Centurylink

National Labor Relations Board - Administrative Judge Opinions

Aug 24, 2010

28-CA-022804 (N.L.R.B. Aug. 24, 2010)

JD(ATL)–18–10
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
EMBARQ CORPORATION, a wholly-owned subsidiary
of CENTURYTEL, INC., d/b/a CENTURYLINK
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS LOCAL UNION #396, AFL–CIO
Cases 28–CA–22804
28–CA–22849
28–CA–23021
Darlene Haas Awada, Esq., for the General Counsel.
James T. Winkler, Esq., for the Respondent.
Mr. Jesse Newman, for the Charging Party.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Las Vegas,
Nevada, on June 29 and 30, 2010, pursuant to an amended consolidated complaint that issued
on January 27, 2010.1 The complaint alleges that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act by photographing and videotaping employees who were picketing,
violated Section 8(a)(5) of the Act by failing to provide the Union with requested relevant
information, and violated Section 8(a)(5) of the Act by laying off its retail cashier employees. The
Respondent’s answer denies any violation of the Act. I find that the Respondent violated the Act
substantially as alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, Embarq Corporation, a wholly-owned subsidiary of Centurytel, Inc.,
d/b/a Centurylink, hereinafter called the Company, is a Delaware corporation with offices in Las
Vegas, Nevada, engaged in the business of furnishing telephone and other communication
services. The Respondent annually derives gross revenues in excess of $100,000 and performs
services valued in excess of $50,000 in States other than the State of Nevada. The Respondent
admits, and I find and conclude, that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.

1 All dates are in 2009 unless otherwise indicated. The charge in Case 28–CA–22804 was filed
on December 7, the charge in Case 28–CA–22849 was filed on January 4, 2010, and the
charge in Case 28–CA–23021 was filed on April 29, 2010.
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The Respondent admits, and I find and conclude, that International Brotherhood of
Electrical Workers Local Union #396, AFL–CIO, the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
Embarq or its predecessors initially provided land line telephone service in multiple
states including the Las Vegas, Nevada, metropolitan area. At one point Embarq was a
subsidiary of Sprint, at which time it also offered cellular telephone service. Sprint divested itself
of Embarq, and Embarq was acquired by, and is now a subsidiary of, Centurytel, which markets
its services as Centurylink. The Company no longer provides cellular telephone service, but
does provide high speed internet and, through another company, satellite television.
The Union was certified as the clerical employees’ collective-bargaining representative
on November 2, 1954, and has, since that date, been recognized as the exclusive collective-
bargaining representative of unit employees by the Company or its various predecessors. In the
Las Vegas area there are two units, a plant unit and a clerical unit. The Section 8(a)(1)
allegation regarding photographing and videotaping of employees who were picketing relates to
the plant unit. The Section 8(a)(5) allegations herein arise from the Company’s elimination of the
position of retail cashier in the clerical unit and refusal to provide requested information with
regard to the elimination of those positions.
There is no dispute regarding the facts relating to the picketing and there are only minor
disputes regarding the facts related to the layoffs. I shall first deal with the Section 8(a)(1)
allegation relating to picketing and then address the central issue in this case, the layoffs.
B. The Section 8(a)(1) Allegation
On April 22, 2010, over 100 members of various local unions, including members of
Local 396 who were employed by the Company, picketed the Company’s retail store located in
Henderson, Nevada, a suburb of Las Vegas. The Union announced the informational picketing,
which was to protest “difficult bargaining with the Company, and . . . problems with . . .
grievances,” to its members at meetings and by email. Law enforcement authorities were
notified in advance of the picketing, and the Company learned that it was to occur.
The Respondent stipulated that, for purposes of this proceeding, Shauna Slayback was
an agent of the Respondent and “that she took the photographs” of the picketing. Photographs
and a videotape produced pursuant to subpoena reveal that photographs and videotape taken
of the picketing by the Company included employees of the Respondent. Anthony Gates, area
manager customer service for the Company, also photographed the picketing, but the record
does not establish that any photograph of a company employee was taken by Gates rather than
Slayback. The Union also took photographs of the picketing event. Jesse Newman, senior
assistant business manager of the Union, testified that the Union received “calls from
employees that were concerned about retaliation because of the filming” conducted by the
Company. The Union, therefore, on its website, posted a photograph in which only one
individual was identifiable, Jessica Toroczy, who was employed by the Union as a secretary.
The picketing took place on a public sidewalk adjacent to the parking lot of the retail
store. There is no contention or evidence of trespass, misconduct, or blocking of entry.
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The Respondent argues that, insofar as news media had been informed of the event,
“every participant in the event could reasonably anticipate that he or she could end up on the
10:00 news.” Strikes and informational picketing are public events that often result in coverage
by news media. Whether the news media were notified of the event by the Union is immaterial.
Employee expectations are not the criteria upon which a violation of the Act is predicated. Board
precedent is clear that "absent proper justification the photographing of employees engaged in
protected concerted activities violates the Act because it has a tendency to intimidate.” Mercy
General Hospital, 334 NLRB 100, 105 (2001), citing F. W. Woolworth Co., 310 NLRB 1197
(1993). The determination of the Union not to publish photographs that it had taken of the
picketing in which individual employees were identifiable because of concerns of retaliation
expressed to Business Agent Newman confirm the validity of Board precedent.
The Respondent, by photographing employees engaged in protected concerted union
activity violated Section 8(a)(1) of the Act.
C. The Section 8(a)(5) Allegations
1. Facts
a. Retail store operations
The Company provides land line telephone service with various options such as call
waiting and caller identification, high speed internet, and, through another company, satellite
television service. Customers pay for their services in various ways including coming to one of
the seven retail stores located in the Las Vegas metropolitan area. The two clerical unit
classifications relevant to this proceeding are the classification of retail cashier and retail sales
consultant. Until December, employees in the classification of retail cashier were employed at
the three busiest Las Vegas area retail stores, Civic Center, Meadows, and Renaissance.
Retail cashiers, whom retail sales consultant Kathlene Selcke referred to as tellers,
received payments by check, money order, cash, and credit card. Retail cashier Kathryn
Dawkins explained that, if a customer had neglected to bring his or her current bill, the retail
cashier would look up the account and inform the customer how much was owed. Retail
cashiers would also seek to have customers avail themselves of other services offered by the
Company and would refer them to a retail sales consultant if the customer expressed interest in
any other services. If retail cashiers became excessively busy, retail sales consultants or the
store manager would assist in receiving customer payments.
At some point prior to 2004, when Embarq was a subsidiary of Sprint, the record does
not establish the exact date, automatic payment machines were installed at the retail stores.
Those machines received payments by cash, check, or credit card, but not money orders. They
did not make change, thus any overpayment was posted as a credit. They also were unable to
answer questions regarding an account.
Retail cashiers, in a manner similar to how bank tellers work, received money and made
change. Retail sales consultant Selcke testified that, at the Renaissance store at which she
worked, the cash tills used by the retail cashiers contained $100, whereas, until the position of
retail cashier was eliminated, the tills of the retail sales consultants who received payments
when necessary, contained only $50. When the retail cashier position was eliminated, the
amount in the tills of the retail sales consultants was increased to $100. Selcke testified that,
each day, a deposit slip was collected from each automatic payment machine. Retail cashier
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Kathryn Dawkins testified without contradiction that retail cashiers, and presumably retail sales
consultants who had received payments, balanced their cash registers at the end of each day.
The chief responsibility of retail sales consultants, who are sometimes referred to in the
record as customer service consultants, was to sell additional services to existing customers or
new customers who entered the store. They were “assigned a monthly quota for the purpose of
commission.” In the four stores at which no cashiers were employed, retail sales consultants
would also receive payments. In the three stores that employed retail cashiers, they would
receive payments only when necessary to assure that the customers received prompt attention.
b. The collective-bargaining agreement
The collective-bargaining agreement covering the clerical unit is effective by its terms
from April 1, 2009 through March 31, 2012.2 The contract was ratified by the union membership
on October 26, 2009. The clerical contract recognizes the Union as the exclusive collective-
bargaining representative of employees in the following appropriate unit:
The Company’s Clerical employees in the various departments as defined by the Act, as
to the extent certified by the National Labor Relations Board on November 2, 1954, in
Case No. 20-RC-2644.
Wage schedules set out the wages for the classifications of retail cashier and retail sales
consultant.
The management rights clause of the contract, Article 2, 2.02 provides, in pertinent part:
The Company has and will retain the exclusive right and power to manage its business
and direct working forces, including but not limited to, the right to hire, classify, grade,
suspend, reassign, lay-off, discharge, promote, demote, or transfer its employees,
provided that the Company shall not exercise these rights in violation of the provisions of
this agreement.
Article 8 (Reduction in Force), paragraph 8.01 provides, in pertinent part:
In the event of any reduction of the working forces, the Company agrees to notify the
individual employees to be laid off not less than two (2) weeks prior to the lay-off and
simultaneously to inform the Union of the names and occupations of the employees to
be laid off. ….
Paragraph 8.02 of the contract provides: “Lay-offs due to lack of work shall be made in
the inverse order of seniority ….”
During negotiations in 2004 for the clerical collective-bargaining agreement, the
Company proposed language that the Company, “in its discretion,” whenever it “deems that it is

2 The parties have been operating under the current agreement since October 26 when the
union membership ratified the agreement. Senior Assistant Business Agent Jesse Newman
testified that there was no issue relating to contractual language, but that the agreement has not
been signed only because of “an issue on the pension bands.” That issue was not fully
explained on the record and is immaterial to this decision insofar as the Union and Company
agree that they are, and have been, operating under the current unsigned agreement.
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advisable to reduce the work force, reduce the hours being worked by employees, or to lay-off
employees,” could do so and, when doing so, designate 25 percent of the employees in the
affected classifications who “in the Company’s judgment” were the “best qualified and best
performing employees,” to be the last to be laid off or have their hours reduced.
International Representative Gina Cooper, who at the time was Assistant Business
Manager of the Union, wrote “bullshit” next to the proposed language and, in negotiations,
rejected the proposed language. The Company thereafter withdrew the proposal. The current
language has remained virtually unchanged in the last three collective-bargaining agreements.
c. Elimination of the retail cashier position
Centurylink was created as a result of the merger of Embarq and Centurytel in late June
or early July 2009. In July 2009, Jeff Oberschlep, who had previously been employed by
Centurytel in Dallas, Texas, became the Vice President and General Manager of Centurylink in
Nevada. Shortly after assuming that position, he requested Anthony Gates, area manager
customer service, who oversees the operations of the retail stores, “to see if there was a way
that we could become more efficient” consistent with management’s goal of reducing “the
overall expense structure.” Gates provided various recommendations including creating a
mobile store, putting managers over multiple stores, and eliminating the retail cashier position.
The Company maintains data that reflects the number of visitors to each retail store on a
monthly basis and the revenue collected at each store. The revenue report does not distinguish
between revenue received by retail cashiers and retail sales consultants and revenue paid into
the automatic payment machines. Oberschlep, when questioned as to whether he reviewed the
actual documents reflecting the number of visitors and revenue collected acknowledged that he
did not specifically recall. It is undisputed that, over the past 2 years, the number of visitors to
each retail store and the revenue collected at those stores decreased.
The Union and Company were still in negotiations regarding what is now the current
collective-bargaining agreement in August. Oberschlep was aware of those negotiations and, on
August 25, he informed Employee Relations Manager Joseph Basile, who was the
spokesperson for the Company in negotiations, that the Company was “looking at moving
toward eliminating the [retail] cashiers’ position.” Notwithstanding the “looking at”
communication to Basile, Oberschlep admitted, “I had made the decision that I was going to
eliminate the positions.” No document setting out the decision was created.
Consistent with what Oberschlep had told him, Basile, at a contract bargaining session
of August 26, informed the Union that “he had just been informed that the Company was
moving in the direction of eliminating the retail cashier positions” that he “didn’t have a timetable
yet,” but would get more information.
Senior Assistant Business Manager of the Union Jesse Newman, spokesperson for the
Union, recalled that Basile mentioned “a possible change with the retail cashiers,” involving the
“possibility of” a layoff but that he did know if or when it was going to happen.” Newman
commented that “this was not the appropriate time to be discussing” that matter, that since
Basile “didn’t have the appropriate information . . . that it would be more appropriate at a
different time,” and that the Union would be requesting to bargain the decision and effects of
whatever change was contemplated.
Charles Randall, business manager and financial secretary of the Union, took notes of
the meeting. He had no independent recollection of the foregoing conversation, but his notes
reflect that Basile informed the Union that the Company “may be looking at doing something
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with the cashier classification.” Basile had no particulars “on how it would roll out, and that it was
only a local issue.” Randall’s notes reflect that Newman stated that, when Basile knew more,
“would be the appropriate time to discuss it” and that the Union would be “requesting to
barg[ain] the decision and effects of any changes.” Neither Newman nor Randall dispute
Basile’s recollection that, on the following day, he asked them to keep the matter confidential
and that “they were fine with that.”
Notes of the bargaining session taken by Christy Gray, the Company’s Western Region
Human Resources Business Partner, reflect that, when Basile mentioned the possible
elimination of the retail cashier position, he stated that it was “not 100 percent decided.”
Following the bargaining session Basile sent an email dated August 26 to multiple
recipients including Oberschlep and Joseph Osa, the person to whom Basile reports, in which
he summarized the contract bargaining. The email notes that he informed the Union “of our
intent to eliminate the remaining Retail Cashier positions” and that, “once we make this official”
he, Basile, would “follow the contractual guidelines by giving formal notification.” The email
notes that Jesse Newman stated that “he would require ‘bargaining over the decision and
effects.’ (sound familiar??).”
The testimony of Basile and Newman and the notes of Christy Gray confirm that the
Union was not informed of the Company’s “intent to eliminate” the retail cashier position. Rather,
the Union was informed that the Company was “moving in the direction of eliminating” the
position but that it was “not 100 percent decided.” The email confirms that Newman sought to
find out when any contemplated change would occur and stated the intent of the Union to
bargain the decision and effects.
Area Manager Gates prepared a powerpoint presentation dated September 11 that sets
out various strategies for increasing “consumer penetration” and improving “financial
performance.” The section on retail optimization refers to consolidating store management and
eliminating retail cashiers, and that the latter action would result in a saving of $349,147, 74
percent of which were direct labor costs. Vice President Oberschlep acknowledged that cost
reduction was a driving factor in his decision to eliminate the retail cashier position.
On September 15, the Union and Company agreed upon the terms of the contract.
When they initially testified neither Business Manager Newman nor Business Manager Randall
recalled that retail cashiers were mentioned at that bargaining session. Following testimony by
Christy Gray, whose notes did reflect discussion, Randall located the notes of the meeting that
he had taken. His notes confirm that there was discussion of the seniority of the nine retail
cashiers and their rights under the contract. Newman questioned whether the work would
remain. Basile responded that the work would remain, that payments would be received by the
automatic payment machines or retail sales consultants, noting that their receipt of payments
would give them the opportunity to make a sale. Newman questioned whether retail cashiers
existed at other locations. Anthony Gates stated that he believed retail cashiers existed in North
Carolina and “possibly other places,” but that the elimination related only to Nevada.
Basile recalled that, on September 15, he informed the Union that “we were going to
eliminate the positions,” that the only issue “was when we were going to do it.” The notes made
by Randall reflect that, following the discussion of seniority and the contractual rights of the
employees, Basile stated that the Company did not know when anything would happen and
again requested that the Union keep the matter confidential. Gray’s notes reflect that, although
Basile did not give a specific date upon which the positions would be eliminated, he mentioned
“the end of November.” I find that Gray’s notes more accurately reflect what was said in view of
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a subsequent conversation in which Newman made a request of Basile.
Basile’s uncontradicted testimony establishes that, following the foregoing conversation,
Newman stated that the Company had put the Union “in a bit of an awkward position since they
[the Union] knew about the information . . . [but had been asked] to keep it confidential.”
Newman asked if the Company could make its official announcement to the affected employees
prior to the ratification vote on the contract. Basile agreed that “it would have put the Union . . .
in an awkward position if we had just agreed to the contract and then . . . notified the retail
cashiers that they were going to be laid off.” He brought the Union’s concern to the attention of
higher management who agreed to make the announcement several weeks prior to the effective
date of the layoff rather than the contractually required 2 week notification period.
On October 1, Basile sent an email to Randall attaching a letter formally notifying the
Union of the layoff of all retail cashiers. The letter, in pertinent part, states:
I regret to inform you that Friday, October 2, 2009, the Retail Cashiers will be notified of
a reduction in force, which will impact their entire work group. The layoff is a result to
technological improvements and competitive pressure in our industry combined with
access line losses in our markets. … [T]he last day of work for the employees will be
December 4, 2009.
As already noted, the automatic payment machines had been in use for over 5 years.
The Company introduced no evidence of any other new technology relating to payment of bills.
By email on October 13, Newman forwarded to Basile a letter misdated October 15 that
states, in pertinent part:
This letter is in response to your . . . letter wherein you notified the Union of the
Company’s intent to layoff the entire Retail Cashier work group as a result of
technological improvement, competitive pressure and access lines lost in the market.
Therefore, consider this notice of the Union’s intent to bargain both the decision and the
effects regarding the lay offs of the Retail Cashier work group.
On November 3, Newman, on behalf of the Union, requested information “necessary and
relevant . . . to effectively bargain the decision and effects regarding the Retail Cashier
reduction of forces.” The request sought:
1. A [c]opy of any and all contemporaneous notes, reports, power point presentations,
recordings or otherwise regarding any discussion to lay off the Retail Cashier
classification.
2. A [c]opy of any and all information, notes, reports, meeting minutes or any thing else
the Company used to make the determination lay off the Retail Cashier classification.
3. A [c]opy of the names and title of all Company representatives who attend[ed] any
and or all meetings where any discussions were held regarding the Retail Cashier
classification lay off.
4. A copy of the current job description for the Retail Cashier classification detailing any
and all work tasks they perform.
5. A copy of the current job description for the Retail Sales Consultant classification
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detailing any and all work tasks they perform.
6. A copy of the new procedure or guidelines that will be used by the Retail Sales
Consultants detailing how to handle any form of bill payments ….
7. A copy of any and all job openings/bids within the Company locally and for all other
Century Link locations.
8. A copy of any and all documents showing the number of access lines lost by the
Company and its predecessors broken down yearly for the last three (3) years.
9. A copy of any and all documents showing the number of new access lines gained by
the Company and its predecessors broken down yearly for the last three (3) years.
10. A copy of any and all documents shown the number of access lines lost by the
Company and its predecessors which were won back broken down yearly for the last
three (3) years.
11. A copy of any and all communications sent out to customers or posted in the Retail
Stores explaining the changes and new requirements regarding bill payments being
made within the Retail Stores.
On November 16, Basile wrote Randall citing the management rights clause of the
contract and stating that he does not believe that Company “has an obligation to bargain over
the decision.” Consistent with that position he requests that the Union identify the information it
“needs for effects bargaining.”
On November 25, following a telephone conversation between Basile and Randall on
November 18, Basile wrote the Union stating that, “[i]n the Company's view, Items 1,2,3,8, 9,
and 10 appear relevant only to ‘decision’ issues” and the Company “does not believe it is
required to provide the Union with information related to the decision, and is herby declining to
do so.” The Company provided the job descriptions sought in items 4 and 5. Regarding items 6
and 11, Basile stated that there were no such documents. He referred the Union to the
Company’s internal website for the job postings sought in item 7.
Randall responded in a letter also dated November 25 in which he reiterated the Union’s
position that the Company was obligated to bargain regarding the decision relating to the
“complete elimination of all employees working as retail cashiers” and that the information
sought was relevant both as to the decision as well as permitting the Union “to make a good
faith determination of your assessment that it was not an a mandatory subject” of bargaining.
Contemporaneously with the foregoing communications, the parties were proposing
dates to meet with a representative of the Federal Mediation and Conciliation Service. Randall’s
letter confirmed that the parties would meet on December 16 and that the Union needed the
information sought in order to prepare for negotiations regarding the “decision and effects.”
A letter from Basile to Randall dated December 8 refers to meeting to bargain effects.
That letter states that the Company has no notes, reports, powerpoint presentations, or
recordings responsive the Union’s request of November 3. It provides figures, but not
documents, reflecting access lines lost yearly from January 2006 through October 2009.
Business Manager Randall, on December 15, wrote Basile, referencing the Union’s prior
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request, and modifying the request in certain respects. The letter, in pertinent part, states:
In regards to items number one, two and three of he union’s initial request
your answer was non-responsive to the requested information. Therefore,
please provide any and all information including, but not limited to, reports,
notes, surveys, outside studies, customer complaints, sales volume per
store, employee evaluations, job studies or anything else [upon which] the
Company based its decision to lay off the Retail Cashier Classification.
In regards to item number eight, please provide a copy of any and all
information showing the total number of lines lost in the greater Las Vegas
Valley broken down yearly for the last three (3) years by land line residential,
land line business, high speed internet and video.
In regards to items number nine and ten please prove a copy of any and all
information showing the total number of new lines installed in the greater Las
Vegas Valley broken down yearly for the last three (3) years by land line
residential, land line business, high speed internet and video.
In regards to item number eleven please provide a copy of any and all
information showing the Company’s policy on how customers will go about
paying their bills inside a retail location once the Retail Cashier classification
is eliminated, both over the counter payments and kiosk payments.
Also please provide a copy showing the total number of bill payments made
at the retail locations in the greater Las Vegas Valley broken down yearly for
the last three (3) years.
The meeting with the federal mediator on December 16 was short. Basile participated by
telephone and, at the hearing herein, had no recollection of any matter of substance. Newman
recalled that the meeting lasted less than an hour, that the Company continued to refuse to
bargain regarding the decision and was unwilling to offer the retail clerks, who had been laid off
on December 4, anything other than what the contract provided.
On January 19, 2010, Basile wrote Randall with regard to his information request of
December 15, stating that he “cannot see how anything you are now asking for . . . is, or could
be, relevant to bargaining over the effect on employees of the cashier layoffs.
Newman, in testimony, explained that the Union sought the information set out in the first
three paragraphs of the November 3 request, which was modified by the first request in the
letter of December 15, in order to determine the reasons for the decision and whether the Union
could offer anything that could “save the jobs” of the cashiers.
Notwithstanding the existence of the powerpoint presentation dated September 11 that,
inter alia, sets out the labor cost savings resulting from elimination of the retail cashiers, Basile’s
letter of December 8 represents that there were no such documents. When questioned in that
regard, Basile answered that, if the people he goes to “tell me they don’t have any [responsive
documents], that’s how I respond.”
Although Vice President Oberschlep claimed that he did not believe that any documents
existed that reflected the amount of money collected by cashiers as opposed to automatic
payment machines, I question that claim. Retail cashiers and retail sales consultants had tills
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from which they made change as necessary and were, as stated in the job description for the
position and explained by retail cashier Kathryn Dawkins, required to balance their cash
registers at the end of each day. The testimony of retail sales consultant Kathlene Selcke
establishes that a deposit slip was collected from each automatic payment machine each day.
When questioned whether any consideration was given to laying off the most junior
people in any classification other than the retail cashiers, Oberschlep answered, “Didn’t look at
that as a consideration.”
2. Analysis and Concluding Findings
a. Elimination of the retail cashier position
The complaint alleges that the Respondent, on December 4, laid off its retail cashier
employees, that the layoff was a mandatory subject of bargaining, that the Respondent laid off
the employees without affording the Union an opportunity to bargain about the decision or its
effects and without the consent of the Union.
The elimination of the retail cashier classification did not constitute an entrepreneurial
decision relating to the “scope and direction of the enterprise.” First National Maintenance Corp.
v. NLRB, 452 U.S. 666, 677 (1981). It was a staffing decision. The September 11 powerpoint
document reflects the savings resulting from a reduction in force of all 9 cashiers. Customers
continued to pay their bills to employees of the Respondent at retail stores. The work previously
performed by retail cashiers continues to be performed, albeit by retail sales consultants. A
decision to “combine jobs, to reassign work, and to lay off employees” constitutes a mandatory
subject of bargaining. Holmes & Narver, 309 NLRB 146 (1992). “[W]hen virtually the only
circumstance the employer has changed is the identity of the employees doing the work . . . the
decision did not involve a change in the scope and direction of the enterprise that is exempt
from the statutory bargaining obligation.” Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021, 1023 (1994).
Counsel for the General Counsel points out that this was not a “run-of-the mill” layoff. I
agree. Although the Respondent couched its action as a layoff, the elimination of the position of
retail cashier resulted in the termination of all retail cashiers. Retail sales consultants assumed
the work of the retail cashiers. The Respondent’s unilateral determination to eliminate the job
classification of retail cashier is confirmed by the September 11 powerpoint document, which
states on the fifth page: “Reduce headcount by eliminating the ‘cashier’ position.”
The Union, by its email on October 13 that forwarded the letter misdated October 15,
requested that the Respondent bargain both the decision and effects of the layoff of the retail
cashiers. On November 3, the Union followed up by requesting information. On November 16,
the Respondent informed the Union that it did not believe it had an obligation to bargain, a
position it has continued to maintain.
The Respondent, citing the management rights clause of the contract, contends that the
Union waived its right to bargain regarding the layoffs. In 2004, the Union specifically rejected
proposed language giving the Respondent the right to lay off when it “deems that it is advisable”
to do so. The waiver argument might have arguable merit if the Respondent had determined the
number of employees whose services it did not need due to diminished traffic and revenue and,
consistent with the “lack of work” provision in paragraph 8.02 of article 8 of the contract, laid off
in inverse order of seniority. Layoffs pursuant to the unilateral elimination of a contractual job
classification are not privileged under any reading of the contract.
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Insofar as fewer customer visits to retail stores suggested a need for fewer employees,
there would have been a concomitant reduction in the number of retail sales consultants absent
the transfer of the work of retail cashiers to retail sales consultants. The August 26 email from
Basile to his superiors states that he informed the Union of the Respondent’s intent to “eliminate
the remaining Retail Cashier positions.” Although that is not what Basile stated to the Union, his
report confirms that the action of the Respondent was elimination of a classification, not a
reduction in force carried out consistently with the contractual requirement of layoff by seniority.
Oberschlep admitted that he gave no consideration to laying off junior employees in any
classification other than retail cashier, stating, “Didn’t look at that as a consideration.”
As explained in Holy Cross Hospital, 319 NLRB 1361 (1995), “once a specific job has
been included within the scope of the unit by either Board action or the consent of the parties,
the employer cannot remove the position without first securing the consent of the union or the
Board. Hill-Rom Co., 957 F.2d 454, 457 (7th Cir. 1992).” Id at fn.2. No collective-bargaining
agreement provision gave the Respondent the right to unilaterally eliminate a unit classification.
The Union did not waive its right to bargain. The classification of retail cashier was set
out in the contract with specified wage rates. That contractual provision became a nullity when
the Respondent eliminated the position. The decision to eliminate the retail cashier position was
a mandatory subject of bargaining insofar it directly affected the wages, hours, and working
conditions of the retail cashiers, all of whom were terminated when the position was eliminated.
Consistent with its desire to reduce “headcount,” the Respondent could have
approached the Union and proposed elimination of the retail cashier position. If the Union did
not agree to do so, the Respondent was required by the contract to lay off by inverse seniority
which, in the absence of reassignment of the job duties of retail cashiers, would have assured
that a number of retail cashiers remained employed. The Respondent was not privileged to
eliminate a contractually established position without the consent of the Union.
The Union did not waive its right to bargain regarding the Respondent’s action. The right
to eliminate a job classification is not “enumerated as one of the rights of management” in the
management rights clause. See Miami Systems Corp., 320 NLRB 71, 74 (1995). The
elimination of the bargaining unit classification of retail cashier required that the Respondent not
only bargain with the Union regarding its decision but also obtain the consent of the Union
before implementing its decision. Implementation of the Respondent’s decision directly affected
the wages, hours, and working conditions of the retail cashiers, all of whom were terminated.
The Respondent argues that the action of the Union in seeking an early announcement
of its decision constituted a waiver of its right to bargain. I disagree. Until October 1, nothing
was definite. As the brief of the General Counsel points out, citing Sierra International Truck,
Inc., 319 NLRB 948, 950 (1995), an “’inchoate and imprecise’ announcement of future plans” is
insufficient to trigger an obligation to request bargaining or risk waiving the right to bargain. On
August 26, nothing was 100 percent certain. Basile’s email of August 26 summarizing the
bargaining session confirms that formal notification of the Union would occur “once we make
this official.” The Union, on August 26, told the Respondent that it would seek to bargain
regarding the decision and effects. As of September 16, the date for the proposed action was
uncertain, and the Union had been requested to keep the matter confidential. The Union, not
wanting to violate the request for confidentially, requested the Respondent to notify the affected
employees prior to the ratification vote. The Union was unaware that its request had been
granted and a date for elimination of the position had been set until it received the email and
attached letter on October 1 stating that the affected employees would be notified the next day
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and would be laid off on December 4. On October 13, less than 2 weeks after receiving that
notification and almost 2 months prior to the proposed action, the Union, consistent with the
position it had taken on August 26, requested to bargain over the decision and effects.
The Respondent cites no precedent, and I am aware of no precedent, holding that
cooperation regarding procedural matters constitutes waiver of substantive and statutory rights.
I concur with the observation in St. Vincent Hospital, 320 NLRB 42, 50 (1995), that it “would be
utterly unfair were the law to permit party to an agreement to seek the help of the other party . . .
[and then] hold the cooperation against it . . . .” The Union agreed to keep what the Respondent
was “looking at,“ confidential. When informed on September 16 that the Respondent would
eliminate the retail cashier position but that the date had not been firmly decided, the Union
realized the potential fallout of conducting a ratification vote without disclosing the intention of
the Respondent to eliminate retail cashiers. The request for disclosure constituted neither
acquiescence in the elimination of the position nor waiver of the Union’s announced intention to
request bargaining over the decision once it ceased to be confidential. The Union requested
announcement to the affected employees prior to the ratification vote. The Union, less than 2
weeks after that announcement and almost 2 months prior to the date of implementation,
requested bargaining. If Respondent had not refused to bargain, there would have been ample
time to address the issues. The Union did not waive its right to bargain over the decision to
eliminate the position of retail cashier. The Union did not consent to the elimination of this
classification, the wage rates of which are set out in the collective-bargaining agreement.
The Respondent, by refusing to bargain with the Union regarding its decision to
eliminate the contractual classification of retail cashier and by eliminating that position without
the consent of the Union, violated Section 8(a)(5) of the Act.
Evidence at the hearing establishes that elimination of the retail cashiers affected the
working conditions of retail sales consultants who are assigned monthly quotas but who, in the
absence of retail cashiers, had to spend time receiving payments. The Union, consistent with its
contention that the Respondent was obligated to bargain over the decision that eliminated the
retail cashiers, never sought to bargain any effects upon retail sales consultants. As reflected in
the communications between the Respondent and the Union, the Respondent never refused to
bargain regarding any effects of its unlawful action. I shall, therefore, recommend dismissal of
that aspect of the complaint.
b. Refusal to provide information
The complaint alleges the failure and refusal of the Respondent to provide the Union
with the information sought in its letter of December 15, which modified the Union’s initial
request of November 3. Recent Board precedent, including Postal Service, 337 NLRB 820, 822
(2002), reaffirms longstanding precedent establishing that an employer is obligated to provide
requested information so long as there is a “probability that such data is relevant and will be of
use to the union in fulfilling its statutory duties and responsibilities as the employees’ exclusive
bargaining representative.” Bohemia, Inc., 272 NLRB 1128 (1984).
I have found that the Respondent was obligated to bargain with the Union and to obtain
the consent of the Union regarding its decision to eliminate the unit classification of retail
cashier. Thus the claim that the information sought was not relevant because the Respondent
had no obligation to bargain over the decision, only the effects, has no merit.
The Union’s first request in its letter of December 15 was for “information including, but
not limited to, reports, notes, surveys, outside studies, customer complaints, sales volume per
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store, employee evaluations, job studies or anything else the Company based its decision to lay
off the Retail Cashier Classification.” [Emphasis added.] As Newman explained in his testimony,
the Union needed to know the basis for the decision so that it could determine whether the
Union could offer anything that could “save the jobs” of the cashiers. The September 11
powerpoint presentation, placed into evidence by the Respondent, constitutes a document upon
which the Respondent based its decision. Financial information was redacted from the
document placed in evidence. The unredacted document as well as any other information that
has come to the attention of the Respondent in the course of this proceeding is clearly relevant
and must be produced to the Union. The information remains relevant, notwithstanding my
findings herein regarding the unlawfulness of the elimination of the retail cashier position,
insofar as compliance with my decision may have an impact upon future decisions of the
Respondent relative to the utilization of personnel.
The second and third requests relate to lost lines, one of the factors stated by the
Respondent for its action, and new lines. Although Basile, in his letter of December 8, provided
the Union with numbers of lost lines, he did not provide the documentation relating to those
losses or new lines installed. The annual figures provided, January 2005 through October 2009,
reflect a loss of 4,385,870 access lines, well more than double the population of the Las Vegas
metropolitan area. Documents establishing the net line loss or gain is relevant.
The fourth request relates to any information relating to any policy on how customers are
to pay their bill inside a retail location. Basile’s letter of November 25, in response to item 6 in
the Union’s request of November 3, stated that there were no documents. Whether any such
documents were created after the layoff occurred on December 4 is not established. The
information sought is relevant.
The fifth request was for information showing the total number of bill payments made at
the retail locations in the greater Las Vegas Valley broken down yearly for the last three (3)
years. Insofar as retail cashiers balance their cash drawers and records are obviously kept
showing who paid their bill, it would appear that the number of payments made, whether to a
person or machine, is a number that should be able to be obtained. This information is relevant.
The Respondent, by failing and refusing to provide the Union with requested relevant
information, violated Section 8(a)(5) of the Act.
Conclusions of Law
1. By photographing employees engaged in protected concerted union activity, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By failing and refusing to bargain with the Union regarding its decision to eliminate the
unit classification of retail cashier and by eliminating that classification without the consent of the
Union, the Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
3. By refusing to provide the Union with requested relevant information relating to its
decision to eliminate the job classification of retail cashier, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having eliminated the unit classification of retail cashier without
bargaining with the Union and without the consent of the Union, it must restore that
classification and offer reinstatement to Jacqueline Brownlee, Kathryn Dawkins, Pamela
DePalma, Thomas England, Debra Mercer, Peggy Mills, Rebecca Ribaudo, Joyce Smith, and
Lynn Taylor and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from December 4, 2009, to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent must provide the Union with all documents requested in its information
request dated December 15, 2009.
In view of the Board’s decision in Glen Rock Ham, 352 NLRB 516 at fn. 1 (2008), I need
not address the request of the General Counsel regarding compound interest.
The Respondent must also post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent, Embarq Corporation, a wholly-owned subsidiary of Centurytel, Inc.,
d/b/a Centurylink, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Photographing employees engaged in protected concerted union activity.
(b) Failing and refusing to bargain with the Union regarding its decision to eliminate the
unit classification of retail cashier and by eliminating that classification without the consent of the
Union.
(c) Refusing to provide the Union with requested relevant information relating to its
decision to eliminate the job classification of retail cashier.
.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

3 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
purposes.
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(a) Within 14 days of this order, restore the classification of retail cashier and offer
reinstatement to Jacqueline Brownlee, Kathryn Dawkins, Pamela DePalma, Thomas England,
Debra Mercer, Peggy Mills, Rebecca Ribaudo, Joyce Smith, and Lynn Taylor.
(b) Make whole Jacqueline Brownlee, Kathryn Dawkins, Pamela DePalma, Thomas
England, Debra Mercer, Peggy Mills, Rebecca Ribaudo, Joyce Smith, and Lynn Taylor plus
interest as set forth in the remedy section of the decision.
(c) Provide the Union with all documents requested in its information request dated
December 15, 2009.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facilities in the Las Vegas,
Nevada, area copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since November 16, 2009.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., August 24, 2010.
_____________________
George Carson II
Administrative Law Judge

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(ATL)–18–10
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 had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT photograph or videotape employees who are in engaging in protected concerted
union activity without proper justification.
WE WILL NOT fail and refuse to bargain with International Brotherhood of Electrical Workers
Local Union #396, AFL–CIO, the Union, regarding any decision to eliminate a unit classification
and WE WILL NOT eliminate a unit classification without the consent of the Union.
WE WILL NOT refuse to provide the Union with requested relevant information relating to our
decision to eliminate the job classification of retail cashier.
.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days of the Board’s order, restore the classification of retail cashier and
offer reinstatement to Jacqueline Brownlee, Kathryn Dawkins, Pamela DePalma, Thomas
England, Debra Mercer, Peggy Mills, Rebecca Ribaudo, Joyce Smith, and Lynn Taylor.
WE WILL make whole Jacqueline Brownlee, Kathryn Dawkins, Pamela DePalma, Thomas
England, Debra Mercer, Peggy Mills, Rebecca Ribaudo, Joyce Smith, and Lynn Taylor, plus
interest as set forth in the remedy section of the decision.
WE WILL provide the Union with all documents requested in its information request dated
December 15, 2009.
EMBARQ CORPORATION, a wholly-owned
subsidiary of CENTURYTEL, INC., d/b/a
CENTURYLINK
(Employer)
Dated By
(Representative) (Title)
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The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue,-Suite 1800, Phoenix, AZ 85004-3099
(602) 640–2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER (602) 640-2146