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

National Labor Relations Board - Board Decisions

Feb 17, 2016

363 NLRB No. 122 (N.L.R.B. 2016)

363 NLRB No. 122
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Apogee Retail, NY, LLC d/b/a Unique Thrift Store
and Local 338, RWDSU/UFCW. Cases 02–CA–
133989, 02–CA–134059, and 02–CA–137166
February 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On July 30, 2015, Administrative Law Judge Raymond
P. Green issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed a brief in support of the judge’s decision,
and the General Counsel filed a reply 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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to dismiss the complaint in its entirety.4

1 The General Counsel has not excepted to the judge’s finding that
the Respondent did not engage in unlawful surveillance in violation of
Sec. 8(a)(1).
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the judge’s findings.
In adopting the judge’s factual findings, we do not rely on (1) his
statement that David Kloeber, the Respondent’s CEO, gave “unrebut-
ted” testimony regarding Union Representative Neil Gonzalvo’s re-
sponse at the parties’ June 26, 2014 meeting to the Respondent’s con-
cerns about the proposed union security and check-off provisions; and
(2) his statement that the parties agreed to a 24-cent-per-hour raise for
the first year of the contract and the other calculations and assertions set
forth in footnote 3 of his decision. The parties aver (and the evidence
supports) that they agreed to a 25-cent-per-hour raise. Nonetheless, we
find that these errors do not affect the result in this case.
3 The Board agrees that under the facts of this case, the Respond-
ent’s statements to employees that wages were frozen pending the
outcome of negotiations did not violate Sec. 8(a)(1) of the Act. See
Flexsteel Industry, 311 NLRB 257, 257 (1993) (finding lawful the
employer’s statement to employees that it could not unilaterally give a
wage increase during contract negotiations); Mantrose-Haeuser Co.,
306 NLRB 377, 377–378 (1992) (same, where employer’s literature
stated that “while bargaining goes on, wage and benefit programs typi-
cally remain frozen until changed, if at all, by contract”).
In adopting the judge’s finding that the Respondent did not bargain
in bad faith, we do not rely on his statement that “I know of no other
type of mandatory contract proposal that would require, as a matter of
law, that the proposal’s opponent justify or offer a reason for its opposi-
tion.” We note that “[g]ood faith bargaining . . . does require that par-
ties justify positions taken by reasoned discussions[.]” Blue Jeans
ORDER
The complaint is dismissed in its entirety.
Dated, Washington, D.C. February 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Moriah H. Berger Esq., for the General Counsel.
Lewis Goldberg Esq. and Josh Beldner Esq., for the Respond-
ent.
Jae W. Chun Esq. and William Anspach Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on March 31 to April 6, 2015, in New York, New York.
The charges and amended charges in this proceeding were filed

Corp., 177 NLRB 198, 206 (1969), enfd. sub nom. Amalgamated
Clothing Workers of America v. NLRB, 432 F.2d 1341 (D.C. Cir. 1970).
Therefore, the “failure to define, explain, or advocate [a] position”
during bargaining should be considered as evidence of a party’s lack of
good faith. Palestine Coca Cola Bottling Co., Inc., 269 NLRB 639,
645 (1984). Here, however, we agree with that judge that, based on the
Respondent’s overall course of conduct, the General Counsel has failed
to establish that the Respondent bargained in bad faith.
Member Miscimarra believes that a failure to explain a bargaining
position may be evidence of bad-faith bargaining, but this depends on
the circumstances of the particular case. For example, he believes it is
permissible under Sections 8(a)(5) and 8(b)(3) for employers or unions
to insist on certain proposals that may be deemed critical for reasons
that the negotiators may be reluctant or unwilling to disclose, and it is
likewise lawful for a party to insist on certain proposals exclusively
because it believes sufficient leverage exists to force the other party to
agree. In these and other circumstances, Member Miscimarra believes
a failure to explain positions taken in bargaining would not necessarily
tend to establish an intention to frustrate agreement, which is the touch-
stone of bad-faith bargaining. See, e.g., 88 Transit Lines, 300 NLRB
177, 178 (1990); Reichhold Chemicals, 288 NLRB 69, 69 (1988). Cf.
NLRB v. American National Insurance Co., 343 U.S. 395, 404 (1952)
(“[T]he Act does not encourage a party to engage in fruitless marathon
discussions at the expense of frank statement and support of his posi-
tion.”).
4 Although the judge concluded that the complaint should be dis-
missed, he inadvertently failed to include in his decision a recommend-
ed order that the complaint be dismissed.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on August 4, 5, September 19, November 19, and December 4,
2014. The complaint which issued on January 30, 2015, al-
leged in substance:
1. That in or about April, mid-June and August 2014, the
Respondent by Naomi Santana aka Naomi Nazario and Sameh
Mekhueil, told employees (a) that they had not received and
would not receive wage increases because they were represent-
ed by the Union, (b) that if they wanted raises they should find
other jobs, and (c) that they would receive wage increases if
they rejected union representation.
2. That in or about mid-June 2014, the Respondent, by
Mekhueil told employees that employees should work else-
where if they wanted higher wages.
3. That on or about August 8, 2014, the Respondent by a se-
curity guard engaged in surveillance of employee union activi-
ty.
4. That during negotiations from July 9 through August 4,
2014, the Respondent sought to avoid reaching an agreement
by (a) refusing to explain its reasons why it would not agree to
the Union’s proposals for union security and dues-checkoff
clauses; (b) failing to respond to the Union’s proposals dated
July 24, 2014; and (c) by its overall conduct showing bad faith
bargaining.
At the hearing, the Respondent admitted that Naomi Santana
was an agent within the meaning of Section 2(13) of the Act.
In this regard, the evidence showed that she was trained and
authorized to speak on behalf of the Employer to answer em-
ployee questions regarding the Union and/or wage increases.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(1), (2),
(6) and (7) of the Act. I also find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Negotiations and the Alleged 8(a)(5) Violation
The Respondent, which is based in Phoenix, Arizona, is
owned by David Kloeber. It operates 11 retail stores in the
New York Metropolitan area that sell second hand clothing,
jewelry, accessories and furniture. One of the New York City
managers is Dave Morley and the store located in the Bronx, is
run by Sameh Mekhueil. The head of security is Paul Dalton.
The complaint alleged that Naomi Santana is a supervisor with-
in the meaning of Section 2(11) of the Act. Nevertheless, be-
cause the Respondent admits that she is its agent pursuant to
Section 2(13), it is unnecessary to make a finding as to her
supervisory status inasmuch as any statements that she made to
employees about the Union were authorized by the Company
and are binding on it.
Originally back in 2013, the RWDSU organized the employ-

1 The General Counsel’s unopposed motion to correct the transcript
is granted.
ees of the Bronx store which employs approximately 60 people
in positions including production workers, maintenance work-
ers and cashiers. In April 2013, the RWDSU won a Board
conducted election and was certified. Thereafter, bargaining
took place for several months between that labor organization
and the Employer.
In late 2013 or early 2014, the RWDSU decided to transfer
its bargaining rights to Local 338 and a meeting was held with
the Employer with the object of obtaining the Respondent’s
consent to the transfer. This was opposed and a charge was
filed in Case 02–CA–104237. That charge was thereafter re-
solved by a non-Board settlement dated March 28, 2014,
wherein the Respondent agreed to recognize and bargain with
Local 338 for the previously certified bargaining unit.
On April 25, 2014, the Respondent’s attorney, Stuart Wein-
berger, sent an email to Neil Gonzalvo, Local 338’s chief nego-
tiator, forwarding the previous contract proposals that had been
made by the Company and the RWDSU during the earlier ne-
gotiations.
On May 1, 2014, the first negotiation session was held be-
tween the Company and Local 338. At this meeting, the parties
reviewed the previous contract proposals and Gonzalvo stated
that he would prepare and tender a new union contract proposal
before the next meeting. To the extent that there was any dis-
cussion of article 3, which contained union security and dues-
checkoff clauses, Weinberger indicated that the earlier
RWDSU proposal was illegal because it did not give employees
the full 31 days before having to become a union member.
Gonzalvo stated that he would prepare an alternative article 3.
On May 21, 2014, Gonzalvo had a lengthy phone conversa-
tion during which he emailed a series of contract proposals, not
including a new union security and dues-checkoff provision.
By email dated June 17, Gonzalvo sent a contract proposal
containing a revised article 3. This consisted of four para-
graphs as follows:
1. A standard union security language but with 90 days to
join from the effective date or the execution date of the contract
which is later.
2. A union dues-checkoff provision whereby upon receipt of
written authorizations, the Employer would deduct union
dues/fees from the wages of its bargaining unit employees.
3. An agreement whereby the Employer agreed to deduct
contributions to a Political Action Committee from those em-
ployees who voluntarily authorized such deductions.
4. A provision that permits the Company to hire whoever it
wants.
The proffered contract also contained a wage proposal that
called for a $1-per-hour increase during the first year of the
contract for employees who completed a trial period; a $1-per-
hour raise for the second year of the contract; and a $1-per-hour
raise for the third year of the contract.
On June 26, 2014, the negotiators met at the office of the
Union’s counsel. This meeting was held with Gonzalvo being
the chief negotiator for the Union and Weinberger and compa-
ny owner Kloeber representing the Employer.
During the June 26 meeting, Mr. Kloeber questioned
Gonzalvo as to what exactly a union-security clause would
require. After Weinberger explained that a union security
APOGEE RETAIL, NY, LLC 3
clause requires, as a condition of continued employment, union
membership after the stated time, Kloeber raised a number of
questions. One issue was whether the Company could be sued
if it was forced to discharge an employee who failed to pay
union dues.2 There were other issues raised by Kloeber includ-
ing his observation that many of his employees were paid the
minimum wage and even with a wage increase many, if they
had dues deducted from their wages, would still be earning at
or below the minimum wage.3 Additionally, Weinberger stated
that in his view the Political Action Committee provision might
violate New York State law. The unrebutted testimony was
that Gonzalvo replied that these were great questions and that
he would get back to them. He didn’t.
On June 27, 2014 an employee named Ramon Steffani filed
a petition in Case 02–RD–131679 seeking to decertify the Un-
ion. Thereafter, the Acting Regional Director approved a Stipu-
lated Election Agreement on July 11, 2014. The election was
scheduled for August 8, 2014, between the hours of 11 a.m. and
2 p.m.
On July 9, Gonzalvo sent a modified contract proposal to
Weinberger. This did not contain any modification of the pre-
viously tendered union security and dues-checkoff provisions.
(article 3) In this proposal, the Union asked for a 75-cent-per-
hour increase for the first year and a 25-cent-per-hour increase
for the second and third years of a contract.
The parties met again on July 9 at the offices of the Union’s
attorney. Attending for the Company were Kloeber, Wein-
berger and Annette Aletor, an associate in Weinberger’s office.
Attending for the Union were Gonzalvo, Yomaira Franqui and
the Union’s attorney, William Anspath. After reviewing the
various contract proposals, Gonzalvo asked if the Company
was going to agree to the union security proposals. Weinberger
said that the Company would not agree at that time. When
Anspach pressed Weinberger as to why the Company would
not agree, Weinberger responded that he did not have to agree.
Not much else was said at this meeting and there was no dis-
cussion by either side about the various questions or issues that
had been raised by Kloeber at the June 26 meeting.
On July 17, Gonzalvo sent another modified contract pro-
posal which although modifying certain issues, did not modify
the Union’s proposed union security and dues-checkoff provi-
sions in article 3. However, Gonzalvo did indicate that the
section of article 3 relating to political action contributions was

2 Indeed, an employer can be held liable in some situations where it
accedes to a union’s request for an employee’s discharge pursuant to a
union security clause. For example, if a union claims dues for time
when an employee is not employed by the employer, a union and the
employer could be jointly and severally liable for the discharge of an
employee who hadn’t paid dues during his period of absence.
3 Union dues for full-time employees were $38 per month. It was
somewhat less for part timers. As of the June 26 meeting, the parties
had agreed to a 24-cent-per-hour raise for first year of a contract and
this would have amounted to a $40 per month increase for an employee
who worked 40 hours per week. Thus, a net gain of $2 per month. It
would also mean that for those employees who worked overtime, they
would have a larger net gain. However, for employees who worked 32
to 40 hours per week, they would have incurred a net loss if they had to
pay union dues.
open. Shortly thereafter, Weinberger replied that he would
review the proposal and respond the following day.
Notwithstanding Weinberger’s statement that he would re-
spond by July 18, he didn’t find the time to do so and Anspach
called him on July 22. During that call, Weinberger expressed
concern that the political action section of article 3 could vio-
late New York law.
On July 23, Weinberger emailed a contract proposal with
some minor modifications but rejecting all of article 3.
On July 24, Gonzalvo and Anspach held a conference call
with Weinberger. During this call, Anspach stated that the
Union was agreeing to the Company’s version of certain pro-
posals but that the Union wanted to include the previously ten-
dered union security and dues-checkoff clauses as they ap-
peared in the Union’s contract proposal. Weinberger responded
that he would speak to Kloeber.
On Friday, July 25, after speaking to Kloeber, Weinberger
sent an email to Anspach in which he stated:
I want to talk to Dave regarding what we discussed yesterday.
However, I want to be clear on what was proposed and what
was not proposed. You stated that it was a package. Can you
or Neil indicate the changes that the union would agree to in
the document that I sent you. It will only take a few minutes
to do so. There are a couple of other issues to deal with. First,
I will discuss with the company language on part-timers. Se-
cond I will discuss the union security clause with the compa-
ny.
It should be noted that by July 25, the Union had conceded
and agreed on all open issues, except for the union-security and
checkoff clauses, and the parties had agreed to a series of small
wage increases. As to the part-timer question, this was not
really an issue because the parties had agreed on the concept
but had not yet put it into appropriate language.
Anspach expressed the opinion that as there was agreement
on all open issues except for article 3, there was no need for the
Union to give a written response, as requested by Weinberger.
But lawyers act like lawyers, and I see nothing nefarious in
Weinberger’s request for a written document nailing down
what had been agreed to. In any event, Weinberger’s email was
sent at 4:52 p.m. and Anspach may have received it either on
that Friday or on the following Monday, July 28.
On July 28, Anspach sent an email to Weinberger detailing
nine items where the Union had agreed to the Company’s pro-
posals. This email also withdrew that portion of article 3 relat-
ing to the political action fund. This, therefore made it explicit
that from the Union’s point of view, the only remaining open
issue was article 3 insofar as the union security and dues
checkoff provisions.
Weinberger and Kloeber testified that when this last email
was sent to Kloeber, he told Weinberger that they still had not
gotten any answers to the issues raised at the June 26 meeting
and that these should be resolved. Kloeber testified that he was
particularly concerned that given the agreed upon wage in-
creases, some employees would be earning less than the mini-
mum wage if they were required to pay union dues.
Between July 28 and July 30, Anspach and Weinberger ex-
changed some emails discussing who was at fault for not re-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponding quickly. In the context of this case, this is not rele-
vant.
On July 30, at 8:44 a.m. Anspach sent an email to Wein-
berger that stated:
As of last Thursday, we made it clear that there are no remain-
ing issues other than the Union Security/Checkoff, (you can
provide language on the part-timers, but we’ve already agreed
to accept your current policy).
Now nearly a week later, we still need to know your client’s
position on the Union Security/Checkoff. I have yet to hear
any reason for your client to reject those, particularly since we
don’t live in Alabama.
On July 30 at 11:39 p.m., Weinberger responded:
As I am sure that the Union is aware, there are contracts with
unions that do not have dues-check off. I think the Union is
aware that many employers do not wish to get involved in the
check-off of dues for many reasons, including but not limited
to, that they do not want to [be] responsible from checking off
dues and the issues that arise with checking off the dues.
While the union security provision is a mandatory subject of
bargaining, the NLRB as recently as 2013 said the employer
is not required to agree to a union security provision that is
proposed by the Union. The ALJ in that case held that “[A]n
employer may insist on not having a union-security clause at
all..”. Your statement that New York is not Alabama does not
mean there are not contracts with unions that do not have a
union security clause as proposed by the Union. I am sure that
the Union is aware of the reasons why employers have not
agreed to union security clauses that have been proposed by
the Union.
In any event, the Company is willing to bargain with the Un-
ion and discuss these provisions in accordance with applicable
law.
On July 31 at 8:38 a.m., Anspach sent an email to Wein-
berger which stated:
Since we’re down to one issue, (Union Security/Union
Checkoff), we’d like to schedule a conference call today with
you and your client to try to resolve it. Please indicate your
availability. Thank you.
Weinberger replied at 11:50 that; “I am in Cherry Hill New
Jersey now negotiating a contract. I am not available today for
a conference call.” To this, Anspach asked if Weinberger
would be available on August 1. At 8:30 p.m. Weinberger
replied:
I have a meeting tomorrow on LI [Long Island] in the morn-
ing and possibly Yonkers in the early afternoon. I can try to
squeeze something in tomorrow. The Company also has to be
present on the call.
If you have any suggestions about arranging something for
tomorrow, please e-mail them to me. We can also make ar-
rangements to talk next week.
At 9:11 p.m., Anspach responded and stated that the Union
would be available at any time on August 1.
On August 1 at 5:48 p.m. Anspach sent the following email
to Weinberger:
I never heard back from you (see email exchange below).
As a courtesy, I wanted to tell you that the Union has filed a
ULP against Unique for bad faith bargaining. The Union es-
sentially agreed to all of the Employer’s proposals on July 24
–since then, the Employer has used the pretext of opposition
to a Union Security/Checkoff provision in order to avoid
reaching an agreement with the obvious purpose of running
out the clock until the election.
While you point to case law reflecting that an employer is not
always required to accept Union Security clause, I believe the
Board will consider the overall framework and chronology of
the negotiations to conclude that the Employer’s position is
without foundation.
We will document to the Board that your client’s bad faith
bargaining has caused a decline in support for the Union lead-
ing up to the election.
Nonetheless, we remain available to bargain should your cli-
ent have a change of heart.
At 6:56 p.m. on the same day, Weinberger sent an email to
Anspach stating:
When I said last night I would try to squeeze in time I meant
some solution like a call-in number. It is a sign that we are
ready to bargain. We are ready to bargain. The Company has
been and is ready to bargain. However, bargaining doesn’t
mean that we have to agree to everything the Union wants.
That is not bargaining.
I think filing the charge is a pretext to force the company to
agree to a union security and a check-off provision and to de-
lay the election. As I noted, there are union contracts without
dues check-off. There are contracts without the union security
provisions proposed by the Union. There is no case that says
that the Board can force a party to agree to language that it
does not want to agree to and has not agreed to.
Moreover, to say that the Company has not bargained in good
faith is incredible. There have been dozens of discussions and
meetings that the parties have had as well as agreements on
issues including wages, medical, just cause for a discharge,
grievance and arbitration, etc.
The Company is not going to respond to the Union’s allega-
tions about the running out the clock stuff, etc. If you want to
bargain, the Union can call. The Union has my office and cell
phone number. If you want to call my cell phone tonight, we
can arrange for a time to bargain, which could be even to-
night.
On August 2 at 11:27 a.m., Anspach sent the following email
to Weinberger:
It’s silly to say that the Union wants the Employer to agree to
everything desired by the Union. Quite to the contrary – the
APOGEE RETAIL, NY, LLC 5
Union has made a vast number of concessions in order to try
to reach an agreement.
You’re right that there’s case law saying one party can’t force
another party to accept a proposal. But there’s also abundant
case law reflecting that one party can’t turn down a proposal
for no reason, particularly where there is the only remaining
item.
As for the mechanics of bargaining, we made a package pro-
posal on July 24. You said that day you would speak with
your client and get back to us. You then asked us, unneces-
sarily in our view, to reiterate the package proposal, which we
did. But we still never heard back from you.
If you wish to bargain, you can let us know when you and
your client are available. Otherwise, we will continue to
prosecute the charge.
On Sunday, August 3 at 23:29 p.m., Weinberger sent another
email to Anspach which stated:
I believe that you’re e-mail has several statements that are
fundamentally incorrect. First, you keep saying that the Com-
pany has rejected the clauses for no reason. That is not true. I
think my e-mail the other day outlined reasons. If not, we are
certainly willing to bargain and discuss these issues. I have e-
mailed you several times in the last week that the Company is
willing to bargain and talk about this.
Second, the Company has not summarily turned down these
proposals. The Company is willing to discuss alternatives to
the language proposed by the Union. The Union apparently
does not want to discuss alternatives.
Third, within a matter of a couple of days or if not immediate-
ly, the Company has responded to all of the Union’s proposal.
Fourth, I will repeat what I said above, the Company will bar-
gain and discuss the issues with the union. It is Sunday, but I
will try to contact the Company and see when we can talk. If
the Union wants to present other alternatives, please send me
the alternatives.
On Monday, August 4, 2014, at 2:38, the following email
was sent by Weinberger to Anspach:
We can have a conference later today. Otherwise we can
make arrangements to talk tomorrow or another day.
On Monday, August 4 at 2:58 p.m., Anspach emailed Wein-
berger asking when he and his client were available “today”
and that he would check with the Union as to its availability.
At 3:28, Weinberger emailed to say that he and the Company
were available to talk by phone, between the hours of 4 p.m.
and 5 p.m. Anspach replied that the Union was not available at
that time and that he would check to see when they would be
available.
On August 8, an election held by the Board’s Regional Of-
fice and the ballots were impounded.
Subsequent to August 4, there were no further communica-
tions between the Union and the Employer. In this regard,
Anspach testified that he felt, given the circumstances, that
further communications by the Union would be futile and that it
would now be up to the NLRB to resolve the bargaining issues.
B. Other Alleged Violations
In substance, the remaining allegations relate to conversa-
tions between Store Manager, Sameh Mekhueil and/or Naomi
Santana with a number of employees in which it is alleged (a)
that they had not received and would not receive wage increas-
es because they were represented by the Union; (b) that if they
wanted raises they should find other jobs; and (c) that they
would receive wage increases if they rejected union representa-
tion. Additionally, it is alleged that a security guard who was at
the Company’s premises during the election, engaged in sur-
veillance by following an employee and a union representative
out to the parking lot.
In support of the first three allegations, the General Counsel
offered the testimony of four employee witnesses; Abieo Ven-
tura, Rosaura Tolentino, Jose Luis Tavira, and Marlon Colon.
In relation to their testimony about statements regarding
raises, I note that almost all of the Company’s employees, ex-
cept for leads or persons labeled as supervisors (such as Santa-
na), received the minimum wage. To the extent that pay in-
creases were given in the past, the evidence shows that such
raises were given only when the minimum wage was increased.
Rosaura Tolentino testified that the Company held a morning
meeting each day where announcements were made to the em-
ployees by Sameh Mekhueil which were then translated by
Naomi Santana for the Spanish speaking employees. She states
that sometime in July 2014, at a morning meeting, Santana said
that Dave Kloeber (the owner), was not going to give a raise
and that although he had it ready to give it to us, he wasn’t
going to give it because of the Union.
According to Tolentino there was another occasion when, in
a group of about 10 other employees, Santana was asked about
raises and vacations and she responded that because of the Un-
ion, they were frozen; “that a long time would pass before they
would give us a raise.” Tolentino testified that on this occa-
sion, Santana said, in effect, that if the employees were unhap-
py about their wages, they could find another job.
Finally, Tolentino testified that the store manager and Santa-
na made statements over the Company’s public address system
to the effect that raises were frozen.
On cross examination, Tolentino testified that when Santana
spoke about raises, she said that “it had to do with the Union
and negotiations,” and that she didn’t know how long it was
going to take to finish bargaining.
With respect to this person’s testimony, I note that although
there was testimony by other witnesses about the subject of
raises and negotiations, none corroborated Tolentino’s testimo-
ny that these statements were made at the morning meetings or
over the public address system. Also, no one corroborated her
testimony that they were told that employees could look for
jobs elsewhere.
Abieo Ventura testified that in August, but before the August
8 election, Santana called him over for a private conversation
and stated that when the Union wasn’t there, the people were
receiving raises and that the only reason why “we” were not
getting raises was because the Union was in place. He testified
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that she stated that the Union was no good and that if the Union
wasn’t in place, they would be back to the old system where
everyone got raises depending on the amount of work put out.
According to Ventura, Santana was a bit irate because she
wasn’t able to receive raises. He testified that she said that
once the Union wasn’t in place, everyone would be receiving
raises. Ventura also testified that he had another similar con-
versation with Santana, but could not recall when that occurred.
On cross examination, Ventura stated that during the August
conversation, Santana mentioned that the Company and the
Union were engaged in negotiations and that when negotiations
were over, the employees would likely be getting raises. He
also testified that he never heard either Sameh Mekhueil or
Naomi Santana make statements about raises at the morning
meetings or over the public address system.
Jose Luis Tavira testified that on one occasion in May 2014,
Santana told him that “they” can’t give us more money because
everything was “like freezing for the union.” After a little lead-
ing, Tavira recalled that when he was hired, he was told that the
Company gave raises every 3 months and that Santana told him
that; “for the union, everything is frozen.” At a later point,
Tavira recalled that in the context of the frozen statements,
Santana used the word, “negotiate.” (As noted above, the only
time production employees got raises was when the minimum
wage was increased either at the Federal or State level. There-
fore, an alleged statement that the Company gave raises every 3
months, is inaccurate.)
According to Tavira, he attended the morning meetings and
that on one occasion, in response to his question, Santana said
that union dues were $50 per month. Tavira testified that when
he told Santana that this was a lot of money, Santana replied;
“okay, so then vote no.” Other than reporting the statement
about union dues, Tavira did not indicate that Sameh Mekhueil
or Naomi Santana made statements about raises at the morning
meetings or over the public address system.
Marlon Colon testified that in late July or early August, he
was riding on bus after work with Santana and another employ-
ee named Sheniqua McNeil. According to Colon, Santana
stated that his vote was needed because if he voted against the
Union, “we” would be getting our raises. He states that Santa-
na said that before the Union, the employees got quarterly rais-
es and that the only reason they were not getting a raise was
because the Company was negotiating with the Union.
Santana and Mekhueil both denied all of the alleged threats
and promises attributed to them by the General Counsel’s wit-
nesses. Both testified that they received instructions from a
consultant named Mike Rosado and attorney Goldberg about
what they could and could not say to employees regarding
wages, raises or benefits. They testified that after bargaining
began, they were instructed to respond to any employee ques-
tions about wages or benefits by stating that the Company and
the Union were engaged in bargaining and that they couldn’t
say anything until an agreement was reached. Santana and
Mekhueil testified that when asked about wages or raises, they
simply responded that they could not talk about that subject
because of the ongoing negotiations.
In support of the testimony of Santana and Mekhueil, the
Company called a number of employee witnesses who corrobo-
rated their version of events. These employees essentially testi-
fied that there were no comments about wages or raises at the
morning meetings and that no such comments were made over
the public address system. I conclude that no such statements
were made in that manner.
Kirsey Gonzalez, an employee called by the Respondent, tes-
tified that on one occasion she asked Santana about a wage
increase and that Santana replied that everything was in negoti-
ations and that she could not talk about it. This testimony was
consistent with the testimony of those General Counsel wit-
nesses who testified that during their conversations with Santa-
na, the latter mentioned negotiations and/or that things were
frozen during negotiations.
With respect to the alleged conversation between Marlon
Colon and Santana on the bus, Santana credibly testified that
during this conversation, Colon spoke about his personal issues
and that she solicited him to join a church where she was a
minister. She denied that there was any talk about unions,
wages or wage increases. Santana’s accounting of this event
was corroborated by Sheniqua McNeil, an employee who at-
tends the same church.
The bottom line is that the credible evidence shows that at
most, Santana, on perhaps one or more occasions, told employ-
ees that because the Union and the Company were in contract
negotiations, wages were frozen because of those negotiations.
I can see how some employees could have construed or inter-
preted such statements as meaning that no raises would be giv-
en because of the Union; or that raises would be given once the
Union was out; or that one should look for another job if you
wanted a raise. But what some people may have inferred from
Santana’s remarks is not necessarily the same as what she actu-
ally said. I cannot be absolutely certain as to what Santana said
to these employees, but I think it is more probable that she
merely followed orders and told them that wages were frozen
and that she could not say anything else about the matter be-
cause the Company and the Union were in the middle of nego-
tiations.
Except for situations where wage increases, (or other in-
creased benefits), had been planned before the advent of a un-
ion, or where wage increases have historically been granted on
a regular and periodic basis, an employer need not give increas-
es during contract negotiations and may defer them to any col-
lective-bargaining agreement subsequently made. Accordingly,
any statements to employees to the effect that wages are frozen
pending the outcome of negotiations is simply a statement of
what is permissible under the Act and as such cannot violate
Section 8(a)(1) of the Act.
The General Counsel also alleges that the Respondent en-
gaged in surveillance by virtue of the following transaction.
Yomaira Franqui, a union representative, was assigned to go
the election that was held on August 8, 2014. Among other
things, she was there to give instructions to the Union’s desig-
nated observer, Antonio Trinidad, and to give him a list of per-
sons whose ballots the Union intended to challenge.
For the election, the Company decided to hire an additional
contingent of security officers who would monitor the outside
of the building during the election. This was done by the Com-
pany’s security director, Paul Dalton. Dalton testified that for
APOGEE RETAIL, NY, LLC 7
his part, he mainly stayed inside the building and directed peo-
ple to the voting area. He also testified that from time to time,
he went outside to see what was going on with the additional
security guards. In addition to the main building, the Company
has an adjacent parking lot that is separated from the sidewalk
and street by a fence.
Franqui testified that after the election was over, she and
Trinidad went outside to her car that was in the middle of the
parking lot. She testified that Dalton (whose name she didn’t
know at the time), followed them along the sidewalk and ob-
served her and Trinidad from about ten to fifteen feet away.
According to Franqui, Dalton paced back and forth while seem-
ingly talking on his phone. Mr. Trinidad did not testify and
therefore he did not corroborate Franqui’s testimony on this
matter.
Dalton credibly denied that he followed Franqui and Trini-
dad out to the parking lot and testified that when the election
was over, he stayed at the front door and watched people leave.
According to Dalton, he left the building at around 3 p.m., got
into his car, and went home.
In my opinion, the General Counsel’s evidence as to this sin-
gle transaction, allegedly occurring after the election was over,
is insufficient to support the allegation that the Company was
engaged in spying on employee union activity. In this instance,
I am going to credit Dalton’s testimony which shows that at
most, Franqui may have misconstrued Dalton’s walk to his car
as being a case where he was following her and Trinidad to the
parking lot in order to spy on them.
C. Analysis
Having decided the various 8(a)(1) allegations, I shall now
turn to the General Counsel’s theory regarding the allegation
that the Respondent bargained in bad faith.
Section 8(d) of the Act ‘‘does not compel either party to
agree to a proposal or require the making of a concession.’’ If
a term ‘‘is genuinely and sincerely held, if it is not mere win-
dow dressing, it may be maintained forever though it produces
a stalemate.’’ NLRB v. Herman Sausage Co., 275 F.2d 229, 231
(5th Cir. 1960). ‘Nevertheless, the statutory right to refuse to
agree or to make a concession, may not be used ‘as a cloak . . .
to conceal a purposeful strategy to make bargaining futile or
fail.’’’ H. K. Porter Co., 153 NLRB 1370, 1372 (1965). ‘‘Bad
faith is prohibited though done with sophistication and finesse
. . . [Good-faith bargaining] takes more than mere ‘surface
bargaining’ or ‘shadow boxing to a draw.’’’ Id. at 232. ‘‘It is
necessary to scrutinize an employer’s overall conduct to deter-
mine whether it has bargained in good faith.’’ Atlanta Hilton &
Tower, 271 NLRB 1600, 1603 (1984).”
In NLRB v. American National Insurance, 343 U.S. 395,
404, the Supreme Court held that the Board “may not, either
directly or indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective bargaining
agreements.” Notwithstanding that prohibition, the Board has,
on rare occasion, considered the contents of contract proposals
in order to determine whether an employer (or a union), has
engaged in surface bargaining. McClatchy Newspapers, 131
F.3d at 1034, citing NLRB v. Pacific Grinding Wheel Co., 572
F.2d 1343, 1348 (9th Cir. 1978).
It is the General Counsel’s contention that; “by outright re-
jecting the Union’s proposal on union security and dues check-
off, without explanation, Respondent frustrated the collective
bargaining process and thereby bargained in bad faith…” The
8(a)(5) allegation is based on this single issue and the evidence
shows that with the exception of this one issue, the parties
reached agreement on all of the other subjects.
In support of this contention, the General Counsel relies
heavily on CJC Holdings, Inc., 320 NLRB 1041, 1046 (1996).
In that case, the Administrative Law Judge found that the Com-
pany illegally implemented its last offer in the absence of a
valid impasse. Additionally, he concluded that the Company
violated the Act by making unilateral changes during contract
negotiations. Finally, the judge concluded that the Company
engaged in surface bargaining by, among other things, asserting
that it had “philosophical” objections to a dues-checkoff provi-
sion and objected to being in the dues collection business. The
judge opined that these were not legitimate reasons for refusing
to agree to such a provision and constituted evidence of bad
faith. At footnote 2 of the Board decision, Member Cohen,
although agreeing that the Company’s “primary goal was to
avoid agreement and reach impasse,” stated that he did “not
rely on the judge’s finding that a company’s fundamental oppo-
sition to dues check off, on policy grounds, is not a legitimate
reason for opposing such a contract provision.”
In other cases, the Board or ALJs have offered the opinion
that a “philosophical opposition” to dues-check off provisions
may constitute evidence of bad-faith bargaining. See for ex-
ample, Langston Cos., 304 NLRB 1022, 1050 (1991), citing
Tiffany & Co., 268 NLRB 647, 650 (1984). Nevertheless, those
cases involved other unlawful conduct in which opposition to a
union-security or dues-checkoff provision was only a small part
of the evidence taken as a whole. For example, in Langston
Cos., supra, the Board concluded that the employer (a) refused
to negotiate at all until certain unfair labor practice allegations
were resolved; (b) bypassed the Union and dealt directly with
employees; (c) unlawfully implemented changes to its insur-
ance plan in the absence of an impasse; (d) engaged in surface
bargaining with no intent of reaching an agreement; and (e)
unlawfully discriminated against employees because of their
union activities.
In Preterm, Inc., 240 NLRB 654, 673 (1979), an employer
refused to consider any union-security provision, and asserted
that it believed its employees should have the right to choose
whether to join. Finding that the Employer refused to consider
any alternative proposal (such as an agency shop clause), and
concluding that the Respondent went into negotiations with a
fixed mind on this issue, the judge held that the “Respondent’s
refusal to discuss union shop or any modified form thereof,
based upon its alleged ‘philosophical opposition’ thereto consti-
tutes evidence of a refusal to ‘confer in good faith’ within the
meaning of the Act.” Nevertheless, the judge’s conclusion that
the Respondent engaged in surface bargaining was also based
on other conduct, including the Respondent’s attempt to ex-
clude from the bargaining unit, certain categories of employees
that were in the unit by virtue of the certification of representa-
tive. The Board affirmed the judge’s conclusion that the Re-
spondent’s ultimate goal was not to reach an agreement but to
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
free itself of the need to deal with the union. It is also noted
that in addition to concluding that the Company engaged in
surface bargaining, the judge found that the Respondent illegal-
ly threatening employees with job loss.
In Phelps Dodge Specialty Copper Products Co., 337 NLRB
445 (2002), the Board affirmed the ALJ’s decision that an em-
ployer’s refusal to agree to union security and dues checkoff
proposals did not violate the Act. The judge stated:
This case presents the allegation that the Respondent refused
to bargain about union-security and dues-checkoff provisions
in the absence of any other bargaining misconduct. The Gen-
eral Counsel wants the Board to conclude, not only that the
Company’s negotiation positions on these two issues may
constitute evidence of bad-faith bargaining, but that such posi-
tions constitute, by themselves, a violation of the Act. I do not
agree.
The evidence here indicates that the Respondent engaged in
good faith bargaining in all other respects and made conces-
sions during negotiations on wages and other matters. The
Respondent’s position with respect to union-security and
dues-checkoff clauses cannot, in my opinion, be considered
irrational and it took the time during negotiations to explain
its positions. Given the fact that these issues are mandatory
subjects of bargaining, neither side can be compelled to agree
to the other’s position or to even make concessions in its own
position. Moreover, there was evidence that some bargaining
unit employees, such as those accreted to the unit during the
preceding contract term, raised some objections to joining this
Union and made their feelings known to management.
The General Counsel would argue that the present case is
distinguishable from Phelps Dodge because here the Respond-
ent basically stated that its reason for refusing to accept the
Union’s union-security/dues-checkoff proposal was simply
because it didn’t have to. Assuming that this was the only thing
that was said by the Employer, it would still be a reason, albeit
not much of a reasoned reason. On the other hand, I know of
no other type of mandatory subject contract proposal that would
require, as a matter of law, that the proposal’s opponent justify
or offer a reason for its opposition. For example, an employer
refusing to accede to a union’s proposal for a percentage wage
increase need not state its reasons for refusing the union’s de-
mand. Since the issues of union dues and dues checkoff are
mandatory subjects of bargaining, I can see no difference be-
tween these particular subjects and any other mandatory sub-
jects of bargaining.
In St George Warehouse, Inc., 341 NLRB 904 (2004), the
Board made the following comments at footnote 10.
In finding that the Respondent’s rejection of a union-security
clause was evidence of surface bargaining, the judge cited
Bryant & Stratton Business Institute, 321 NLRB 1007, 1043
(1996). In Bryant & Stratton, however, the Board expressly
declined to adopt the judge’s analysis of that issue. See 321
NLRB 1007 fn. 4. Our colleague’s reliance on Hospitality
Motor Inn, Inc., 249 NLRB 1036 (1980), enfd., 667 F.2d 562
(6th Cir. 1982), cert. denied 459 U.S. 969 (1982), to support
the same point is also unavailing. In Hospitality Motor Inn,
the employer’s “philosophical” opposition to a union-security
clause was absolute and obstructionist. There, the employer
established that the Union’s request for a union-security
clause would preclude reaching an agreement, even if the par-
ties could reach resolution of all other issues. In addition, the
employer stated that it would not agree to a union-security
clause, even if “100 percent of the employees signed authori-
zation cards.” Id. at 1039. Moreover, as the Board stressed,
the employer’s intransigent intent not to reach agreement on
union-security and dues-checkoff provisions was but one as-
pect of a “totality of conduct” evincing a failure to bargain in
good faith. Id. at 1036 fn. 1. In the instant case, the Respond-
ent’s opposition to the Union’s demand for a union-security
clause was tied to the specific facts of the instant case—the
Union’s narrow margin of victory—and was not presented as
an obstacle to agreement on other terms or an ultimate agree-
ment.
Our colleague relies on Radisson Plaza as support for his
view that the Respondent’s reference, in explaining its opposi-
tion to the Union’s demand for a union-security clause, to the
Union’s margin of victory is evidence of bad faith. However,
Radisson Plaza is factually inapposite. There, the Board
found the employer’s reference to the election victory was
frequent, it permeated the employer’s bargaining proposal,
and it did not involve a rejection of a union-security clause.
307 NLRB 94, 96 (1992), enfd. 987 F.2d 1376 (8th Cir.
1992). In the instant case, the reference to the Union’s narrow
victory was only raised as relevant to the Respond Respond-
ent’s unwillingness to require all employees to support the
Union.
More recently, the Board revisited this issue in Universal
Fuel, Inc., 358 NLRB No. 150 (2012). The Board stated:
We agree with the judge, for the reasons discussed in his deci-
sion, that the Respondent, Universal Fuel, Inc., violated Sec-
tion 8(a)(5) and (1) of the Act by engaging in overall bad-faith
bargaining with the Union. Thus, as the judge found, in the
course of initial contract negotiations, the Respondent:
Opposed the Union’s proposal on union security for purely
“philosophical” reasons, without advancing any legitimate
business justification;
Late in negotiations, reneged on several tentative agreements
previously reached with the Union, and made regressive pro-
posals concerning those matters without good cause;
Also late in negotiations, introduced new and unpalatable
proposals on subcontracting and picketing without any legiti-
mate business justification;
Insisted on negotiating over a permissive bargaining subject,
the amount of fees to be paid under a proposed agency shop
arrangement;
Withdrew its October 8 and November 6 contract proposals
because the Union had not accepted either in time for the pro-
posal to be approved by the United States government pursu-
ant to the Service Contract Act of 1965; and
APOGEE RETAIL, NY, LLC 9
Falsely informed employees that union security was the only
issue preventing agreement, and cast blame on the Union.
As did the judge, we find that the Respondent’s conduct,
viewed in its entirety, indicates that the Respondent was bar-
gaining without a sincere desire to reach a collective-bargaining
agreement. See, e.g., NLRB v. Reed & Prince Mfg. Co., 118
F.2d 874, 885 (1st Cir. 1941), cert. denied 313 U.S. 595 (1941).
Unlike the judge, however, we find it unnecessary to determine
whether any of the individual acts just described was unlawful
in and of itself. Instead, the Respondent’s conduct, as a whole,
supports the judge’s determination that the Respondent was not
bargaining in overall good faith and thereby constitutes a viola-
tion of Section 8(a)(5).
In the present case, I think it cannot be said that the Re-
spondent did not raise business reasons for refusing to accede
to the proposed union-security/dues-checkoff provisions. The
evidence shows that at the bargaining session held on June 26,
2014, the Company’s owner raised a number or questions about
these proposals. Most significantly, he noted that if the parties
agreed to the wage increase that was on the table, this would
mean that if employees were required to pay union dues, some
would receive only a nominal increase in their pay and others
could receive a net pay below the State or Federal mandated
minimum wage. The evidence also shows that the Union’s
representatives did not respond to the Respondent’s concerns.
In my opinion, the evidence in this case shows that the par-
ties bargained in good faith and in fact, reached agreement on
all subjects except for the union dues-checkoff provisions. And
although it might be said that on balance, the Employer got the
better of the Union, the Respondent did agree to a contact that
would include some wage increases and a grievance/arbitration
procedure. It is therefore my opinion that the evidence cannot
show that the Employer was engaged in surface bargaining and
that it had no intention of reaching an agreement.
CONCLUSION
For the reasons stated above, I conclude that the complaint
should be dismissed.
Dated: Washington, D.C. July 30, 2015