Motor Rim & Wheel Service, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 866 (N.L.R.B. 1984)

866

MOTOR RIM & WHEEL SERVICE
Motor Rim & Wheel Service, Inc. and Freight
Checkers, Clerical Employees and Helpers,
Local 856, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 32-CA-3470
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZiMMERM'AN AND HUNTER.
On 31 March 1982 Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed 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 and to adopt the recommended Order,
as modified.
The dissent disagrees with the judge's interpreta-
tion of Arizona Electric Power Cooperative, 250
NLRB _1132, 1134 fn. 10 (1980), with respect to the
Respondent's duty to bargain over the continued
inclusion in the unit of Lisa White as confidential
secretary. The Board noted there that the respond-
ent's duty . to bargain concerning managerial em-
ployees, "would terminate on the expiration of the
current contract, provided that the Respondent
took appropriate steps at that time to contest their
continued inclusion in the unit." Ibid. at 1134.
We agree with the judge that the Respondent
simply did not take the requisite appropriate steps
to remove the position from the unit prior to exe-
cuting the next collective-bargaining agreement.
The record discloses that the Respondent, at most,
proposed a meeting to discuss removing White
from the unit. At that meeting the Respondent
argued that White was performing the duties of a
confidential employee and therefore fell within the
"confidential" exclusion in the contract. The Union
took the position that White was not a confidential
employee and that it would be improper for any
confidential employee hired by the Respondent to
perform unit work. The meeting ended without
any resolution of the matter. The matter was dis-
cussed briefly once again during negotiations with-
out any resolution of the matter. Thereafter the Re-
spondent did nothing toward removing White's po-
sition from the unit until after it had executed a
new collective-bargaining agreement on 20 Decem-
ber, except to inform White on 17 December (but
not the'Union) that it planned such a move.
Neither the bare proposal to remove the position
from the unit nor informing an employee that it
plans in the future to effectuate the removal consti-
tutes the "appropriate steps" necessary to free the
Respondent of its obligation to bargain over the
unit position. It. would have been a simple matter
for the Respondent to announce to the Union that
White was confidential and state unequivbcally that
she was being moved from the unit prior to signing
the new agreement. The duty to bargain would
have expired at that time.
The Respcindent contends in its- exceptions that
the make-whole remedy ordered as to employees
Sutton is inappropriate. The Respondent , relies,
inter alia, upon a stipulation entered into during the
unfair labor practice hearing regarding Sutton's
employment history. In regard to the stipulation,
the Respondent's attorney sought and obtained
from the General Counsel agreement that the Gen-
eral Counsel was not contending that any liability
should be imposed on the-Respondent by virtue of
Sutton's quitting her employment in September
1981. In light of that agreement, we grant the Re-
spondent's exception to the make-whole remedy
ordered for Sutton to the extent that it provides for
Sutton's reinstatement.
ORDER.
The National Labor Relations Board adopts the
recommended Order of the , administrative law
judge as modified below and orders that the Re-
spondent, Motor Rim & Wheel Service, Inc., San
Leandro, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(d).
"(d) Make Kathleen Sutton whole for any loss of
pay, benefits, or other rights and privileges occa-
sioned by her being bumped, which was a direct
consequence of the Respondent's unlawful treat-
ment of the position of confidential secretary as
outside the unit,. with backpay as provided in foot-
note 10 of the judge's decision."
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER HUNTER, dissenting.
Contrary to my colleagues, I would reverse the
judge and find that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by removing
White, the confidential secretary, from the bargain-
ing unit.
My disagreement with my colleagues lies primar-
ily with their interpretation, consistent with that of
the judge, of Arizona Electric Power Cooperative, 250
NLRB 1132 (1980), and its application to the facts
273 NLRB No. 115
MOTOR RIM . & WHEEL SERVICE 867
of the instant case. In Arizona Electic Power, the
Board found that the respondent employer violated
Section 8(a)(5) and (1) by, inter alia, withdrawing
recognition from the union for the load dispatcher
categories, which were covered by an existing col-
lective-bargaining agreement. Agreeing with the
judge that the load dispatchers were not supervi-
sors or managerial employees, but also noting that
the lead load dispatcher was stipulated to be a su-
pervisor, the Board based its finding on the ground
that no party is privileged to alter unilaterally the
scope of an established bargaining unit during the
term of a collective-bargaining agreement. Howev-
er, regarding the duty to bargain about an other-
wise excluded classification once the collective-bar-
gaining agreement has expired, the Board stated at
fn. 10:
Of course, were the load dispatchers found
, to be supervisors or managerial employees,
Respondent's duty to bargain concerning them
would terminate on the expiration of the cur-
rent contract, provided that Respondent took
appropriate steps at that time to contest' their
continued inclusion in the unit. In that regard,
because Respondent's duty to bargain concern-
ing the lead load dispatcher is based entirely
on his voluntary inclusion in the unit, this duty
will not extend past the expiration of the current
contract unless the parties again voluntarily agree
at the time to include him in the unit. [Emphasis
added.]
In the instant case, the judge found that under
Arizona Electric Power the Respondent could have
removed White—whom the judge found to be a
confidential employee—from the unit at the time
the preceding collective-bargaining agreement ex-
pired on 31 May 1980, 1 or during the subsequent
hiatus until execution of a successor collective-bar-
gaining agreement on 20 December. The judge fur-
ther found, however, that although the Respondent
expressed its desire to remove White from the unit
prior to 20 December, it did not take unilateral
action to that effect until after the new agreement
was in place, i.e., when employee Halla assumed
White's duties on 1 January 1981. Regarding foot-
note 10 of Arizona Electric Power, which he viewed
as having "elements . . . in conflict," the judge in-
terpreted it to mean that, on the expiration of a
collective-bargaining agreement, the status quo , in-
clusion of otherwise excluded classifications contin-
ues "absent the taking of 'appropriate steps' to the
1 All dates hereafter are in 1980 unless otherwise indicated
contrary." Presumably, the Respondent's conduct
after 31 May and prior to 20 December 'did not, in
the jduge's view, constitute appropriate steps to the
contrary. My colleagues now agree with that inter-
pretation and expressly find that the Respondent's
pre120 - December conduct did not free the Re-
spondent of its obligation to bargain over White's
position.
I read footnote 10 of Arizona Electric Power dif-
ferently than my colleagues do, and I would come
to an opposite _conclusion in this case. In my view,
footnote 10 means that an employer's duty to bar-
gain concerning an otherwise excluded classifica-
tion extends past the expiration of a collective-bar-
gaining agreement only if the parties voluntarily
agree to again include that classification in the unit.
Thus, given the judge's finding that White was a
confidential employee, the Respondent's duty to
bargain concerning White's position ceased on the
expiration of the collective-bargaining agreement
on 31 May. Although the Respondent concededly
did not remove White's position from the unit until
17 December—i.e., when the Respondent . told
White that her "position was being taken out of the
Union" and that Halla would become a "personal
confidential secretary"—there is no direct evidence
that the parties voluntarily agreed to include
White's position in the unit during the term of the
next collective-bargaining agreement.
Further, even assuming that the majority's inter-
pretation of footnote 10 is correct that the status
quo continues past the expiration of a collective-
bargaining- agreement unless the party seeking a de-
parture from the status quo takes appropriate steps
to the contrary, I would find that here the Re-
spondent did take appropriate steps to change the
status quo before the execution of the successor
agreement on 20 December. Thus, as found by the
judge, the Respondent expressed to the Union its
desire to remove White from the unit in a tele-
phone conversation on 31 July, at a meeting on
that subject on 18 August, and possibly also at a
bargaining session on .1 October. Such conduct, to-
gether with the Respondent's conduct in informing
White on 17 December that her position was being
removed from the unit, evidences both the intent to
take unilateral action, as well as the unilateral
action itself, before the execution of the successor
agreement. Under the cireumstances, , I wo-uld find
that the Respondent had no duty, to bargain about
White's position on 17 December, and that it there-
fore did not act unlawfully in removing her from
the bargaining unit at that time.
868 DECISIONS OF 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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
with Freight Checkers, Clerical Employees and
Helpers, Local 856, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America as the exclusive representative of all
employees in the appropriate office clerical unit,
which includes the confidential secretary, and WE
WILL NOT refuse to apply the current collective-
bargaining agreement with the Union, which is ef-
fective through 31 May 1983 to all of those em-
ployees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL bargain collectively with the above-
named Union as the exclusive bargaining represent-
ative of all employees in the aforesaid unit by'
storing Lisa White to the position she formerly oc-
cupied, now titled confidential secretary, should
the Union so request and she be willing; by 'restor-
ing that position to the unit;* and by applying the
terms of the collective-bargaining agreement to her
or whomever occupies that position.
WE WILL make whole Lisa White for any loss of
pay, benefits, or other rights and privileges occa-
sioned by our failure to restore her to the position
she formerly occupied on her return from leave.
WE WILL make whole Nancy Halla, and anyone
else who has occupied the position of confidential
secretary, for any loss of pay, benefits, or other
rights and privileges occasioned by our unlawful
treatment of that position as outside the unit.
WE WILL make Kathleen Sutton whole for any
loss of pay, benefits, or other rights and privileges
occasioned by her being bumped, which was a
direct consequence of our unlawful treatment of
the position of confidential secretary as outside the
unit.
WE WILL make the Union whole, with interest,
for any loss of dues and fees occasioned by our un-
lawful treatment of the position of confidential sec-
retary as outside the unit.
MOTOR RIM & WHEEL SERVICE, INC.
DECISION
STATEMENT ' OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matter was tried before me in Oakland, California, on
December 14, 1981, and January 18, 1982.
The charge was filed March 12, 1981, and amended
April 29, by Freight Chedkers, Clerical Employees and
Helpers, Local 856, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Union). The complaint issued April 30, and alleges
in essence that Motor Rim & Wheel Service, Inc. (Re-
spondent) has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (Act) since January 1, 1981,
by unilaterally removing a position from the bargaining
unit.
I. JURISDICTION
Respondent, a California corporation with headquar-
ters in Montebello and a branch in San Leandro, is en-
gaged in the nonretail sale of automotive wheels and re-
lated items. It annually sells to and purchases from out-
side California goods' and materials of I value exceeding
$50,000, and thus is an employer engaged in commerce
within Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5)
of the Act.
IV. THE ALLEGED MISCONDUCT
A. Facts
The Union has represented the office clerical employ-
ees at Respondent's San Leandro branch since 1962. The
current bargaining agreement covering those employees
was executed December 20, 1980, went into effect the
preceding June 1, and runs through May 31, 1983.' That -
agreement, in common with each of seven predecessors
since 1962, contains this clause:
The following classifications of employees. are
specifically excluded from the coverage of this
Agreement.
(a) Confidential employees, supervisory and pro-
fessional employees . .
Lisa White was the secretary, for the San Leandro
branch manager from March 1978 through December 17,
1980, when she took maternity leave. She was classified
as a stenographer and considered in the bargaining unit.
On January 1, 1981, Nancy Halla succeeded to White's
exact duties. Halla, however, was given the title of "con-
1 The agreement defines the unit as "all employees covered by this
agreement " It thereafter lists three groups of classifications - group I,
consisting of telephone operator, general clerk, accounts payable clerk,
accounts receivable clerk, and card inventory clerk, group II, consisting
of comptometer operator, stenographer, assistant pnce clerk, commission
report payroll clerk, and purchasing clerk, and group III, consisting of
lead office clerk It is concluded that this is an appropnate unit for pur-
poses of the Act
MOTOR RIM & WHEEL SERVICE 869
fidential secretary" and deemed by Respondent to fall
within the above clause excluding confidential employees
from the coverage of the agreement—and, by . implica-
non, from the unit Respondent never before had so
titled or treated any of the clerical employees at the San
Leandro branch.
The parties have stipulated that, as a matter of law,
Halla indeed did become a confidential employee upon
assuming White's duties. Although a parallel stipulation
concerning White is not in the record, it would be anom-
alous—given the Halla stipulation and the unquestioned
coincidence_ of their duties—not to regard her as likewise
having been a confidemtial employee before her leave.
White therefore shall be so regarded for purposes of this
decisiOn.2
San Leandro Branch Manager Stan De Lima, in-
formed White by memorandum dated October 14 that
her request for maternity leave had been approved. He
assured her, in the same memorandum that she would be
replaced "in [her] position as secretary on a temporary
basis only, pending [her] return to work." But then, De-
cember 17—the day before White took leave—De Lima
told her that her "position was being taken out of the
union", that Halla, as her replacement, had agreed to
become his "personal confidential secretary"; and that,
when White returned, she would be an inventory clerk.
Halla was then an inventory clerk. That is a bargaining-
unit classification.
White consequently was not restored to her former
duties upon returning to work in March 1981, instead
"bumping" Kathleen Sutton, an inventory clerk. As an
inventory clerk, White received 12 cents per hour less
than she would have received had she been restored to
her pre-leave position. Halla meanwhile continued under
the title of confidential secretary, performing White's
former duties. Sutton, hired in May 1978, was more
senior than Halla, who was hired in April 1979. White,
as earlier noted, began in March 1978. The agreement
provides.
In the event of a layoff, . . . regular employees
shall be . . . laid off based upon their seniority and
qualifications to perform the work.
When White was hired in 1978,' the branch manager at
that time, W. E. Wall, asked her to be his confidential
secretary and leave the unit. She agreed, and requested
that the Union remove her from membership. The Union
opposed the idea, however, and it was dropped. De
Lima made the same proposal to White when he suc-
ceeded Wall. She squelched it, saying that "the Union
benefitted [her] better."
Nothing further happened in that regard until July 31,
1980, when Respondent's attorney Robert Kristoff tele-
phoned -Union President Ben Leal proposing that they
"get together to discuss removing White from the bar-
gaining unit, because she [is] a confidential employee."
Respondent, in its bnef, urges White's confidential status White cre-
dibly testified that about 20 percent of her day, before going on leave,
consisted of "typing and whatever the demands were from" the branch
manager, the balance being taken up with bargaining unit functions of a
plainly nonconfidential character
Leal agreed to a meeting, but said it was the "Union's
position" that all work of a confidential nature was done
at Respondent's headquarters in Montebello, and that
White therefore "was not a confidential employee and
would have to stay in the bargaining unit."
The agreed-upon meeting was held August 18 between
Kristoff and Kathi Leal, a business representative for the
Union and Ben's daughter. Kristoff stated to her, much
as he had to Ben, that Respondent wanted one of its
clerical positions to be accorded confidential status, out-
side the unit. Leal asked what the duties of the position
would be. Kristoff answered,"The same as Lisa White's"
He elaborated that:
[White] was performing confidential duties, and
that, as such, she could be removed from the bar-
gaining unit, because confidential employees were
excluded from the bargaining unit under the present
contract.
Leal, first disagreeing with Kristoff, interrupted the
meeting to telephone the shop steward at the San Lean-
dro branch, obtaining a list of White's duties Returning
to Kristoff, she recited the various things White did be-
sides typing, including payroll, stock records, billing, and
catalog sheets Leal claims to have declared that while it
perhaps would be acceptable for the proposed position to
embody typing, it would not be "right" that it entail "all
these other items" of unit work. Kristoff testified, on the
other hand, that Leal objected to the performance of any
unit work by a nonunit confidential secretary. 3 In any
case, Kristoff countered that "nothing in the contract
. . . said she could not do bargaining unit work." Leal
held firm, and the meeting ended with Kristoff saying he
would be "getting back in touch."
The immediate past agreement expired May 31, 1980.
Bargaining leading to the current agreement took place
September 16, October 1, and November 4. Agreement
in principle was reached October 1, the November 4
meeting being for resolution of nonsubstantive technical
details. As previously mentioned, the agreement was exe-
cuted December 20, retroactive to June 1. According to
Kathi Leal, the subject of the confidential secretary came
up in none of these meetings, nor in any other conversa-
tions during the negotiation and execution of the new
agreement. Kristoff and Kenneth Ballard, Respondent's
chief spokesperson, testified, however, that Ballard
broached the matter during the October 1 meeting, that
the resulting discussion consumed about 5 minutes in an
all day session, and that the exchange was the same as it
had been August 18 between Kristoff and Lea1.4
Upon succeeding to White's duties, Halla wrote the
Union, "requesting a withdrawal from [membership] ef-
fective 1/1/81, in order to take another position at my
employment" The current agreement contains a conven-
tional '31-day union-security clause. This prompted Kathi
Leal to telephone Halla, ascertaining that, apart from the
change in title, her job was identical to White's. Leal
then called De Lima, obtaining confirmation that Halla
The result herein does not require resolution of this conflict
4 See fn 3
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been made his confidential secretary. De Lima
added that because of this development White would not
be restored to her former duties, but instead would
"bump" someone other than Halla when she returned.
This was the Union's first intimation that the position
had been removed from the unit.
On January 9, in the aftermath of the conversation just
described, the Union filed a grievance, "protest[ing] the
change . of status for Halla from collective bargaining
[unit] to management." A grievance meeting followed on
February 6. Kathi Leal asked where Respondent "got
the right to come in and change someone's title and
[thereby] remove them from the bargaining unit." Kris-
toff countered that Respondent had "every right to have
a confidential secretary," and that she could "continue to
perform the same amount of unit work that she had pre-
viously performed." Leal assertedly said that she could
consent to the confidential secretary's "tak[ing] the
typing" and doing payroll without losing nonunit status,
whereas Kristoff testified that Leal insisted that the posi-
tion embrace no unit work. 6 Regardless, the meeting
failed to bring a resolution.
On March 20, White having bumped Sutton rather
than Halla, the Union filed another grievance, this time
protesting that Respondent had breached the seniority
clause of the agreement. The parties presently. agreed to
hold that grievance "in abeyance" pending disposition of
the present unfair labor practice charge, which, as earlier
mentioned, had been filed March 12.
Nothing further having happened with regard to either
grievance, the Union informed Respondent by letter
dated December 10, 1981, that it "is withdrawing the
two grievances," instead "pursu[ing] its remedies
through" the present case.
B. Conclusion
Summary
(a) All of Respondent's agreements with the Union
have contained a clause excluding confidential employees
from their coverage and, by implication, from the unit.
(b) Although White was a confidential employee
during the approximately 2-1/2 years she was on the
payroll before her leave, Respondent never regarded her
or anyone else as a confidential employee until Halla as-
sumed her duties on January 1, 1981.
(c) Respondent's removal of the White/Halla position
from the unit happened without union consent, or even
prior knowledge, some 11 days after execution of the
current agreement and 7 months into its retroactively de-
fined term.
It is concluded in these circumstances, because of-com-
pelling Board concern for the stability of bargaining rela-
tionships, that Respondent violated Section 8(a)(5) and
(1) substantially as alleged. Carolina Telephone Co., 258
NLRB 1387 (1981); Arizona Electric Power Cooperative,
250 NLRB 1132 (1980).
Given the exclusionary clause in the expired agree-
ment and White's confidential status, Respondent proper-
ly could have removed her from the unit, without union
5 See fn 3, supra
consent, at the time of expiration; or, apparently, during
the subsequent hiatus until execution of the current
agreement: Arizona Electric Power Cooperative, 250 NLRB
at 1133,-1134 fn. 10. 6 But, while such a desire was ex-
pressed to Ben Leal on July 31, to Kathi Lenl on August
18, and possibly during the October 1 bargaining session,
Respondent, seemingly deterred by a belief that union
consent was a necessary precondition, even between
agreements, neither evinced an intent to take unilateral
' action nor took such action until after the current agree-
ment was in place.
Rejected is Respondent's argument, based on 'Boeing
Co., 212 NLRB 116 (1974), that the removal of Halla
from the unit was a permissible rectification of a mistake
in classification. Wall's and De Lima's overtures to
White to be a confidential secretary, outside the unit;
Knstoff s July and August 'appeals to Ben and Kathi
Leal; and Ballard's professed remarks to the Union on
October 1, all belie a mistake of fact licensing such con-
duct as a corrective measure.
Rejected, as well, are Respondent's contentions that its
conduct was sanctioned by an impasse in bargaining over
the issue, by waiver based on Kathi Leal's posture as
concerns the issue, and by waiver implicit in assorted
'clauses in the current agreement. The questions of im-
passe and of Kathi Leal's conduct are irrelevant to the
bedrock issue whether Respondent took appropriate
action at the right time, i.e., before the current agree-
ment , was executed. And, regarding the argument of
waiver based on contract language, what could be more
enabling than the literal exclusion of confidential em-
ployees from the unit? Yet, as the cited- authorities show,
even that does not permit unconsented alteration of the
unit during the, term of an agreement.
CONCLUSION OF LAW
By removing the confidential secretary from the bar-
gaining unit, as found herein, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
On these findings of fact and conclusion of law and on
the entire record, I issue the following recommended7
Fn 10 states at one point that an employer's duty to bargain concern-
ing people in excluded classifications who nonetheless have been treated
as in the unit "would terminate on the expiration of the current contract,
provided-that [the employer]took appropnate steps at that time to con-
test their continued inclusion in the unit" The same footnote later states
that the duty to bargain concerning such people "will not extend past the
expiration of the current contract unless the parties again voluntarily
agree at that time to include [them] in the unit" The question thus arises
whether the burdeii is on the party seeking departure from the status quo
to take positive action, or on the party seeking its continuation to procure
express agreement to that effect If the latter is so, the requirement was
not satisfied in this case, and White, not to mention Balla, was outside
the unit covered by the current agreement To read the elements of fn 10
as in conflict is to be avoided, however,- if those elements plausibly can
be reconciled by an alternative reading Applying this basic tenet of con-
struction, it is concluded that the Intended meaning of fn 10 is that
agreement to continuation of the status quo is to be inferred absent the
taking of "appropnate steps" to the contrary
If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
MOTOR RIM WHEEL SERVICE 871
ORDER
Respondent, Motor Rim & Wheel Service, Inc., San
Leandro, California, its officers„ agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Freight
Checkers, Clerical Employees and Helpers, Local 856,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Union) as the
exclusive representative of all employees in the appropri-
ate office clerical unit, which includes the confidential
secretary, and from refusing to apply the current collec-
tive-bargaining agreement with the Union, which is ef-
fective through May 31, 1983, to all of those employees.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take this affirmative action to effectuate the policies
of the Act.
(a) Bargain collectively with the Union as the exclu-
sive bargaining representative of all employees in the
aforesaid unit by restoring Lisa White to the position she
formerly, occupied, now titled confidential secretary,
should the Union so request and she be willing; by re-
storing that position to the unit; and by applying the
terms of the collective-bargaining agreement to her or
whomever occupies that position.
(b) Make whole Lisa White' for any loss of pay, bene-
fits or other rights and privileges occasioned by Re-
spondent's failure to restore her to the position she for-
merly occupied upon her return - from leave.8
(c) Make whole Nancy Halla, and anyone else who
has occupied the position of confidential secretary, for
any loss of pay, benefits, or other rights and privileges
occasioned by Respondent's unlawful treatment of that
position as outside the unit.8
8 Backpay shall be computed with interest as prescribed in Florida
Steel Corp, 231 NLRB 651 (1977) See generally, Isis Plumbing Go, 138
NLRB 716 (1962)
9 See fn 8, supra
(d) Offer to Kathleen Sutton immediate and full rein-
statement to the position she occupied before being
bumped by Lisa White, or, if that position no longer
exists, to a substantially equivalent one, and make her
whole for any loss of pay, benefits, or other rights and
privileges occasioned by her being bumped, which was a
direct consequence of Respondent's unlawful treatment
of the confidential 'secretary as outside the
(e) Make the Union whole, with interest, for any loss
of dues and fees occasioned by Respondent's unlawful
treatment of the position of confidential secretary as out-
side the unit."
(f) Preserve and, on request, make available to the
Board or its agents for examination and cdpying,-all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order. .
(g) Post at its San Leandro, California facility copies
of the attached notice marked "Appendix." 12 Copies of
the notice, on forms provided by the Regional Director
for Region 32, after' being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places ihcluding all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing within 20
days. from the date of this Order what steps the Re-
spondent has taken to comply.
'° Backpay shall be computed in accordance with F W Woolworth
Go, 90 NLRB 289 (1950) Interest shall be computed as set forth in the
fn 8, supra
" Dura-Vent Corp, 257 NLRB 430, 433 (1981) Interest shall be com-
puted as prescribed in fn 8, supra
" 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board'