (2005) (holding that a union’s burden under these cir-
cumstances is “not an exceptionally heavy one.”)
EMBARQ CORP. 991
I have already determined that the “decision” to close the
Las Vegas call center was not a mandatory subject of bargain-
ing. The Respondent’s refusal to bargain over the closure “de-
cision” 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 cas-
es. 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 law-
fully refusing to discuss the “decision” to close, would consti-
tute “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 infor-
mation regarding the “decision” to close the Las Vegas call
center, a nonmandatory 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 posthearing
briefs, both counsel for the Respondent and counsel for the
General Counsel make reference to paragraph 6, and its subpar-
agraphs, of the information request. (G.C. Ex. 4, par. 6A,B,&
C.) It is significant to note that said paragraph is the only num-
bered paragraph that counsel for the 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 infor-
mation, and Respondent would have done so.”
By the above exculpatory statement, counsel for the Re-
spondent 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 Cor-
win 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 Re-
spondent should have reasonably expected that, at a minimum,
the Union would want to bargain over the “effects” of the clo-
sure 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 docu-
mentation 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

20 As noted earlier, the complaint does not allege the failure to fur-
nish the seniority list and salaries of bargaining unit employees to con-
stitute a violation of the Act. (G.C. Ex. 4, par. 7.)
they would be referred, whether there were plans to hire addi-
tional CSRs to handle those calls, and whether there were ef-
forts underway to hire such employees. The Respondent’s
managers were quite capable of recognizing that such infor-
mation 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 al-
lowed 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 Re-
spondent.
It is very well established law that an employer has a duty to
bargain with a union representing its employees over the “ef-
fects” 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); Gan-
nett Co., 333 NLRB 355 (2001); also see Champion Interna-
tional Corp., 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 re-
sponse to the Union’s June 19 request for information relating
to the Respondent’s “decision” to close the Las Vegas call cen-
ter, as this was a nonmandatory subject of bargaining. Howev-
er, 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 para-
graph 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 com-
plaint. Correspondingly, I shall recommend that all other sub-
paragraphs 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 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 Cor-
win Johnson had specifically come to Las Vegas to meet with
the Union’s representatives to negotiate over the effects of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
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. Addi-
tionally, 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, con-
tending that Randall refused to have such discussions without
first being provided with the documents requested in the Un-
ion’s letter of June 19.
It does appear to be largely accurate that Randall was refus-
ing 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 follow-
ing 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” docu-
ments, 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 re-
fusal 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 since June 19,
2008,22 the Respondent has violated Section 8(a)(5) and (1) of

21 Had the Respondent furnished the Union with the effects docu-
ments and had the Union, thereafter, still refused to commence “ef-
fects” negotiations without all of the other documents in its information
request of June19, there would have been no unlawful refusal to bar-
gain by the Respondent.
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.
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 em-
ployees in the bargaining unit by soliciting employees to relo-
cate to a different call center operated by the Respondent.
However, in his posthearing brief, counsel for the General
Counsel is silent regarding this Section 8(a)(5) allegation. Sim-
ilarly, 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 Respond-
ent, in his brief, takes the position that any conversations be-
tween Wagy and unit employees constituted harmless exchang-
es 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 contra-
diction 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, 2 or 3 days after the Las Vegas CSRs were first in-
formed of the impending closure of that facility. It was appar-
ently 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 in-
dividual 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 un-
fair labor practice. The evidence was uncontested that the Re-
spondent posts notices of vacancies nationwide on its intranet
system. Any employee, including the CSRs from the Las Ve-
gas 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

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 conversa-
tion that he had with supervisor Sarah Sterling about Wagy holding a
“job fair,” but there was no allegation that such a “job fair” was actual-
ly held, or that there were any subsequent job offers to employees.
EMBARQ CORP. 993
Medford, Oregon, or asking whether employees would be in-
terested 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 condi-
tions of employment, including some type of a severance ar-
rangement.
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 encour-
agement 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 sure-
ly were not likely to erode the Union’s position as the employ-
ees’ 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 at-
tempt to bypass the Union as the collective-bargaining repre-
sentative. Therefore, I shall recommend that complaint para-
graph 10 be dismissed.26
CONCLUSIONS OF LAW
1. The Respondent, Embarq Corporation, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union, International Brotherhood of Electrical Work-
ers 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, 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 cer-
tified 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 col-
lective-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 vio-
lated Section 8(a)(1) and (5) of the Act:
(a) Failing and refusing to furnish the Union with the infor-
mation the Union requested in its letter of June 19, 2008, spe-
cifically paragraphs 6A, B, and C, related to the effects of the
Respondent’s decision to close the Las Vegas call center; and

26 This is renumbered paragraph 10, following the amendment at the
hearing.
(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.
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 un-
fair 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 re-
quirement 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 conse-
quences 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 deci-
sion 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 pertain-
ing 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 busi-
ness days after receipt of the Board’s Decision, or to commence
negotiations within 5 business days after receipt of the Re-
spondent’s notice of its desire to bargain with the Union; or (4)
the subsequent failure of the Union to bargain in good faith; but
in no event shall the sum paid to any 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
call center, with interest.27 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 repre-
sented 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 Un-
ion 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 guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Forthwith furnish the Union with the information re-
quested by the Union in its letter of June 19, 2008, specifically
paragraphs 6A, B, and C, related to the effects of the Respond-
ent’s decision to close the Las Vegas call center;
(b) On request, bargain in good faith with the Union as the
exclusive collective-bargaining representative of its CSRs at the

27 This remedy is as provided for in Transmarine Navigation Corp.,
170 NLRB 389 (1968), as modified by Melody Toyota, 325 NLRB 846
(1998).
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 436 fn. 3 (2008), citing to Carpenters Local 687 (Conven-
tion & Show Services), 352 NLRB 1016 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 recom-
mended 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.
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 un-
derstanding 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 addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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 ex-
pense, 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 inso-
far as it alleges violations of the Act not specifically found.
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 no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT do anything that interferes with these rights.
Specifically:

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
EMBARQ CORP. 995
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 representa-
ives (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 repre-
sented employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 repre-
sentative of our Las Vegas call center CSRs regarding the ef-
fects 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 neces-
sary 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 Board.

EMBARQ CORPORATION

Filename: 356125.doc
Directory: H:\VOLUMES\356\UNBIND\Unbind bat3
Template: C:\Documents and Settings\ghardy\Application Da-
ta\Microsoft\Templates\Editorial\NewD&O.dot
Title: BARBARA COPE, A SOLE PROPRIETOR,
Subject:
Author: OCIO
Keywords:
Comments:
Creation Date: 4/13/2011 10:49:00 AM
Change Number: 10
Last Saved On: 12/3/2012 9:49:00 AM
Last Saved By: philliar
Total Editing Time: 235 Minutes
Last Printed On: 7/10/2014 7:27:00 AM
As of Last Complete Printing
Number of Pages: 14
Number of Words: 10,989 (approx.)
Number of Characters: 62,642 (approx.)