Eye Care

738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD David Vainio, H. Marie Vainio, Kevin Vainio and Leonard Vainio, d/b/a Professional Eye Care and d/b/a Eye Care and International Associa- tion of Machinists and Aerospace Workers, Local Lodge 88, affiliated with International Association of Machinists and Aerospace Work- ers, AFL-CIO and District Lodge 85, Local 88, International Association of Machinists and Aerospace Workers, affiliated with International Association of Machinists and Aerospace Work- ers, AFL-CIO. Cases 19-CA-18510, 19-CA- 18646, 19-CA-19043, and 19-CA-19067 June 30, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 1, 1987, Administrative Law Judge Richard D. Taplitz issued the attached deci- sion. The Respondent filed exceptions, a supporting brief, and a motion to reopen the hearing; and the General Counsel filed a brief in support of the judge's decision and an opposition to the motion to reopen. i The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, David Vainio, H. Marie Vainio, Kevin Vainio and Leon- ard Vainio, d/b/a Professional Eye Care and d/b/a Eye Care, Butte and Missoula, Montana, its offi- ' The Respondent has moved to reopen the heanng to introduce into evidence the final decision of the State of Montana Department of Labor and Industry, Unemployment Insurance Board, regarding the unemploy- ment claim of Leonard Dalasera We grant the Respondent's motion to the extent that we take notice that the unemployment decision (already entered into the record) is now final There is nothing in the Respond- ent's motion that requires reopening the heanng or adds probative value to the unemployment compensation decision already considered by the judge See Supreme Dyeing & Finishing Corp, 147 NLRB 1094, 1095 fn 1 (1964) 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Cu 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent alleges in its exceptions that the judge was biased against the Respondent After carefully reviewing the record, we find no basis to support this claim cers, agents, successors, and assigns, shall take the action set forth in the Order. Eduardo Escamilla, Esq., for the General Counsel. Kevin Vainio, Esq., of Butte, Montana, pro se. Gary A. Taylor, of Butte, Montana, for the Charging Par- ties. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. These cases were tried in Butte, Montana, on March 26, April 7 and 8, and June 30, 1987. The charge in Case 19- CA-18510 was filed on August 4, 1986, by Local Lodge 88, International Association of Machinists and Aero- space Workers (Lodge 88). A complaint issued in that case on September 10, 1986, alleging that David Vainio d/b/a Professional Eye Care violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The charge in Case 19-CA-18646 was filed on September 29, 1986, by District Lodge 85, Local Lodge 88, Internation- al Association of Machinists and Aerospace Workers (the Charging Parties). An order consolidating those two cases and an amended complaint issued on November 5, 1986. That amended complaint was further amended on December 19, 1986. The charge in Case 19-CA-18646 was amended on January 2, 1987, and a second order consolidating cases and second amended consolidated complaint issued on March 9, 1987, against David Vainio, H. Marie Vainio, Kevin Vainio and Leonard Vainio, d/b/a Professional Eye Care and d/b/a Eye Care (Respondents). The charge in Case 19-CA-19043 was filed by the Charging Parties on April 7, 1987, after the hearing on the other cases had begun. On April 7, 1987, a motion to consolidate all three cases and to amend the consolidated complaint was granted. The complaint as then amended alleged violations of Section 8(a)(1), (3), (4), and (5) of the Act. After the hearing on those cases had closed the General Counsel moved to reopen the hearing in Cases 19-CA-18510, 19-CA- 18646, and 19-CA-19043 and to consolidate the com- plaint in those cases with a new complaint that had issued on May 12, 1987, in Case 19-CA-19067. The com- plaint in Case 19-CA-19067, which was based on a charge filed by the Charging Parties on April 15, 1987, against David Vainio, H. Marie Vainio, Kevin Vainio and Leonard Vainio, d/b/a Professional Eye Care (Pro- fessional Eye Care) alleged an additional violation of Section 8(a)(1), (3), and (4) of the Act. On May 15, 1987, I issued an order to show cause why the motion should not be granted. No opposition to the motion was heard and the General Counsel's motion was granted by order dated June 1, 1987. The hearing resumed and was com- pleted on June 30, 1987. Issues The primary issues are 1. Whether Professional Eye Care (which is located in Butte as well as a number of other places in Montana) is 289 NLRB No. 95 PROFESSIONAL EYE CARE a single employer with Eye Care (which is located in Missoula, Montana). 2. Whether the laboratory employees at Eye Care in Missoula comprise an independent bargaining unit or whether the bargaining unit for the laboratory employees of Professional Eye Care in Butte should be extended to cover the Eye Care laboratory employees. 3. Whether Professional Eye Care discharged and Eye Care refused to hire Matt Grigsby because of his union activity. 4. Whether David Vainio, one of the owners of Pro- fessional Eye Care and Eye Care, assaulted John Flynn because he testified in these proceedings. 5. Whether Professional Eye Care discharged Leonard Dalasera because of his union activity and because he gave testimony in Board and Board-related proceedings. 6. Whether Professional Eye Care reduced the number of hours that employees worked without bargaining with the Union. 7. Whether Professional Eye Care bargained with the Union concerning a decision to move certain operations to Billings, Montana. 8. Whether Professional Eye Care bargained with the Union about a decision to lease or close its Butte lab. 9. Whether Professional Eye Care refused to give the Union information necessary for bargaining. 10. Whether Professional Eye Care refused to bargain in good faith with the Union. All parties were given full opportunity to participate, to introduce evidence, to examine and cross-examine wit- nesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Respondents. On the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Professional Eye Care is an optical business with an office and place of business in Butte, Montana. It is owned and operated by David Vainio, H. Marie Vainio, Kevin Vainio, and Leonard Vainio (the Vainio family) and is engaged in the business of preparing, repairing, and selling eyeglass lenses and contact lenses. The Vainio family has operated Professional Eye Care and other affiliated business enterprises, with common own- ership, directors, management, and supervision; has for- mulated and administered a common labor policy affect- ing employees in such enterprises; has common bank ac- counts and purchasing accounts; has shared common premises and facilities; has provided services for and made sales to each other; has interchanged personnel with each other; and has held themselves out to the public as a single, integrated business enterprise. Profes- sional Eye Care and its affiliated enterprises constitute a single, integrated business enterprise and a single employ- er within the meaning of the Act. During the 12 months immediately preceding issuance of complaint, Profession- al Eye Care and its affiliated enterprises collectively had gross sales of goods and services valued in excess of 739 $500,000 and sold and shipped goods and provided serv- ices to customers outside of Montana or to customers within Montana who were themselves engaged in inter- state commerce by other than indirect means, of a total value in excess of $50,000. Professional Eye Care and its affiliated enterprises also meet the Board's jurisdictional standards regarding the inflow of goods and materials into Montana. Professional Eye Care is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The above findings are based on allegations of the complaint in Case 19-CA-19067 which were admitted by Professional Eye Care. Respondents acknowledge that Professional Eye Care, as well as a number of affiliated enterprises owned by the Vainio family, constitute a single employer and are subject to the Board's jurisdic- tion. However, Respondents consistently maintained that Eye Care in Missoula is not such an affiliated concern and is not a single employer with or successor or alter ego of Professional Eye Care. The General Counsel has introduced no evidence to indicate whether Eye Care in- dependently meets the Board's discretionary jurisdiction- al standards. Therefore, jurisdiction depends solely on whether the General Counsel had established a sufficient nexus between Eye Care and Professional Eye Care to demonstrate that jurisdiction should be taken over Eye Care because of Professional Eye Care's impact on inter- state commerce. For the reasons set forth in detail below, I find that Eye Care is a single employer with Professional Eye Care and jurisdiction must therefore be asserted over both. Local Lodge 88, International Association of Machin- ists and Aerospace Workers, AFL-CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On April 24, 1985, after an election held by the Na- tional Labor Relations Board in Case 19-RC-11136, the Board certified the Union as the collective-bargaining representative of the employees of David Vainio d/b/a Professional Eye Care in the following bargaining unit: All laboratory employees employed by David Vainio d/b/a Professional Eye Care at the facility located at 225 South Idaho, Butte, Montana; but ex- cluding all office clerical employees, guards and su- pervisors as defined in the Act. The Union's organizational drive led not only to the cer- tification but to a plethora of litigation. On May 13, 1986, Administrative Law Judge Clifford H. Anderson issued his decision in David Vainio, H. Marie Vainio, Kevin Vainio and Leonard Vainio, d/b/a Professional Eye Care, Cases 19-CA-17267, 19-CA-17445, 19-CA- 17511, 19-CA-17569, 19-CA-17570, 19-CA-17833, and 19-CA-17913 (JD-(SF)-52-86, Butte, Montana). Judge Anderson found that Professional Eye Care violated Sec- tion 8(a)(1) of the Act "by interrogating employees about their union activities and sympathies and the sympathies 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of other employees, by soliciting employee complaints and grievances and promising to remedy such griev- ances, by threatening employees with closure of the fa- cility or the subcontracting out of work if employees se- lected the Union as their collective-bargaining represent- ative, by harassing employees because of the employees' union activities or because of their testimony in Board representation hearings, by informing its employees that it would be futile to choose the Union as [their] collec- tive-bargaining representative, by threatening to bargain in bad faith, and by changing the shifts and holiday pay of employees because of their support for the Union." He found that Professional Eye Care violated Section 8(a)(3) and (1) of the Act by discharging employees Bev- erly Riley and Leonard Dalasera because of their union activities or because of the union activities of other em- ployees.' Judge Anderson further found that Profession- al Eye Care violated Section 8(a)(5) and (1) of the Act: a. By transferring personnel and work from its Butte, Montana lab to its Idaho Falls, Idaho facility without notice to the Union and without affording the Union an opportunity to bargain concerning the decision and the effects of such removal. b. By unilaterally changing employees' terms and conditions of employment without first bargaining with the Union in good faith regarding those changes. c. By engaging in a course of conduct designed to undermine the Union and to avoid reaching agreement with the Union, including dilatory com- munication and scheduling of meetings with the Union, failure to conduct bargaining in a business- like fashion, making regressive proposals while fail- ing and refusing to supply specific information con- cerning those proposals or current conditions of em- ployment of unit employees. Judge Anderson recommended that the Board issue a broad order that would prohibit Professional Eye Care from in any manner interfering with, restraining, or co- ercing employees in the exercise of rights guaranteed under Section 7 of the Act. In addition, Judge Anderson found that Professional Eye Care did not violate the Act as alleged in certain al- legations of the complaint. One of those allegations was that Matt Grigsby was discharged because of his union or protected activity. Professional Eye Care reinstated Grigsby as part of a settlement agreement, after further litigation in the United States District Court and the Ninth Circuit Court of Appeals. The reinstatement pre- ceded the issuance of Judge Anderson's decision and it was the understanding of Professional Eye Care that Grigsby was to be reinstated pending that decision. However, Professional Eye Care kept Grigsby in its employ after Judge Anderson's decision issued. Gary Taylor, business representative for the Union, credibly testified that in July 1986 he had a conversation with David Vainio in which Vainio said that he had no more trouble with Grigsby since he came back to work but I Dalasera was reinstated thereafter It is alleged in the instant case that he was once again unlawfully discharged that Grigsby's job would be phased out when the lab in Missoula started. Subsequently Grigsby was discharged from Professional Eye Care. The complaint in the instant case alleges that Professional Eye Care discharged him and Eye Care in Missoula refused to hire him because of his union activity. Exceptions were filed to Judge Anderson's decision and the Board has not yet ruled in those cases. Although I have taken official notice of Judge Anderson's decision, in the absence of resolution by the Board, I have not based my findings in this case on any of his findings. The findings set forth below are based solely on the testimo- ny of witnesses who appeared before me and the docu- mentary evidence that was introduced in this case. B. The Single Employer and the Single Bargaining Unit Issues 1. Factual findings The Vainio family, through Professional Eye Care, which is also known as American Eye Care, owns and operates approximately 16 eye care centers located throughout Montana.2 The Vainio family consists of op- tometrists David and Leonard Vainio, Attorney Kevin Vainio, and their mother H. Marie Vainio. Glasses are fitted at all Professional Eye Care centers. However before Eye Care in Missoula began operating a laborato- ry in early October 1986, substantially all the laboratory work flowing from the Professional Eye Care stores was performed in Professional Eye Care's laboratory in Butte, Montana. Two types of work were done at that Butte laboratory. One involved surfacing in which curves were ground into the lenses. That work required expensive heavy-duty equipment such as generators, cyl- inder machines, and cutters. The other type of work in- volved finishing and hardening. That consisted of laying lenses out according to prescription, marking them, edging them, shaping them to the shape of the frame and, regarding plastic lenses, hardening and scratch-coat- ing them. Shortly before the Eye Care Missoula labora- tory opened, the surfacing equipment that had been lo- cated in Professional Eye Care's Butte laboratory was moved to the Missoula lab. Butte had duplicate finishing machinery and one set of that machinery was also sent to Missoula. At the time the Eye Care Missoula laboratory opened, it was capable of performing both surfacing and finishing work while Professional Eye Care's Butte labo- ratory, which no longer had the surfacing equipment, was only capable of doing the fmishing work. Surfacing has to be performed on about 25 percent of the jobs, as most lenses come from stock and only have to be fin- ished. Butte now works with stock lenses and finishing while Missoula works with stock lenses, surfacing, and finishing. At the time the Missoula laboratory opened, there were four employees working at Professional Eye Care's Butte laboratory. They were Matt Grigsby, Mike King, Leonard Dalasera, and Richard Delano. One of those employees, King, ceased working for Professional Eye 2 The addresses are set forth in R. Exh. 2. PROFESSIONAL EYE CARE Care in Butte and began working for Eye Care in Mis- soula. Missoula is approximately 120 miles from Butte. As is discussed in detail below, Matt Grigsby was dis- charged by Professional Eye Care and was refused em- ployment by Eye Care. For the reasons also set forth below, I have found that the discharge by Professional Eye Care was not violative of the Act but that Eye Care's refusal to hire him was a violation. In analyzing whether a majority of the employees at the Eye Care lab desired union representation, Grigsby must be considered an employee of Eye Care. The two other employees of Professional Eye Care in Butte were, at the time of the opening of the trial, still employed by Professional Eye Care. a The Eye Care lab in Missoula opened with three or four employees.' The normal employee complement in the Eye Care lab is four or five and at the time of the trial there were four employees, one of whom was King who previously had worked at Professional Eye Care. All four of the employees work in the lab and none are supervisors. The Eye Care facility in Missoula consists of both a store and a lab. Two of the laboratory employees sometimes go into the store and handle a problem there. However, they are not engaged in dispensing or selling in the retail outlet on a routine basis. At the Butte lab also, the employees did not work strictly at the lab. 5 For a number of years Professional Eye Care had been trying to open an optical store at the Southgate Mall in Missoula. No lease was obtainable because another opti- cal store already had a lease at the mall with a 3-year "no competition" clause. After the 3 years expired, David Vainio, through John Flynn, Professional Eye Care's business manager, approached the mall's manage- ment about a lease. The management of the mall was not interested in another optical store but indicated that it would be interested in a full service operation which in- cluded examination, frames, and a complete lens prepara- tion laboratory. David Vainio came to an agreement with the mall management to open such a full-service es- tablishment and signed a lease in his own name. He and his wife were the only owners of the new facility that 8 During the course of the trial the complaint was amended to allege that Dalasera was discharged in violation of the Act As is discussed in detail below I have found that he was unlawfully discharged However, before the last day of trial he was reinstated 4 At one point in his testimony , David Vainio testified that the Eye Care lab opened with four employees, one of whom was Craig Tolman, the manager However , later in his testimony , he averred that the lab opened with four rank-and-file employees and that the usual employee complement was four or five, all of whom are nonsupervisory At one point in his brief, counsel for the General Counsel states that the Missou- la lab opened with four "individuals," including an admitted supervisor At another point in his brief he states that the lab opened with two full- time "lab employees" and two part-time "employees " I credit David Vainio's testimony that the usual employee complement was four or five The Eye Care store opened on August 28, lab equipment was moved there about September 10, and the lab began operating in October 1986 5 Counsel for the General Counsel, in his brief, states that when Eye Care commenced its lab operation , it had two full-time lab employees and two part-time employees who also worked in the retail outlet operation He argued that the part-time employees were not in the bargaining unit The case law does not support that proposition Fleming Industries, 282 NLRB 1030 (1987) 741 was named Eye Care. The other members of the Vainio family had no ownership interest in Eye Care.6 David Vainio owned half of the laboratory equipment at the Professional Eye Care Butte laboratory. The other half was owned by his brother Leonard Vainio. The two brothers negotiated for David Vainio to buy Leonard Vainio's half. The value of the equipment was put at $60,000 and David Vainio gave Professional Eye Care a check for $30,000 to pay for Leonard Vainio' s interest. However, the transaction was not fully at arm's length. Both David and Leonard Vainio had access to the Pro- fessional Eye Care account so that David Vainio in effect was putting money into an account that he could draw out of. David Vainio testified that the $30,000 was allocated to Leonard Vainio even though it was in a joint account with David Vainio. On occasion David Vainio put his personal money into the Professional Eye Care account on a temporary basis. Before Eye Care opened at the mall, Professional Eye Care had a retail store at that location. The store lost its lease and discontinued business there. However, Eye Care used the same phone number that had been as- signed to the Professional Eye Care store. David Vainio is fully in charge of the Eye Care facili- ty in Missoula. He and his wife own it, he hired the man- ager there, and he makes all key decisions including those regarding labor relations. David Vainio is also the primary person in charge of Professional Eye Care's Butte laboratory. As is apparent from the discussion below relating to the collective-bargaining negotiations, David Vainio sets labor relations policies there as well as in Missoula. Except when the position of business man- ager is vacant, as it has been from time to time, there is one business manager at the Professional Eye Care Butte laboratory and another one at the Eye Care Missoula laboratory. The business managers take care of the day- to-day operations. Eye Care and Professional Eye Care keep separate records and use separate checking accounts. The govern- ment ID number used at Eye Care is a personal one that David Vainio had. Gerald Baker, the accountant for both Professional Eye Care and Eye Care, testified in some detail concern- ing the books of both companies. He averred that when Eye Care first opened, he was instructed by David and Leonard Vainio that Eye Care was to be separate from Professional Eye Care and the accounting records and everything else were to be completely separate. He testi- fied to a number of things, however, that raised ques- tions as to their separate identities. He averred that he was paid by both Eye Care and Professional Eye Care but then he acknowledged that he had not received any checks from Eye Care. Professional Eye Care has an in- house computer in Anaconda that is used by both Eye Care and Professional Eye Care. The Anaconda facility makes the payroll for both companies though Eye Care reimburses Professional Eye Care for the expenses. Pro- 6 These findings are based on the credited testimony of David Vainio Though I do not believe that David Vainio was always fully credible, there was no evidence to contradict his testimony in this regard and I credit him 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fessional Eye Care does most of the purchasing of the supplies for both companies because it can do so on a mass basis. Baker testified that Eye Care reimburses Pro- fessional Eye Care for such items as frames and lenses that it receives from Professional Eye Care but the manner of the payment indicates that there is less than an arm's-length arrangement. Apparently there is no inven- tory of the actual goods that are passed on from Profes- sional Eye Care to Eye Care. The computation for the payment by Eye Care to Professional Eye Care is based on a percentage of sales made by Eye Care in relation to the sales made by Professional Eye Care. Because Eye Care purchases some of its materials from sources other than Professional Eye Care, the use of the retail sales percentages would not appear to give an accurate result in determining how much Eye Care owed Professional Eye Care for supplies. Eye Care does separately pay such items as rent, ad- vertising, insurance, and telephone. Baker testified that Eye Care does a lot of work for Professional Eye Care and that Eye Care pays its own employees and charges Professional Eye Care for the labor costs. John Flynn was the business manager for Professional Eye Care. He credibly and in detail testified about the relationship between Eye Care and Professional Eye Care. He averred that on at least three occasions he went to the Eye Care store in Missoula to work on their accounts receivable. He testified that even though he was business manager of Professional Eye Care, he had never seen a billing for the supplies that Eye Care had received from Professional Eye Care. Professional Eye Care purchased supplies such as frames, lenses, contact lenses, and solutions that were sent to the Butte facility from where they were distributed to most of the other stores and the Eye Care lab facility. He testified that Eye Care ordered some of its own inventory and also took some of the inventory from Professional Eye Care. He also testified that Professional Eye Care has obtained supplies and inventory from the Eye Care lab in Missou- la and that there never has been an accurate billing be- tween the two facilities. He credibly testified that pursu- ant to the instructions of David Vainio, he has on occa- sion withdrawn money from other accounts including Eye Care's and put it into the Professional Eye Care Butte account when there was not enough money in the Professional Eye Care account to pay bills. There is one medical insurance policy that covers all Professional Eye Care employees. The employees of Eye Care do not participate in that insurance plan except for Craig Tolman, the business manager of Eye Care. David Vainio often takes work from the Professional Eye Care Butte lab to the Eye Care Missoula lab to have it worked on and also takes work in the opposite direc- tion. Two of the Professional Eye Care stores, Helena and Great Falls, send all their work to the Eye Care lab in Missoula. The rest of the work from the Professional Eye Care operation goes to the Butte lab and David Vainio then decides where he wants to take the work. For the purpose of this case it must be assumed that the opening of the Eye Care lab and the transfer of equipment from Professional Eye Care to Eye Care were wholly lawful. Unlawful conduct can only be found after a respondent has been properly informed of an allegation of wrongdoing and after that allegation has been fully litigated. There is no allegation in the complaint that the opening of the Eye Care lab was unlawfully motivated, that the transfer of equipment was in any way unlawful, or that there was a failure to bargain about such matters. Testimony was allowed concerning the opening of the Eye Care lab but solely in relation to allegations of single employer, alter ego, or successor . (Jurisdiction over Eye Care was alleged on the basis of its connection to Professional Eye Care and Eye Care allegedly violat- ed Sec. 8(a)(3) of the Act by refusing to hire Grigsby.) In his brief, counsel for the General Counsel inexplicably states "additionally at least one of the reasons why Eye Care lab facility was established was Respondents ' desire to rid itself of any union obligation." That assertion is to- tally inconsistent with the position that counsel for the General Counsel repeatedly took during the trial. In his opening statement, counsel for the General Counsel spe- cifically said that there was no issue regarding the failure of Respondents to notify the Union about the move of the lab to Missoula, that there was no allegation that the transfer was in itself unlawful , and that there was no alle- gation that the move was a violation of the Act. In the course of the trial, counsel for the General Counsel re- peated that there was no allegation in the complaint that the opening of the Missoula store or the removal of the equipment to Missoula was a violation of the Act. Indeed, at one point Respondents attempted to introduce evidence relating to their motivation in moving equip- ment to Missoula and the General Counsel objected on the ground that there was no allegation that the move was unlawful. The objection was sustained and Respond- ents were denied the opportunity to adduce testimony as to the motivation for the move. At the General Coun- sel's own request, the matter was not litigated . The Gen- eral Counsel cannot now successfully claim that the Eye Care lab facility was established because Respondents wanted to rid themselves of any union obligation. 2. Analysis and conclusions with regard to single employer issue In Blumenfeld Theatres Circuit, 240 NLRB 206, 214- 215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980), the Board adopted my decision which read as follows: In Radio & Television Broadcast Technicians Local Union 1264, IBEW v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court held that in determining whether enterprises consti- tute a single employer : "The controlling criteria, set out and elaborated in Board decisions , are interrela- tion of operations, common management, central- ized control of labor relations and common owner- ship."16 Though the Board and the courts have not always agreed on how to apply the standards enun- ciated by the Supreme Court, the decision of the Court of Appeals for the District of Columbia in Local No. 627, International Union of Operating En- gineers, AFL-CIO [South Prairie Construction Com- pany and Peter Kiewit Sons' Co.] v. NLRB, 518 F. 2d PROFESSIONAL EYE CARE 1040 (1967), appears to be controlling . In that case the court of appeals reversed the Decision of the Board in Peter Kiewit Sons' Co. and South Prairie Construction Co., 206 NLRB 562 (1973). Part of the circuit court's decision was affirmed by the United States Supreme Court in South Prairie Construction Co. v. Local No. 627, International Union of Operat- ing Engineers, AFL-CIO, 425 U.S. 800 (1976). The Board had made two separate findings . The first was that two entities did not constitute a single em- ployer and the second was that each entity had a separate appropriate bargaining unit for collective- bargaining purposes. The court of appeals disagreed and found both a single employer and a single unit. On appeal the Supreme Court affirmed that part of the court of appeals' decision which found that the two entities were a single employer and reversed and remanded to the court of appeals that part of the decision which related to the unit question.'' As the Supreme Court has affirmed the circuit court's decision with regard to the single employer, the language of the circuit court is of particular im- portance. That circuit court held 518 F.2d at 1045- 46: Guidelines for "Single Employer" Status In Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255... (1965), the Supreme Court, in a per curiam opinion affirming a "single em- ployer" holding below, said: "The controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership." The court cited several NLRB decisions includ- ing one affirmed in Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902 (9th Cir. 1964), cert. denied, 379 U.S. 961 . . . (1965). In Sakrete, the Ninth Circuit stated, at 907: "even if the substantial evidence shows interrela- tionship of operations, centralized control of labor relations, or common management only at the executive or top level, we do not agree that this precludes application of the single employer concept." It pointed out that these three criteria "deal not with power and authority, as such, but with its exercise," and that such criteria, "on any level, are considerations in addition to the factor of common ownership or financial control."s Although the Supreme Court in Radio Union, supra, commented that the record in that case was more than adequate to show that all of the four "controlling criteria" were present, it does not appear that all four criteria must be present. In one of the NLRB cases cited, Canton, Carp's, 125 NLRB 483 (1959), the Board observed that it had on several occasions made a fording of a single employer status in the absence of a 743 common labor relations policy, and even when it had been affirmatively shown that each of two corporations held to be a single employer estab- lished its own labor relations policy. In another of the NLRB cases cited, V.I.P. Radio, Inc., 128 NLRB 113 (1960), the Board found that there was little or no employee interchange; but 90 percent stock ownership of the second corpora- tion, the same officers and directors, and central- ized control of "general labor policy" and oper- ations resulted in a "single employer" holding. In still another cited NLRB case, Overton Markets, Inc., 142 NLRB 615 (1963), the Board noted, at 619, that the circumstances were not "character- istic of the arm's length relationship found among unintegrated companies."9 Its conclusion that there was a "single employer" for purposes of the Act rested on consideration of "all the circum- stances" of the case. From the foregoing, we conclude that "single employer" status, for purposes of the National Labor Relations Act, depends upon all the cir- cumstances of the case, that not all of the "con- trolling criteria" specified by the Supreme Court need be present; that, in addition to the criterion of common ownership or financial control, the other criteria, whether or not they are present at the top level of management, are "controlling" indicia of the actual exercise of the power of common ownership or financial control; and that the standard for evaluating such exercise of power is whether, as a matter of substance, there is the "arm's length relationship found among un- integrated companies."10 9 In a later decision, NLRB v. Welcome-American Fertilizer Co., 443 F 2d 19, 21 (9th Cir 1971), the Ninth Circuit, citing Sakrete, said that no one of the four criteria is controlling. 9 The "arm's length" test makes meaningful the Board's ref- erence in Canton, Carp's, Inc., supra at 484, to "realities of com- mercial organization." It was applied by this court in American Fed of Television & Radio Artists v NLRB, 149 U.S App D C 272, 462 F 2d 887 (1972). 10 Petitioner relied heavily on NLRB v Royal Oak Tool & Mach Co, 320 F 2d 77 (6th Cir 1963) in which the court said, at 81. "It requires a greater degree of credulity than is possessed by this Court to accept the view that [the subsidiary's operating officers] could inaugurate or establish a labor policy that did not meet with the absolute approval [of the board of direc- tors of the parent company]." So too, we are persuaded that South Prairie's president, having decided or, at least, recommended that South Prairie be activated in Oklahoma, was not a free agent to alter South Prai- rie's nonunion policy 16 See also Sakrete of Northern California, Inc., 140 NLRB 765 (1963), enfd 332 F 2d 902 (9th Cir 1964), cert. denied 379 US 961 (1965). 17 On remand the Board issued a Supplemental Decision re- ported at 231 NLRB 76 (1977) in which it noted that the Supreme Court had affirmed the circuit court's finding that the two entities were a single employer. The Board reconsidered the smgle-unit question and concluded that, even though the entities were a single employer, separate units were appropriate 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Board has consistently followed those guidelines. Malcolm Boring Co., 259 NLRB 597 (1981). The princi- ples were restated in Airline Bus Service, 273 NLRB 561 (1984), in which the Board used the same criteria in de- termining whether nominally separate businesses operat- ing simultaneously are sufficiently interrelated so that they may be treated as a single, integrated business enter- prise. See also Emsing's Supermarket, 284 NLRB 302 (1987). In the instant case Professional Eye Care and Eye Care are interrelated in their operations. Both do the lab work that is generated by the Vainio family stores. Sup- plies are purchased by Professional Eye Care and distrib- uted to Eye Care. Work coming into Eye Care is often sent to be done at Professional Eye Care and vice versa. Professional Eye Care has drawn money from an Eye Care account when Professional Eye Care's funds were short. There is a clear functional relationship between Eye Care and Professional Eye Care that can only be de- scribed as an interrelation of operations. Eye Care and Professional Eye Care have common management at the decision-making level. David Vainio is the "boss" at both enterprises. In addition, he controls labor relations at both enterprises. He makes all such decisions at Eye Care and, as indicated by his conduct in the negotiations discussed below and by his and Flynn's testimony, he has the final voice regarding labor relations at Professional Eye Care. Regarding "common ownership" David Vainio and his wife own all Eye Care while David Vainio and three other members of his family own all Professional Eye Care. Moreover, as is set forth above, the practices of Professional Eye Care and Eye Care as well as the casual arrangements for the distribution of work and supplies strongly indicate that the two organi- zations do not have an arm's-length relationship but deal on a family basis. The situation in the instant case is similar to that which was present in Hahn Motors, 283 NLRB 901 (1987). There, the same person was the chief executive officer for each of the companies involved; that person exercised virtually unrestricted operational, financial, ad- ministrative, and labor relations control over both com- panies; that person and his wife owned all of one compa- ny and 35 percent of the other company with practically the entire remainder of the other company inuring to the beneficial interest of that person's mother and sister; and there was functional integration of the two companies. Taken as a whole, the Board found that the two compa- nies did not maintain an arm's-length relationship such as is found among unintegrated companies, and that the two constituted a single employer. Applying the case law cited above to the instant case, I find that Eye Care and Professional Eye Care consti- tute a single employer. As such they are jointly and sev- erally liable for any backpay due and for otherwise rem- edying their unfair labor practices. Emsing's Supermarket, supra. In his brief, counsel for the General Counsel presents a number of alternative theories regarding the relationship between Eye Care and Professional Eye Care. The thrust of one of those theories is that Eye Care is the successor of Professional Eye Care. I find that theory unpersuasive. In United Food & Commercial Workers (R & F Grocers), 267 NLRB 891, 892-893 (1983), the Board adopted that part of Administrative Law Judge William J. Pannier III's decision which held that the successorship doctrine applies where there is a bona fide change in ownership of an enterprise and there is a sub- stitution of one employer for another under circum- stances where the predecessor employer either termi- nates its existence or otherwise ceases to have any rela- tionship to the ongoing operation of the successor em- ployer. In the instant case, Eye Care and Professional Eye Care are both in existence. It is true that in Louis Pappas' Restaurant, 275 NLRB 1519 (1985), the Board held that a successor obligation is not defeated by the mere fact that only a portion of a former union-repre- sented operation is subject to sale or transfer to a new owner. However in that case the employees in the con- veyed portion constituted a separate appropriate unit and those employees comprised a majority of the unit under the new operation. As the United States Supreme Court held in NLRB v. Burns Security Services, 406 U.S. 272 (1972), a succcessor employer finding is appropriate where a bargaining unit remains unchanged and a major- ity of the employees hired by the new employer are rep- resented by a recently certified bargaining agent. As found below in the instant case, the lab employees of Professional Eye Care constitute an independent and sep- arate unit from the lab employees of Eye Care and a ma- jority of the employees in the Eye Care bargaining unit did not come from Professional Eye Care. There is no basis for finding a successorship. Counsel for the General Counsel also argues that Eye Care is an alter ego of Professional Eye Care. Once a single employer is found there is little need to resolve the question of alter ego. In both situations there is a finding that there is only one enterprise. However, in both situations the one enterprise can have operations at two different locations and the case will often turn on whether the two locations constitute a single bargaining unit in which the enterprise has to bargain with the union or constitute two independent bargaining units where bargaining is only required in one. In Hahn Motors, supra, the Board, after finding a single employer relationship, went on to conclude that it was unnecessary to reach the question whether an alter ego relationship existed. In any event, I do not believe that the facts as set forth above warrant a finding of alter ego. The crite- ria used in determining alter ego were reiterated by the Board in Continental Radiator Corp., 283 NLRB 234 (1987), in which it was held: In Advance Electric, 268 NLRB 1001, 1002 (1984), the Board stated that it will find alter ego status where two employers have "`substantially identical' management, business purpose, operation, equip- ment, customers, and supervision, as well as owner- ship." In addition, the Board considers whether there has been any hiatus in operations, whether the companies use the same building, and "whether the purpose behind the creation of the alleged alter ego was legitimate or whether, instead, its purpose was PROFESSIONAL EYE CARE 745 to evade responsibilities under the Act."e No one factor is determinative of alter ego status. 6 268 NLRB at 1002, quoting Fugazy Continental Corp., 265 NLRB 1301 , 1302 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984). An alter ego theory is generally used where an employer disguises its continued operation of a facility by the cre- ation of another entity in order to evade bargaining re- sponsibility. That is not the situation in the instant case. Though David Vainio owns Eye Care and he along with other family members (two brothers and a mother) own Professional Eye Care, there is not a substantial identity of ownership. The two facilities are 120 miles apart, they maintain their own identities, and there is no finding that Eye Care was opened for any improper reason. As set forth above, I must assume that Eye Care was opened for lawful reasons. O. Voorhees Painting Co., 275 NLRB 779 (1985). 3. Analysis and conclusions with regard to the separate bargaining unit issue In Peter Kiewit Sons' Co., 231 NLRB 76 (1977), enfd. 595 F.2d 844 (D.C. Cir. 1979),' the Board emphasized the difference in approach in resolving a single employer question and a scope of unit question, holding: In determining whether a single employer exists we are concerned with the common ownership, struc- ture, and integrated control of the separate corpora- tions; in determining the scope of the unit, we are concerned with the community of interests of the employees involved. The Board goes on to indicate that in resolving the unit question where there is more than one operation of a single employer, such factors as bargaining history, func- tional integration of operations, differences in the types of work and skills of the employees, extent of centraliza- tion of management supervision, and the extent of inter- change and contact between the groups of employees are to be considered. Some of those factors are discussed above. There is a bargaining history at the Professional Eye Care lab but none at the Eye Care lab; there is some functional integration of operations as discussed above; there is centralization of top management but not of day- to-day operations; and there is no interchange or contact between the groups of employees except for some of the initial hiring. The relocation of a bargaining unit does not necessari- ly destroy that unit. In Hahn Motors, supra, the Board found that two companies constituted a single employer and that the relocation of service department employees to a new facility 7 miles away did not destroy the com- munity of interest that had existed within the plantwide unit so as to justify depriving those employees of contin- ued representation. There the Board found that the re- spondents' efforts to fragment the unit by unilaterally im- 7 See also Malcolm Boring Co., supra. posing the geographical separation of 7 miles could not defeat the employees' right to representation. In the instant case, the single employer has two lab fa- cilities. They are located 120 miles apart so that it may be assumed that they draw from different labor pools. The normal or representative employee complement at the Eye Care lab in Missoula is four or five employees. As found below Matt Grigsby, who had formerly worked for Professional Eye Care, was unlawfully denied employment at Eye Care. For the purposes of de- termining the employee complement of Eye Care, Grigsby must be added to the list. If he is added then the normal employee complement would be five or six. One employee, King, who had worked for Professional Eye Care, left his work there and began working for Eye Care. Thus for our purposes two employees out of the five or six in the Eye Care lab bargaining unit were for- merly in the Professional Eye Care lab bargaining unit. There is no evidence that any of the other employees in the Eye Care lab bargaining unit desired the Union to represent them. No matter how it is counted, the Union has not been selected by a majority of the Eye Care lab employees to represent them.8 If the General Counsel's contentions are correct, then those employees will not have an opportunity to express their wishes as to repre- sentation. Under all the circumstances of this case and with particular reliance on the fact that the two laborato- ries are separated by a distance of 120 miles, that there is no basis for assuming that the Missoula lab was opened to thwart union activity or in violation of the Act, and that there is nothing to indicate that a majority of the employees at the Missoula lab desire union representa- tion, I do not believe that Respondents' obligation to bargain at Butte, Montana, should be extended to cover the employees employed in Missoula, Montana.9 In reaching this conclusion I have also considered the fact that the outstanding certification by the Board is limited to employees "employed by David Vainio d/b/a Profes- sional Eye Care at the facility located at 225 South Idaho, Butte, Montana." The complaint as amended alleges that the laboratory employees .of Professional Eye Care and Eye Care con- stitute an appropriate bargaining unit; that the Union re- quested Professional Eye Care and Eye Care to recog- nize and bargain with it as the representative of the em- ployees in that unit, which included employees of Eye Care; and that Professional Eye Care and Eye Care vio- lated Section 8(a)(5) of the Act by refusing to recognize 8 Even if the lab opened with three employees , one of whom had worked for Professional Eye Care, and Grigsby is added to make four, there would only be two out of the four employees who indicated a desire for union representation. That is less than a majority. 8 The complaint does not allege and the General Counsel does not contend that the Eye Care lab is an accretion to the Professional Eye Care bargaining unit. That issue will therefore not be addressed except to note the Board's holding in Melbet Jewelry Co., 180 NLRB 107 (1969), that: We will not, however, under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the op- portunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to repre- sent them. 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and bargain with the Union in that unit. As I have found that the Eye Care laboratory unit is a separate bargaining unit and that the Union does not represent a majority of the employees in that unit, those allegations in the com- plaint must be dismissed. The complaint as amended also alleges that as a result of Professional Eye Care's and Eye Care's refusal to bargain in that unit, Grigsby was terminated from his employment with Professional Eye Care. As I have found that Respondents had no duty to bargain in the Eye Care lab unit, that allegation must also be dismissed. The amended complaint also alleges that Grigsby was discharged from Professional Eye Care and refused employment by Eye Care in violation of Section 8(a)(3) of the Act. Those allegations are dis- cussed in detail below. C. The Discharge of Grigsby by Professional Eye Care and the Refusal to Hire Him by Eye Care 1. Factual findings Matt Grigsby began working for Professional Eye Care as a surface grinder in January 1985. After the Union began its organizational drive, Grigsby engaged in union activities. In the summer of 1985 Professional Eye Care discharged Grigsby. The legality of that discharge was litigated before Judge Anderson. In January 1986, before Judge Anderson's decision issued, Grigsby was re- instated pending that decision. Judge Anderson found that Grigsby's discharge was not in violation of the Act. However, Professional Eye Care kept Grigsby in its employ thereafter. In July 1986, which was several months after Judge Anderson's decision issued, David Vainio told Union Business Representative Gary Taylor that Professional Eye Care did not have any more trou- ble with Grigsby since he came back to work, but that Grigsby's job would be phased out when the lab in Mis- soula started. At the time Grigsby was reinstated, Profes- sional Eye Care knew of his union activity. Grigsby became a union officer in the summer of 1986. About August 18, 1986, Grigsby was told by Craig Tolman, who was to become the business manager for Eye Care, that there was a lab opening up in Missoula and that Grigsby could apply. The following day he picked up an application from his business manager, John Flynn, and sent it in. About August 29, 1986, Grigsby re- ceived a letter signed by Business Manager John Flynn notifying him of the termination of Grigsby's job special- ty area at the American Eye Care (Professional Eye Care) lab due to the sale of the surfacing equipment to another optical practice. The letter went on to state that it was anticipated that Grigsby's job would last from 7 to 14 days depending on when the equipment was delivered to the buyer's location. The equipment was delivered from Professional Eye Care's lab in Butte to Eye Care's lab in Missoula about September 10, 1986. On September 13, 1986, Grigsby spoke to David Vainio about working for Eye Care and David Vainio said that he would have to talk to Craig Tolman. On September 15, 1986, about 5 days after the equipment was removed from Butte, Grigsby was discharged. He was told that his services were no longer needed and the equipment that he had operated had been removed from the premises.10 After Grigsby applied for work at Eye Care, he spoke to Tolman, who informed him that Tolman would have to talk to David Vainio about the application. Grigsby was not employed by Eye Care. John Flynn, the business manager for Professional Eye Care, had a number of conversations concerning Grigs- by's application with both Tolman, the business manager of Eye Care, and with David Vainio. In one conversa- tion with Tolman, Tolman asked Flynn to evaluate Grigsby's application and Flynn replied that he thought Grigsby ought to go with the piece of equipment be- cause he had worked on it for a long time, knew it well, and could do a good job. Tolman said, "Well, what about his union deal?" and Flynn replied by saying that he did not think Grigsby would bring the Union over there. In another conversation Tolman told Flynn that he was not going to hire Grigsby because he had too many doubts about him. Flynn also talked to David Vainio about bringing Grigsby from Butte to Missoula. David Vainio said that he did not want to take Gngsby over there because he would start the Union there. Flynn replied that he did not think that he would start the Union. Thereafter, Flynn had several conversations with David Vainio in which Flynn requested that Grigsby be taken over to Missoula and in which David Vainio said that he would not do so because he did not want Grigsby to start the Union over there. I t 2. Analysis and conclusions The complaint alleges two separate violations of the Act regarding Grigsby. One is that Professional Eye Care fired him in violation of the Act and the other is that Eye Care refused to employ him because of his union activity. The legal analysis to be applied in cases of allegedly unlawful discharge or refusals to employ was recently restated by the Board in Joseph De Rario, DMD, P.A., 283 NLRB 592 (1987), in which it was held: 10 Grigsby credibly testified that about a week and a half before his termmnation, members of the Vaimo family saw him picketing on behalf of the Union at an establishment that was unconnected with the Vaimo family. I credit that testimony despite the denials of some of the Vamios. However, that additional union activity occurred after he had been noti- fied in writing that he was to be terminated. " These findings are based on the credited testimony of Flynn. Tolman did not testify David Vainto did not specifically deny that he made the remarks attributed to him by Flynn David Vaimo testified in effect that he left the decision regarding Gngsby's hiring to Tolman He averred that he discussed that subject with Tolman and he told Tolman to talk to Grigsby about the possibility of fitting him into the lab He fur- ther averred that he did not have any feelings one way or another about hiring him. He denied that he had any discussion with Tolman about re- fusing to hire Gngsby because of his union involvement Kevin Vaimo's testimony in that regard was not consistent with that of David Vamio Kevin Vamso averred that David Vamio felt that they should not hire Grigsby in Missoula because of something Gngsby did in the past I do not credit either Kevin or David Vainio Flynn, as business manager of Professional Eye Care, was testifying in a manner adverse to his own in- terest and his demeanor as he testified was such as to convince me that he was a forthright witness who was prepared to tell the truth regardless of the consequences to himself His testimony concerning his conversa- tions with Tolman and David Vainio was fully credible PROFESSIONAL EYE CARE In NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Supreme Court affirmed the test enunciated by the Board in Wright Lineio for determining whether an employee was dis- charged because of the exercise of Section 7 rights. Under Wright Line the General Counsel, under Sec- tion 10(c) of the Act, has the burden of establishing a prima facie case that the employee's protected conduct was a substantial or motivating factor in the employee's discharge or other adverse action taken by the employer. Once the General Counsel satisfies this burden, the employer can avoid liability under the Act by proving by a preponderance of the evidence an affirmative defense that it would have taken the same action even if the unlawful mo- tives had not existed. 'o Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir 1981), cert. denied 455 U S . 989 (1982), approved in NLRB v. Transportation Management Corp, 462 U S 393 (1983). Consideration will be given first to the allegation that Professional Eye Care discharged Grigsby because of his union activity. The General Counsel has established that Grigsby was active on behalf of the Union; that Profes- sional Eye Care knew of that activity; that David Vainio, who set labor policy for Respondents, was ex- tremely hostile toward employees who engaged in union activity (as demonstrated by his statements to Flynn); and that Grigsby was discharged. The General Counsel has established a prima facie showing that Grigsby was discharged because of his union activity. 12 However, I believe that Respondents have proved by a preponder- ance of the evidence that Grigsby would have been dis- charged from Professional Eye Care even if the unlawful motives had not existed. Grigsby was a surface grinder. The machines on which he worked were taken from Professional Eye Care's Butte lab and moved to Eye Care's lab in Missoula 120 miles away . The two labs con- stitute separate bargaining units . As set forth in detail above, the removal of the equipment was not a violation of the Act and Respondents did not unlawfully refuse to bargain about the removal. Grigsby's position was not filled by any new hire. There simply was no work for Grigsby to do in the Butte lab after the equipment he normally worked on was removed. Under these circum- stances, I believe that Respondents have sustained their affirmative defense. I therefore recommend that that alle- gation of the complaint be dismissed. Regarding Eye Care's refusal to hire Grigsby, an en- tirely different question is presented . Regarding that issue, the General Counsel again has established a prima facie case that Grigsby was not hired because of his union activity. However, here, Respondents have not es- tablished their affirmative defense. The credible evidence establishes that Grigsby was not hired because David 12 See Associated Milk Producers, 259 NLRB 1033, 1035 (1982), enfd 711 F 2d 627 (5th Cir 1983), in which the Board held- The elements of protected activity on the part of the discharged em- ployee, employer knowledge of the protected activity, and employer animus toward the Union, taken together, are sufficient to establish a prima facie case of unlawful discharge 747 Vainio feared that he would bring the Union from Butte to Missoula. David Vainio admitted as much to Flynn.13 I find that Eye Care refused to hire Grigsby on and after September 15, 1986, because of Grigsby's union activity and thereby violated Section 8(a)(3) and (1) of the Act. D. The Violence Against Flynn Professional Eye Care's business manager John Flynn" testified in this proceeding on March 26, 1987. He was called as a witness for the General Counsel. The hearing took place in an upstairs courtroom at a State of Montana courthouse in Butte, Montana. During his direct testimony Flynn gave evidence that was adverse to the interests of his Employer, Professional Eye Care. He testified in substance that David Vainio had admitted to him that Grigsby was not hired at Eye Care because David Vainio feared that Grigsby would bring the Union there. He also testified to details of the relationship be- tween Eye Care and Professional Eye Care which helped establish that they are a single employer. When he finished his direct examination , the hearing was re- cessed for lunch and he left the courtroom and walked downstairs in the courthouse to use the telephone. He entered the telephone booth and picked up the receiver. Before he could close the door to the telephone booth, David Vainio propped himself against the open door. Flynn asked David Vainio to please move so that he could make his call and David Vainio stood there with his arms folded so that Flynn could not close the door. David Vainio stood there with his mouth set and a mean look in his eye. He did not respond to Flynn's request that he move so that the door could be closed. Flynn asked David Vainio once again to move and again Vainio did not answer. Flynn then lifted his arm to try to close the door and in the process he touched David Vainio on the arm or shoulder with two forgers. At that point David Vainio punched Flynn in the mouth. Flynn momentarily blacked out and when he came to he was sitting in the phone booth with his glasses off and his lip bleeding. David Vainio was standing over him in front of the phone booth saying, "He hit me first, he assaulted me." Kevin Vainio then came to the phone booth and said that Flynn had hit David Vainio first and that he was filing charges against him. These findings are based on the credited testimony of Flynn. Flynn denied that he actually pushed David Vainio but he acknowledged in his testimony that he tried to "nudge" David Vainio out of the way and he put two fingers on his shoulder or arm. Captain Albert Johnson, a detective captain for the Butte Silver Bow Law Enforcement Agency, interviewed Flynn about the 13 For the weight that the Board and the courts have given to such "outright confessions" of unlawful conduct , see Advance Installations, 257 NLRB 845, 848 (1981), enfd 698 F 2d 1231 (9th Cir 1982). 14 There was some confusion about Flynn's title. He was business man- ager from February 1986 until March 1987 when he was verbally in- formed by David Vaimo that his duties were changed to that of rental property manager However Kevin Vamio testified that Flynn's job title did not change When Flynn questioned the Vamios about the matter, Kevin Vanno wrote to him saying that he was still business manager That letter was received by Flynn on March 30 On that day Flynn left Respondent's employ 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD incident. He testified that Flynn told him that when he tried to close the door, he touched David Vainio on the shoulder to try to push him out of the way but that he did not even put a full hand on his shoulder. Captain Johnson also testified that Flynn told him that he did not make any gesture that might make David Vainio think that he was about to hit him. It is clear that Flynn did touch David Vainio before David Vainio punched him. It is also clear, however, that the touching was simply part of an attempt to close the telephone booth door and whether it could be characterized as a "pushing" or a "nudging" or simply an accident, it was not of such a nature as to give David Vainio any reason for concern or any reason to believe that he had to protect himself. The Vainio family lined up en masse to support David Vainio. David Vainio testified in substance that he walked over to the telephone booth to ask Flynn a ques- tion concerning certain documents and that Flynn, with- out any provocation, punched him in the jaw. David Vainio acknowledged that he did strike Flynn but he tes- tified that he did so only after Flynn had punched him. Kevin Vainio, David Vainio's brother, and H. Marie Vainio, their mother, testified that they witnessed the entire event and that Flynn punched David Vainio on the jaw while David Vainio stood there with his hands in his pockets and that David Vainio then replied by striking Flynn. Marie Vainio, David Vainio's wife, testi- fied that when he came home that night he had a mark on the left side of his chin that was not there when he had left that morning. Between the testimony of Flynn and the four Vainios, who testified about the incident, I unhesitantly credit Flynn and discredit the Vainios. David Vainio's version of the incident, as corroborated by the rest of his family, is inherently implausible. Flynn had just testified in a manner that was damaging to David Vainio. As indicated above, I believe he did so because he was an honest witness. There is no indication that he had any reason to bear the type of anger against David Vainio that would lead to an unprovoked assault. If David Vainio is to be believed, then Flynn punched his boss with no apparent motive. On the other hand, it is easy to understand why David Vainio would have been extremely angry with Flynn. Flynn had just testi- fied in a way that could have hurt David Vainio very badly. Immediately after that testimony was given, ac- cording to the testimony of Flynn, David Vainio fol- lowed him to the telephone booth, blocked the door of that booth, and punched him in the mouth. My observa- tion of the demeanor of the witnesses as they testified also supports what I believe to be the inherent probabil- ities of the situation. Flynn was an extremely convincing witness. His demeanor was such as to lend credence to his testimony. That was not true regarding the Vainios. They appeared to be circling the wagons to defend the family without too much concern over the accuracy of the facts they presented. After the luncheon recess Flynn resumed the stand to give a short description of what happened. He was then excused so that he could get medical attention and the case was put over for several weeks. On the resumption of the trial, Flynn resumed the stand and was cross-ex- amined by Respondents. The complaint alleges, the answer admits, and I find that Professional Eye Care's business manager John Flynn was a supervisor within the meaning of the Act. Supervisors are generally excluded from protection under the Act but there are several exceptions to that general rule. Those exceptions relate to situations in which the action against a supervisor interferes with the exercise of employees' Section 7 rights. Where, as here, the supervisor was assaulted for giving testimony adverse to the employer's interest at an NLRB proceeding, the supervisor must be protected because of the need to vin- dicate the rights of employees. Pontiac Osteopathic Hospi- tal, 284 NLRB 442 (1987). As the Board held in Parker- Robb Chevrolet, 262 NLRB 402 (1982), enfd. 711 F.2d 383 (D.C. Cir. 1983): an employer may not discharge a supervisor for giving testimony adverse to an employer's interest ... at an NLRB proceeding. . . . [T]he protection afforded supervisors stems not from any statutory protection inuring to them, but rather from the need to vindicate the employees' exercise of their Section 7 rights. I find that Respondents, through David Vainio, violat- ed Section 8(axl) of the Act by assaulting Flynn because Flynn gave testimony adverse to Respondents' interest at an NLRB proceeding. E. The Discharge of Dalasera Leonard Dalasera is an optician who is employed by Professional Eye Care. He was active on behalf of the Union and Respondents were aware of that activity.'s He testified on behalf of the General Counsel in the in- stant case and also in an NLRB injunction proceeding before a United States district court judge. Dalasera was discharged on April 10, 1987. The reason given for the discharge was that he had falsified his time- card by not showing that he left work for about 20 min- utes at the request of the police to be interviewed con- cerning cross-charges filed by Flynn and David Vainio in the assault incident discussed above. Dalasera was reinstated on May 26, 1987. The General Counsel took the position that Dalasera was reinstated subject to the outcome of this case and, in effect, that Dalasera is entitled to an unconditional offer of reinstate- ment. On March 13, 1987, Dalasera appeared before U.S. District Court Judge James Batt in Billings, Montana, where he testified about matters relating to an injunction obtained by the Board against Respondents. After the trial David Vainio refused to speak to him. When he asked David Vainio a question, Vainio would just whis- tle and walk away. Dalasera had to get another person who worked with him to ask David Vainio a question so that he could get an answer. That refusal to talk to him ' 6 In the case heard by Administrative Law Judge Anderson, it was alleged that Dalasera was discharged in violation of Sec. 8(aX3) of the Act The fudge found meet to that contention Whether that finding is sustained in the exceptions before the Board , Respondents knew from its participation at that trial that Dalasera was a union activist PROFESSIONAL EYE CARE lasted until April 9, 1987, when David and Leonard Vainio spoke to him about an alleged falsification of his timesheet. He was discharged the following day. David Vainio assaulted Flynn in the phone booth on March 26, 1987. The following Monday, March 30, 1987, Flynn returned to work at Professional Eye Care. Dala- sera was also working that day . That morning Dalasera received a phone call at work from Albert Johnson, the Butte, Montana chief of detectives. Johnson said he was conducting an investigation into the alleged assault and he asked Dalasera to come to the police station to give a statement concerning what he saw.' a Dalasera asked Johnson whether he could come during his lunchbreak or after work. Johnson replied that those times were not acceptable and he asked Dalasera to come right away. He told Dalasera that Dalasera only worked a half a block away and it should not be a problem. At that time Flynn was the only management official on the premises. Both David and Leonard Vainio were out of town. Flynn was a supervisor. Dalasera called Flynn from the lab and reported to him what Johnson had said. Dalasera asked Flynn for permission to go to the police station and Flynn told him he could go. Flynn also told him that whatever time he lost from work he could make up the same day. Flynn credibly testified that when he spoke to Dalasera about going to the police station, he assumed that Dalasera would not log the time in and out to reflect that meeting and that Dalasera would make up the time during lunch or after work. That procedure had been followed before and there had been no problems. Dalasera left the lab at 11:23 a.m. and drove his car a half block or a block to the police station where he ar- rived at 11:25 a.m. Detective Johnson taped an interview and Dalasera left the police station at 11:43 a.m. He drove directly back to the lab where he arrived at about 11:45 a.m. All in all he was gone from the lab about 22 minutes. Dalasera made up the lost time on the same day. That morning he had reported for work about 7:50 a.m. which was 10 minutes before his normal time. He left for lunch about 12:05 or 12:10 p.m., instead of 12 noon." At the end of the day Dalasera worked till 5:05 or 5:10 p.m.'s The employees of Professional Eye Care fill in their own time records. Dalasera filled in his time report for March 30 with the hours 8 to 12 and 1 to 5. He had re- ceived permission to go to the police station from Super- visor Flynn; he had made up the missed worktime as he had been instructed to do by Flynn; and he filled out the time records as both he and Supervisor Flynn under- 16 Dalasera did not witness the actual assault but he did see some inci- dents that led up to it 17 Flynn testified that he saw Dalasera leave at 12 05 or 12.10 p.m and Dalasera testified that he left about 12.10 p.m Mane Vamio, David Vain- io's wife, testified that she went to the lab at 1205 that day and Dalasera was not there I believe that the testimony of Flynn and Dalasera was more reliable than that of Mane Vainto and I find that Dalasera did work some 5 or 10 minutes during his lunch hour. 18 This finding is based on the credited testimony of Dalasera. Mane Vamto said that she came to the lab at 5 05 p.m and found that the door was locked She averred that she did not see Dalasera 's car outside To the extent that Mane Vainio's testimony is inconsistent with that of Dala- sera, I credit Dalasera 749 stood they should have been filled out. Flynn credibly testified that on a number of occasions he had authorized employees to take off from work for about 15 minutes for personal reasons and to make up the time the same day without showing the short "in and out" periods on the time records. Flynn also credibly testified that on oc- casion he told David Vainio that that procedure was being used." 9 On April 9, 1987, David, Kevin, and H. Marie Vainio met with Dalasera. Union Representatives Taylor and Duggan were also present. The Vainios accused Dala- sera of falsifying his time records by not putting down the time he had been away from work at the police sta- tion. Dalasera replied that he had Flynn's permission to go and that he had made up the time. The Vainios took action against Dalasera the next day, without discussing the matter with Flynn, who had given permission for Dalasera to leave, or with the de- tective, who had requested him to come to the police station. On April 10, 1987, Dalasera was given a letter signed by David Vainio stating that he was suspended without pay from his employment because of misstate- ments on his timecard for hours worked on March 30. The letter stated that the suspension would continue in- definitely until Dalasera or his representatives produced cause why he should continue in employment. The letter referred to a statement on the bottom of the timecard that indicated that falsification of hours was cause for immediate discharge and went on to state that at the March 9 meeting, the sole justification offered for Dala- sera's conduct was that he was requested by a police of- ficer to be at the police station and that he had the per- mission of Flynn to go there. The letter then stated that Dalasera was not justified in falsifying the hours on the timecard. The sequence of events set forth above establishes that Dalasera did not falsify his timecard . He correctly under- stood from Flynn and from observing the past experi- ences of other employees that short periods of absence from work that were authorized by Flynn could be made up without encumbering the time records with the de- tails of the minutes "in and out." It is not unusual for employers to have some "de minimis" procedure regard- ing bookkeeping. Otherwise an employee would have to punch in and out every time he went to the bathroom. Supervisor Flynn had established such a procedure and David Vaimo was aware of it because Flynn had on oc- casion told him of it. Yet, the Vainios discharged Dala- sera without even interviewing Flynn about the incident. Respondents did introduce some evidence to show that employees were disciplined for abusing worktime but none of those situations were comparable to the instant case. One employee, Pam Kroll, was discharged on April 26, 1987, because her office in Helena was closed and the lights were off when that office was supposed to be open. There was no indication that she was absent with supervisory approval. Another employee, Lavon Hun- inghake, was removed from her position as office manag- 19 1 do not credit David Vamio's testimony to the effect that he had no knowledge that such a procedure was being used 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er in Copper City and transferred to Butte because she took time off while on the clock. Again, there is no indi- cation that she had the permission of a supervisor to take the time off. David Vainio testified that prior to February 4, 1987, the payroll was made up before work for the payroll period had actually been completed . In substance, an em- ployee was guessing as to what his hours would be near the end of the payroll period. Under such circumstances an employee could not be criticized if the time he antici- pated to work was incorrect. A new system was institut- ed whereby all payroll reports were completed before the payroll was made up. Respondents contend that they held employees much more accountable for their time- cards after the change. However, that would have little to do with the instant case. Dalasera was fully accounta- ble for properly filling out his time reports. Under the circumstances set forth above, he simply did nothing wrong.20 I find that the reasons advanced by Respond- ents for the discharge of Dalasera were purely pretex- tual. The General Counsel has established that Dalasera was active on behalf of the Union and testified on behalf of the General Counsel in Board and Board-related court hearings; that Respondents had knowledge of Dalasera's activities; that Respondents harbored a virulent animosity against people who engaged in such activities (as indicat- ed by David Vainio's actions in assaulting Flynn); that Dalasera was discharged a short time after he gave testi- mony at a Board hearing; and that the Respondents' as- serted reason for the discharge was pretextual. Regard- ing Respondents' defense, it is also noted that the chain of events leading to Dalasera's leaving work to go to the police station was triggered by Respondents' own mis- conduct (David Vainio's assault on Flynn). The General Counsel has established a strong prima facie case to es- tablish that Dalasera was discharged because of his union activity and his testimony before the Board and court. Respondents have come forward with no credible evi- dence to rebut that case.21 Using the criteria set forth in Wright Line,22 I find that Respondents discharged Dala- sera on April 10, 1987, because of Dalasera's union activ- ity and because he gave testimony in Board and Board- related court proceedings. In doing so, Respondents vio- lated Section 8(a)(1), (3), and (4) of the Act. F. The Refusal-to-Bargain Allegations 1. Background The complaint alleges that Respondents unlawfully re- fused to bargain in a number of different ways. One pri- mary allegation is that Respondents refused to extend the Butte bargaining unit to Missoula when the Eye Care lab 20 In a proceeding before the Montana Labor Department, it was held that Dalasera was disqualified from receiving unemployment benefits be- cause he was discharged for violating company policy regarding falsifica- tion of timecards I have fully considered that decision , which was based on a hearing held on the telephone . Nonetheless, I must give primary re- liance to the record in this case that led to the findings set forth here 21 I do not credit David Vaimo's assertion that he disregarded Dala- sera's union activity in deciding to suspend him 22 See the analysis set forth in C, 2, above began operations. As is discussed in detail above, that al- legation has been found to lack merit. The complaint also alleges that Professional Eye Care unlawfully re- fused to provide information to the Union, made unlaw- ful unilateral changes in the hours of employment at the Butte lab, and refused to bargain in good faith with the Union. For the reasons set forth in detail below, I be- lieve that those allegations are meritorious. In addition, the complaint, as amended, alleges two other incidents that General Counsel contends constituted refusals to bargain. They relate to a decision to move to Billings and a decision to lease or close the Butte lab. Those alle- gations have not been sustained. 2. The decision to move to Billings The complaint, as amended, alleges that on or about March 3, 1987, Respondent informed the Union of its de- cision to remove unit work and equipment from its Butte, Montana facility to a new facility in Billings, Montana. On January 26, 1987, Kevin Vainio wrote to the Union saying that American Eye Care was considering installing a lab in Billings, that American Eye Care did not have a present intention to close the lab in Butte, and that it was hoped that the workload in Butte would not be reduced. The letter went on to state that American Eye Care hoped that final arrangements could be made within 2 weeks, that the Union could bargain within that timeframe, and that it would welcome any input the Union had. Representatives of Respondents and the Union met to discuss the letter on March 4, 1987. Kevin and David Vainio told Union Representatives Duggan and Taylor that they had taken over a laboratory in the Billings area and that they had made a deal to put some of the equip- ment from Butte in that lab. David Vainio said that they had to talk about that to the Union to get the Union's approval. Duggan replied that Respondents always man- aged to notify them after they had already decided to do something rather than to negotiate. Kevin Vainio said that nothing was in concrete and they could revoke the action. Either Kevin or David Vainio said that they were going to establish an optical outlet in Billings, that it would have laboratory equipment similar to Butte, and that they wanted to move some equipment from the Butte lab there.23 In fact no equipment was ever moved from Butte to Billings. Professional Eye Care had purchased another company's practice in Polson, Montana, and the equip- ment from that practice was moved to Billings. That equipment was never set up in Billings, but as of the date 22 These findings are based on the credited testimony of Duggan. Tay- lor's testimony was somewhat different from that of Duggan. Taylor averred that the Vaimos said that there might be a reduction of work and the number of people at Butte, that Duggan objected to the loss of work and said they had a right to negotiate before they made the move and not after, and that the Vainios said that they had not made the move and were contemplating it, but that it did not matter because they were going to make the move I believe that Duggan was a more accurate witness than Taylor and I credit him, particularly with reference to Duggan's as- sertion that the Vainios said that nothing was in concrete and they could revoke the action PROFESSIONAL EYE CARE of the trial was still sitting on the floor. The only lab work that was done in Billings was the retinting of lenses that come from the Butte or Missoula labs and had not been done properly there . Instead of inconveniencing the patient for 4 or 5 days by shipping the lenses back to the other labs, they were retinted in Billings . There is no edging, finishing, hardening, or grinding done in Billings. The amount of tinting done at Billings does not cause the employees at the Butte lab to lose any hours of work and no hours were cut at Butte because of that tinting.24 The complaint does not allege that the removal of the tinting work was a violation of the Act. It is limited to the assertion that on or about March 3, 1987 , Respond- ents informed the Union of the decision to remove unit work and equipment to Billings . The facts set forth above establish that what Respondents did was inform the Union of their intention to take certain actions. Their subsequent conduct clearly established that that state- ment of intention was nothing more than a proposal for bargaining. After negotiating with the Union, Respond- ents did not carry out their stated intention . No equip- ment was moved from Butte to Billings and the Billings laboratory was not opened except to the very limited extent that retinting work was performed where it had been improperly performed in the other labs. I therefore find that Respondents did not unlawfully inform the Union of its decision25 to remove unit work and equip- ment from Butte to Billings as alleged in the complaint. 3. The decision to lease or close the Butte lab The complaint, as amended during the course of the hearing, alleges that on or about March 26 , 1987, Re- spondents informed the Union that they were closing their lab facility in Butte, Montana. On March 25, 1987, Union Business Representative Taylor received a telephone call from Kevin Vainio who told him that the Vainios were thinking about leasing the lab. Kevin Vainio also told Taylor that they were going to give Dalasera the first option to lease the lab and that they were contemplating getting out of the laboratory business altogether in Butte. He said that they were going to lease it out and if they could not lease it out, they were going to close it.26 Later in the day on March 25, 1987, Vainio wrote to Taylor "to confirm dates for bargaining on the lease of the laboratory and equipment." The letter goes on to give dates that Respondents were available for bargain- ing. The letter was delivered to the Union that day. The following day, March 26, 1987, Taylor replied to the Re- spondents' March 25 letter saying that he could not meet 24 These findings are based on the uncontradicted testimony of Flynn and David Vain 211 See the discussion of "decision" bargaining in the following section 26 These findings are based on the credited testimony of Taylor David Vaimo testified that they anticipated leasing out the Butte lab, that he and his brother felt they should divest themselves of the lab in general and spend most of their time doing examinations, and that they seriously considered leasing the Butte lab, the Missoula lab, and any other lab that they might have David Vaimo acknowledged that they notified the Union of their intention to lease the Butte lab, but he denied that he said anything about closing the lab Where David Vainio's testimony conflicts with that of Taylor, I credit Taylor 751 immediately because of prior scheduling and he needed up to 3 weeks to schedule meetings. On March 25, 1987, David Vainio spoke to Leonard Dalasera about leasing the lab. David Vainio said that he was going to lease the lab and that Dalasera had the first option to lease it. He also told Dalasera that he would lease it to someone else if Dalasera was not interested. David Vainio told Dalasera that if he leased it , he could negotiate with the Union. As of the last day of the trial Respondents were still operating the Butte lab. There is no indication in the record that there was any further discussion between Re- spondents and the Union over Respondents' proposal to lease or close the Butte facility. The complaint alleges that Respondents violated the Act by informing the Union that they were closing their lab facility in Butte . Assuming for the purpose of argu- ment that Respondents had an obligation to bargain about going out of the lab business as well as the effect of such a lease or closure on the bargaining unit employ- ees, the facts set forth above do not establish a violation of the Act. There are two parts to a decision-making process. An employer must make a decision with regard to what he wants to do. That decision deals with his own mental processes and is not subject to bargaining. It is quite another matter when the employer takes action based on that decision . At that point there may well be a duty to bargain. In the Lange Co., 222 NLRB 558, 563 (1976),27 the Board affirmed the decision of Administra- tive Law Judge William J. Pannier III, which held in part as follows: Counsel for the General Counsel, however, argues that Respondent's conduct is tainted by virtue of the fact that it had already made the deci- sion to transfer and lay off employees before advis- ing the Union. Yet, in no case has the Board held that an employer must defer making a decision con- cerning terms and conditions of employment until it has first conferred with the representative of its em- ployees. The requirement is that, after reaching the decision, the employer must then notify the repre- sentative and afford the opportunity to discuss that decision and to consider alternative proposals. Thus, in Ozark Trailers, Incorporated, 161 NLRB 561 (1966), the Board made it clear that the illegality lay not in the fact that the employer had first made the decision before consulting with its employees' representative. The illegality lay in the implementa- tion of that decision prior to affording the repre- sentative an opportunity to advance and discuss al- ternative courses of action . Id. at 568. This is also illustrated in Moffitt Building Materi- als Company, et a!., 214 NLRB [655] (1974), where the Board found that the employer had not violated the Act even though it had made a decision to liqui- date its business without so much as a fare-thee-well to the bargaining representative, and where the latter then learned of that decision, but made no 27 See also Lemon Tree, 231 NLRB 1168 (1977), enfd 618 F 2d 51 (9th Ctr 1980) 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD effort to bargain with the employer. Id. Similarly, in Association of Motion Picture and Television Produc- ers, Inc., 204 NLRB 807 (1973), the representative first learned of the decision when it was announced by the employer. Nonetheless, no violation was found as no bargaining was thereafter requested by the representative. If, as is contended in the instant case, it were the making of the decision prior to consulting with the representative that constituted the violation, then violations would have been found in both of these cases. See also: A- V Corpora- tion, 209 NLRB 451, 453-454 (1974). Indeed, to accept the General Counsel's argu- ment in this matter would be to create great insta- bility in bargaining relationships, for if formulation of decisions had to be deferred, then bargaining would be reduced to being conducted hypothetical- ly in a vacuum. Employers are entitled to first reach a decision. This provides the starting point for any bargaining which then might follow. How- ever, employers must then be willing to consider the alternatives proposed by the bargaining repre- sentatives before implementing those decisions. Respondents have not implemented any decision they may have made to lease or close their Butte lab and have given the Union advance notice of their intention and have provided the Union with a fair opportunity to bar- gain. Respondents have not violated the Act by inform- ing the Union of a decision to lease or close their lab fa- cility and that allegation of the complaint must be dis- missed. 4. The request for information The complaint, as amended, alleges in substance that the Union requested and Respondents refused to furnish the sales agreement for the equipment that was trans- ferred from the Butte lab to the Missoula lab, as well as the lease agreement between David Vainio and the Southgate Mall in Missoula for the Eye Care Missoula lab. The background facts needed to put that information in context are set forth in detail above. Also as found above the Eye Care lab in Missoula constitutes part of a single employer with Professional Eye Care in Butte even though each has a separate bargaining unit for labo- ratory employees. At a negotiating session in September 1986 Kevin Vainio took the position that Professional Eye Care had no duty to bargain about the Missoula lab. He told the union representatives that the equipment from Butte had been sold to David Vainio and that David Vainio was the sole operator of the Missoula lab. Union Representa- tive Duggan asked to see a copy of the sales agreement and a copy of the lease on the Missoula lab. Kevin Vainio replied that it was none of the Union 's business. However, a few moments later, Kevin Vainio had Flynn bring a copy of what appeared to be the last page of a lease. In addition, at some undisclosed time after the bar- gaining session, Kevin Vainio called the union office and told Taylor that the lease would be made available for a certain cost. Taylor offered to let Respondents use the Union's copying machine. By letter dated November 12, 1986, Kevin Vainio offered the Union a copy of the lease and the related documents. However, the letter went on to state: When we receive payment of the sum of $26.50, which represents a reasonable cost for copies and copying by our employees, we will be happy to provide you with a copy. This amount is for 53 pages at the rate of $.50 per page, which is the amount charged by the federal courts for copies. By letter dated November 17, 1986, Taylor informed the Respondents that he would not pay any money or fees for any documentation that the Union needed from the Respondents. In the letter Taylor stated that the Union had its own copying machine and if Respondents brought the documents to the Union office, the Union would make a copy for itself and another for Respond- ents. The evidence does not indicate that any further action was taken by either Respondents or the Union and the documents were not given to the Union. The information sought by the Union was reasonably related to its need to evaluate whether work was being unlawfully diverted from the Butte lab to the Missoula lab, whether Eye Care was part of a single employer with Professional Eye Care, and whether the Union had the right to represent the lab employees of Eye Care. A union may require information that will help determine whether a recipient of transferred work is in some way related to the transferring employer where it represents the employees of the transferring employer. Bentley-Jost Electric Corp., 283 NLRB 564 (1987). Information that goes to the core of the employer-employee relationship is presumptively relevant. Where the information sought goes to matters occurring outside of the unit, relevance must be proven. Calmat Co., 283 NLRB 1103 (1987). Here the General Counsel has established that the re- quested information was needed by the Union for it to evaluate how it should proceed with its collective-bar- gaining responsibilities. However, the finding that the in- formation sought was relevant does not end the inquiry. As the Board held in Century Air Freight, 284 NLRB 730 (1987), an employer and a union should bargain in good faith regarding conditions under which relevant informa- tion is to be furnished. Here the condition that Respond- ents imposed was that the Union pay $26.50 for 53 pages of photocopies at 50 cents a page. Though the Union re- fused to pay that amount, it did offer to make the photo- stats itself. Respondents neither accepted that offer nor made any counterproposal. It simply did not furnish the documents. As the Board held in Tower Books, 273 NLRB 671 (1984), enfd. mem. 772 F.2d 913 (9th Cir. 1985): Here, the Union requested information such as the names, addresses, and job classifications of only 12 employees, and their wages, hours, and other terms and conditions of employment. The information sought was basic and encompassed matters which employers are required to provide to enable unions to bargain intelligently and to fulfill their obliga- tions as the selected representative of the employ- PROFESSIONAL EYE CARE er's employees.3 The cost and burden of compliance ordinarily will not justify an initial, categorical re- fusal to supply relevant data.4 "If there are substan- tial costs involved in compiling the information in the precise form at the intervals requested by the Union, the parties must bargain in good faith as to who shall bear such costs . . . ."5 The Respondent expressed no willingness to bargain about costs. Ad- ditionally, the onus is on the Respondent to show that production of the data would be unduly bur- densome. There is nothing in the record to substan- tiate such a claim. On the contrary, it can be in- ferred from the Respondent's failure to produce evi- dence of substantial cost in response to the Union's claim that the cost would be "de minimis," that the costs for compiling basic information on only 12 employees was indeed negligible. Mindful that each case of what constitutes good-faith bargaining must turn on its particular facts, it is clear that the Re- spondent's refusal to supply the information-while neither justifying its request for costs nor offering to bargain over the matter-was unreasonable. A lack of good faith can be inferred therefrom. 3 See, e.g, Union Carbide Corp, 197 NLRB 717 (1972). * See Electrical Workers IUE v. NLRB, 648 F.2d 18 at 26 (D C Cir 1980) 5 Food Employers Council, 197 NLRB 651 (1972) Contrary to the assertion of our dissenting colleague , this case indicates that there is indeed a sound basis in the law for the Union's request that the Respondent demonstrate a burdensome financial impact before the Union would discuss costs I believe that case is controlling in the instant situation. Here Respondents started with an outright refusal to fur- nish the relevant information. Later Respondents offered to furnish information at a set fee but did not propose to bargain about the fee. When the Union offered to make the photocopies itself, Respondents did not accept the offer or make any counterproposal. Under these circum- stances, a lack of good faith can be inferred. I find that Respondents violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with photo- copies of David Vainio's lease on the Eye Care Missoula facility and the sales agreement under which David Vainio purchased equipment from Professional Eye Care. 5. The changes in hours Until June 16, 1986, Respondents' employees at the Butte lab worked a regular 8-hour day, 40-hour week. On June 16, 1986, their hours were reduced to 6 hours a day. Sometime in May 1987 Business Manager Flynn had a conversation with Leonard Vainio in which they dis- cussed the possibility of a cut in hours. Leonard Vainio told Flynn that the Department of Labor might require substantial back wages for overtime, but it was not a problem because they would cut hours until they made up the lost wages. On June 15, David Vainio instructed Flynn to cut the hours of the lab employees to 6 hours a day. The same day Flynn told employees Leonard Dala- sera, Mike King, Gregg Wedlek, and Matt Grigsby that their hours were to be reduced. The cut in hours was put 753 into effect the following day. No notice was given to the Union about Respondents' intention to change the hours, and the Union did not become aware that the hours had been changed until June 25, 1986. Except for a few exceptional days where the employ- ees worked 8 hours, the 6-hour workday remained in effect until August 20, 1986, when the workday was re- duced to 5 hours. Not long before that, the Labor De- partment issued an order requiring the payment of back wages for overtime. On August 19, Leonard Vainio told Flynn to reduce the hours and David Vainio authorized him to send out a notice to that effect. On August 19, 1986, Flynn drafted a letter to Union Representative Taylor telling him that due to economic and business considerations, the hours worked in the Butte lab "have been" reduced to 5 hours a day effective August 20. The following day, August 20, Flynn distrib- uted a notice to employees Dalasera, King, Grigsby, and Valeno, which stated in part that their hours were re- duced to a 5-hour day effective immediately. After noti- fying the employees that their hours had been reduced, Flynn notified the Union of the change by delivering the letter that he had drafted the previous day. The 5-hour day for Butte lab workers remained in effect until September 5 or 6, 1986, when the hours were raised to 8 hours a day. They remained at that level thereafter. There is no contention by the General Counsel that the change in hours was motivated by antiunion consid- erations. The sole question presented is whether the changes in hours were unlawful because Respondents made them unilaterally without giving the Union an op- portunity to bargain about them. Respondents justified their action on several grounds. None were persuasive. Both Kevin and David Vainio testified that before reduc- ing the hours they made a number of phone calls to the Union but were unable to reach Union Representative Taylor because he was out of town. They both asserted that Taylor did not always respond to the telephone messages they left with his office.28 Taylor's telephone records establish that the Vainios did call him and did leave messages . Kevin Vainio testified that on one occa- sion he left a message that he wanted to talk to Taylor about reduction in hours. I do not credit Kevin Vainio's testimony in that regard. Other than that evidence, there is nothing to indicate that the Union was informed of Respondents' desire to reduce hours until after the hours were in fact reduced. Regarding the August 20 reduction in hours, Respondents did notify the Union in writing, but only after the change had been put into effect. Obvi- ously, Respondents knew how to use the mail. Under these circumstances, I do not believe that Respondents made a reasonable effort to notify the Union of their in- tention to reduce the hours and did not give the Union any opportunity to bargain about the matter until after the hours were changed. zs I credit Taylor's testimony to the effect that he always did answer his messages. However, he acknowledged that he was often out of town His delays in returning calls might well have led the Vamios to believe that he was ignoring their calls. 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondents also contended that there was a time lag between the time they requested bargaining and the time that the Union would make its representatives available for bargaining. However, Respondents cannot be heard to complain about the possibility of the Union's delaying a response to a notice of intention to reduce hours when such a notice was never given. The Union was never given an opportunity to bargain. Respondents also contend that they had the right to change the hours because of an agreement on a manage- ment-rights clause. Prior to the events in question here, the Union had proposed a management-rights clause that included the right of the employer to schedule the work subject to the terms of the agreement. Initially, Respond- ents said they had no objection to that clause but then in a counteroffer Respondents proposed a management- rights clause that would specifically have given them the right to determine "employee hours" as well as the scheduling of work. The Union never agreed to that change. There was no agreement either on that clause or on a contract in general . Even if there were an agree- ment on that clause and the clause was subject to the in- terpretation that Respondents wish to give it, the clause would have no operative effect until an agreement was reached on a contract as a whole. Agreement on one part of a contract is in the usual case contingent on agreement concerning the rest of the contract . Respond- ents did reduce the hours of work of the employees in the Butte lab without notifying the Union of their inten- tion to do so and without affording the Union an oppor- tunity to bargain about it. Where, as here, an employer is bargaining with a Board-certified union, it violates Section 8(a)(5) and (1) of the Act if it unilaterally and in the absence of impasse makes changes in the terms and conditions of employ- ment of its employees. NLRB v. Katz, 369 U.S. 736 (1962); St. Elizabeth Community Hospital, 240 NLRB 937 (1979). The Union is the duly certified representative of Professional Eye Care's laboratory employees; hours of work constitute a mandatory subject of bargaining; though the unit was small, the change in the number of hours worked was substantial and applied to the entire bargaining unit; the changes were made without prior notice to the Union and without any opportunity on the part of the Union to bargain about them before they were put into effect; and Professional Eye Care has not come forward with any credible defense that would jus- tify the unilateral change in hours. By reducing the number of hours worked as set forth above, Professional Eye Care has violated Section 8(a)(5) and (1) of the Act. 6. The failure to bargain in good faith The second amended consolidated complaint alleges that Respondents failed to bargain in good faith with the Union. The general law regarding good-faith bargaining has been set forth at length in such cases as West Coast Casket Co., 192 NLRB 624 (1971), enfd. in pertinent part 469 F.2d 871 (9th Cir. 1972), and Borg-Warner Controls, 198 NLRB 726 (1972). Section 8(d) of the Act requires the employer and the union to confer in good faith with respect to wages, hours, and other terms and conditions of employment. That section does not compel either party to agree to a proposal, but there must be a good- faith effort to reach an agreement. Each case stands on its own and good faith must be determined by scrutiniz- ing the totality of the parties' conduct. As was held in West Coast Casket Co., supra at 636: From the context of an employer's total conduct, it must be decided whether the employer is lawfully engaged in hard bargaining to achieve a contract that it considers desirable or is unlawfully endeavor- ing to frustrate the possibility of arriving at any agreement. Sunbeam Plastics Corporation, 144 NLRB 1010. Professional Eye Care and the Union held bargaining sessions on July 24 and September 19, 1986. The com- plaint alleges that Respondents manifested bad faith in those sessions. The parties had engaged in bargaining for some time before then. By December 13, 1985, at least some progress had been made. At that meeting Kevin Vainio told the union representatives that there was agreement regarding union security, hours of work, fore- men working, discrimination, posting of contract, bi- monthly pay periods, successor clause, grievance and ar- bitration, moonlighting clause, management rights , funer- al leave, jury duty, civil rights clause, minimums, and language concerning the length of the agreement. Kevin Vainio also told the Union that open issues included wages, vacation, insurance, holidays, report and callout, and jurisdiction. At that meeting Union Representative Duggan asked Kevin Vainio for a written counterpro- posal before the next meeting. They met again on Janu- ary 17, 1986. Professional Eye Care had no counterpro- posal and once again Duggan asked for one. David Vainio was present at that meeting. He said that his bottom-line position was that wages and costs had to be frozen, but later David Vainio proposed to cut Dala- sera's pay from $7 to $5 and the pay of other lab em- ployees from $4.50 an hour to $4 an hour. David Vainio said that all Professional Eye Care had to do was talk to the Union about those things and it did not have to agree with the Union on anything. He told the union represent- atives that John Flynn would talk to them until 5 p.m. and he left the meeting. On June 25, 1986, David Vainio called the Union and asked to schedule a meeting . The following day Union Representative Duggan wrote to David Vainio. The letter said that the Union could not meet on such short notice and that the Union's schedule did not allow a meeting at that time or the following week. It went on to state that during the meeting of January 17, 1986, the Union had requested a written counterproposal, which had not yet been received. In the letter Duggan took the position that a written proposal was needed for any meaningful negotiations to take place and reference was made to David Vainio's verbal rescission of certain ac- tions taken by Kevin Vainio at the previous meeting of December 13, 1985. The parties did meet for a bargaining session on July 24, 1986. David Vainio and Flynn represented Profes- sional Eye Care. Duggan and Taylor represented the Union. David Vainio arrived at the meeting 15 or 20 PROFESSIONAL EYE CARE minutes after it was scheduled to start. He began by complaining about Dalasera's work. He said that Dala- sera was going to have to be reprimanded or have his wages cut to $5 an hour. Duggan replied that they would have a grievance and disciplinary procedure if a contract was agreed to, but at that point they should dis- cuss negotiations. There was discussion about the open- ing of the Missoula lab and how it would affect the Butte lab. In mid-1985 the Union had given Professional Eye Care a proposed contract. At the July 24, 1986, meeting Professional Eye Care gave the Union a document enti- tled "Changes to Machinists Union Contract." The docu- ment was an article by article response to the Union's original proposal showing "no change," "omit," or pro- posing new language . The Professional Eye Care's pro- posal called for $5 an hour for people able to perform all lab duties, and $4 an hour for people able to perform only certain duties. The Union's original proposal called for a full grievance procedure culminating in binding ar- bitration. Professional Eye Care's counterproposal al- lowed for the filing of grievances, but contained a provi- sion stating that if no agreement was reached on the grievance, the decision of the employer prevailed. Pro- fessional Eye Care's proposal also provided that all costs of grievances were to be borne by the Union. Under Professional Eye Care's proposal there would be no binding arbitration, all costs of arbitration would be on the Union, and the decision of an arbitration board would be taken into consideration by the employer but not be binding on it. The Union's proposal allowed au- thorized representatives of the Union to contact employ- ees during shop hours as long as the contacts did not un- reasonably interfere with the duties of the employees and as long as other conditions were met. Professional Eye Care's proposal was that no agent of the Union could contact employees during work hours. Professional Eye Care's proposal ended with a clause that would provide for costs incurred by careless acts of employees being re- corded and subtracted from the employees' pay. Flynn also gave the Union a document entitled "Lab Quality Guidelines" which set forth procedures for qual- ity control and employee discipline. During the course of the meeting David Vainio stated that there would be no contract unless he was permitted to recover any costs that were brought about by either negligence or the will- ful destruction of property by his employees. Duggan questioned the legality of that type of clause. Less than an hour after negotiations began, David Vainio left the meeting. Before he left, Duggan requested that he be given something in writing to show that Flynn had authority to bargain. David Vainio signed a document stating that he authorized Flynn to bargain in his place when necessary.29 After David Vainio left, the meeting only lasted another half hour. During that time they discussed Professional Eye Care's proposals. Duggan said that they had already reached agreement on a clause for working foremen. Flynn replied that David Vainio now wanted that clause out. Duggan said that 29 Flynn credibly testified that the only authority he had at the July 24 negotiating session was to finish the discussion and to obtain knowledge. 755 Professional Eye Care's wage proposal was less than the one that it had proposed on two previous occasions. Flynn replied that the Union would have to talk to David Vainio about wages. Duggan referred to a number of other proposals that Professional Eye Care had at one time agreed to and now wanted deleted, and Flynn re- plied each time that he could not do anything about it because David Vainio wanted it out. There was talk about the jurisdiction clause originally requested by the Union. That clause was not geared to the work of labo- ratory employees. Duggan said that he recognized that some of the Union's proposals were boilerplate and did not apply to an optical lab so that before the next meet- ing he would draft another document that better de- scribed the work of people the Union was bargaining for. He sent a full contract proposal to Professional Eye Care on August 13, 1986.30 The next negotiating session was scheduled to take place at 9 a.m. on September 19, 1986. In arranging for the meeting, the Union had requested that Professional Eye Care furnish a written counterproposal in advance. David Vainio arrived for the meeting half an hour late. At that time he and his brother Kevin met with Duggan, Taylor, and Matt Grigsby, one of Professional Eye Care's employees. David Vainio said that there would be no negotiations as long as Grigsby was in the room. Duggan replied that it was the Union's prerogative to decide who would be on the negotiating committee. David Vainio then said that there would be no agree- ment unless there was some method for him to recover losses that employees were responsible for. Duggan said that it was not appropriate to talk about employee defi- ciencies at that time because they were there to negotiate a labor agreement. Duggan brought up the subject of the Missoula lab and Kevin Vainio said that the Union al- ready had had an opportunity to negotiate on that. About 15 minutes after the negotiating session began, David Vainio and Flynn left the meeting. Shortly there- after Kevin Vainio left. He came back with Flynn and Flynn said that he was not representing Professional Eye Care and he had no authority to do so. Duggan remind- ed Flynn that at the July 24 meeting David Vainio had given the Union a written document authorizing Flynn to bargain. Flynn replied that he was only authorized to talk to the Union and that he was not able to strike any deal. At that point Duggan asked Kevin Vainio to supply a document authorizing him to bargain. Kevin Vainio obtained a statement signed by David Vainio saying that Kevin Vainio was authorized to bargain as the need arose. At that point Kevin Vainio asked Duggan to show his authority to bargain for the Union. Duggan showed him his union credential card. The meeting resumed with Kevin Vainio and Flynn representing Professional Eye Care. Duggan asked for Professional Eye Care's written proposal and Kevin so These findings are based on the credited testimony of Duggan. He appeared to have a very good memory and his demeanor was such as to indicate that full reliance could be placed on his testimony. His testimony was in part corroborated by that of Taylor and Flynn. To the extent that testimony of David and Kevin Vainio is inconsistent with that of Duggan, I credit Duggan and do not credit David and Kevin Vainio. 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Vainio gave him another copy of the "Changes to Ma- chinists Union Contract" that had been discussed in the previous meeting. There was talk about the Missoula lab and Kevin Vainio asserted that the Union had abandoned its right to negotiate. While the parties were going over Professional Eye Care's proposals, David Vainio returned to the meeting and asked how things were going . David Vainio said, "Have we reached a stalemate yet? Let's get these pick- ets going, I'm tired of fooling around." Duggan an- swered that there was a long way to go in negotiations before there was any kind of impasse. David Vainio then said that he was getting tired of all the time he was spending with this "thing." He asked why they did not call the thing "quits." David Vainio then went on to say that they would never have any agreement unless the agreement prohibited union representatives from being on the premises. David Vainio said that he did not want to see "you people" on the premises any more. He then left the meeting. After David Vainio left, Kevin Vainio discussed some of the Union's proposals. He said that Professional Eye Care did not agree to the union shop proposal. Duggan replied that Professional Eye Care had agreed to it on three other occasions. Kevin Vainio said that Profession- al Eye Care wanted to make sure that the Union was not treating any of the people with favoritism and that all of them were paying dues. Duggan replied that they could accomplish that by agreeing to a checkoff provision. Kevin Vainio said that that was not what he meant and that he wanted the right to inspect the union records. Duggan replied that the internal union records were none of his business and that they were not even a proper subject for bargaining. After further discussion concerning the Missoula lab, the parties went on to direct their attention to the man- agement-rights clause that had been proposed by the Union and that had previously been agreed to by Profes- sional Eye Care. Kevin Vainio said that he wanted to add something to the management -rights clause concern- ing employee hours. Duggan said that the Union's man- agement-rights clause had been tentatively agreed to at three or four previous meetings. Kevin Vainio replied that he wanted to change it "because it's September 19." They then spoke about hours and overtime. Duggan said that the Union's proposal accommodated a complaint that Professional Eye Care had made in previous meet- ings by allowing a 6 to 10 a.m. starting time, which he understood Flynn had wanted at the July 24 meeting. Kevin Vainio took the position that it should be a 6 a.m. to 10 p.m. starting time . When Duggan said that Profes- sional Eye Care was taking a regressive position, Kevin Vainio replied that times do change. As the meeting pro- gressed, Kevin Vainio retreated from other offers that he had previously made. The parties broke for lunch at 12:15 p.m. that day, at which time Duggan again reminded Kevin Vainio that he expected copies of the lease and sales agreements on the Butte equipment . Kevin Vainio said that he had no intention of giving either of those documents , but that he would have a proposal for the Union when he got back. They returned from lunch about 1:40 p.m. and Kevin Vainio gave Duggan a five-page handwritten document called "Labor Agreement," that was extremely difficult if not impossible to read . It was accompanied by three pages of the Union's proposal on which handwritten changes were made. Kevin Vainio said that the union-se- curity clause meant that he wanted the right to inspect internal union records to determine that the Union was not lying to him about people paying dues and how much they paid . In the management-rights clause, he spe- cifically added the right to determine hours. The meeting adjourned about 2 p.m.sl I find that Professional Eye Care did not engage in good-faith bargaining. David Vainio, the key negotiator for Professional Eye Care, was late for meetings and left them early; he went through the motions of giving au- thority to bargain to Flynn when Flynn had no real au- thority (i.e., Flynn told the Union that it would have to talk to David about wages); David Vainio played cat- and-mouse games with the Union in which his brother Kevin would agree to a union proposal and then David would veto it; many of Professional Eye Care's offers ap- peared to be whimsical rather than serious (a 6 a.m. to 10 p.m. starting time for employees in a business that ap- peared to be open from 8 a.m. to 5 p.m.); David Vainio's remarks indicated that he was not serious about negotia- tions (he was tired of fooling around and wanted to get the pickets going); David Vainio made statements about prohibiting union agents from coming on the premises; and Professional Eye Care insisted on inspecting internal union records. In addition, as found above, Professional Eye Care demonstrated its bad faith by refusing to fur- nish documents needed by the Union to intelligently bar- gain. Taken as a whole, Professional Eye Care's conduct indicates that it had no desire to reach an agreement but was taking whatever actions were necessary to thwart one. I find that Professional Eye Care did not bargain in good faith and therefore violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondents Professional Eye Care and Eye Care constitute a single employer and are jointly and severally liable for any backpay due and for otherwise remedying their unfair labor practices. 2. Eye Care violated Section 8(a)(3) and (1) of the Act by refusing to hire Matt Grigsby on and after September 15, 1986, because of his union activity. 3. Respondents, through their agent David Vainio, violated Section 8(a)(1) of the Act by assaulting John Flynn because Flynn gave testimony adverse to Re- spondents' interest at an NLRB hearing. 4. Professional Eye Care violated Section 8(a)(1), (3), and (4) of the Act by discharging Dalasera on April 10, 1987, because of Dalasera's union activity and because he gave testimony in Board and Board-related court pro- ceedings. 81 These findings are based on the credited testimony of Duggan, which was substantiated in part by Taylor and Flynn To the extent that the testimony of David and Kevin Vainio is mconsistent with that of Duggan, I do not credit Kevin and David Vainio. PROFESSIONAL EYE CARE 5. Professional Eye Care violated Section 8(a)(5) and (1) of the Act by (a) Refusing to honor the Union's request to supply it with photocopies of David Vainio's agreement to buy equipment from Professional Eye Care and with David Vainio's lease on Eye Care's Missoula premises. (b) Changing the hours of employment of employees in the Professional Eye Care laboratory bargaining unit without notifying the Union and affording it an opportu- nity to bargain about the change. (c) Failing to bargain in good faith with the Union. THE REMEDY Having found that Respondents engaged in unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Eye Care violated the Act by refus- ing to hire Matt Grigsby on and after September 15, 1986, because of his union activity, I recommend that Respondents be ordered to offer him immediate employ- ment at the Eye Care laboratory and to make him whole for any loss of earnings resulting from the refusal to hire him by payment to him of a sum of money equal to the amount he normally would have earned as wages and benefits from September 15, 1986, which was the date he would have been hired absent the unlawful refusal to hire him, to the date on which an offer of employment is made, less net earnings during that period. The amount of backpay will be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).32 Having found that Professional Eye Care discharged Leonard Dalasera in violation of Section 8(a)(1), (3), and (4) of the Act, I recommend that Respondents be or- dered to unconditionally offer him reinstatement at the Professional Eye Care laboratory, if they have not al- ready done so, and to make him whole for any loss of earnings resulting from his discharge by payment to him of a sum of money equal to the amount he normally would have earned as wages and other benefits from April 10, 1987, which was the date of his discharge, to May 26, 1987, when he returned to work. The amount of backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in New Horizons for the Retarded, supra.33 Having found that Professional Eye Care violated Sec- tion 8(a)(5) and (1) of the Act by refusing to honor the Union's request to supply certain photocopies, I recom- mend that Respondents be ordered to furnish the Union with photocopies of David Vainio's agreement to buy equipment from Professional Eye Care and with David Vainio's lease on the Eye Care premises. Having found that Professional Eye Care violated Sec- tion 8(a)(5) and (1) of the Act by changing the hours of employment of employees in the Professional Eye Care laboratory bargaining unit without notifying the Union 32 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 88 See fn. 32. 757 and affording it an opportunity to bargain about the change, I recommend that Respondents be ordered to make the employees in that bargaining unit whole for any loss of earnings resulting from their reduction in hours by payment to each of them of a sum of money equal to the amount he or she normally would have earned as wages and other benefits if they had worked full 8-hour days between June 16, 1986, when the hours of work were first reduced, until September 6, 1986, when the employees were once again put on an 8-hour day, with interest thereon to be computed in the manner prescribed in New Horizons for the Retarded, supra. Having found that Professional Eye Care violated Sec- tion 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union, I recommend that Respond- ents be ordered to bargain in good faith with the Union as the exclusive representative of their employees in the following bargaining unit: All laboratory employees employed by David Vainio d/b/a Professional Eye Care at the facility located at 225 South Idaho, Butte, Montana; but ex- cluding all office clerical employees, guards and su- pervisors as defined in the Act. It is further recommended that Respondents be or- dered to preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment. records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay. It is further recommended that Respondents be or- dered to expunge from their files any reference to the failure to hire Grigsby or the discharge of Dalasera and to notify them in writing that that has been done and that evidence of those unlawful actions will not be used as a basis for future personnel action against them. As Respondents' acts demonstrated a tendency to behave in total disregard of the rights of their employees, I recommend a broad 8(a)(1) remedy to enjoin any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979); Goren Printing Co., 285 NLRB 38 (1987). On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed34 ORDER The Respondents, David Vainio, H. Marie Vainio, Kevin Vainio and Leonard Vainio, d/b/a Professional Eye Care, and Eye Care, Butte and Missoula, Montana, their officers, agents, successors, and assigns, shall, joint- ly and severally 1. Cease and desist from (a) Refusing to hire any applicant for employment be- cause of that applicant's union activity. 34 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Assaulting any person because that person gave testimony adverse to Respondents' interest at an NLRB hearing. (c) Discharging any employee because of that employ- ee's union activity or because that employee gave testi- mony in Board or Board-related court proceedings. (d) Failing to bargain in good faith with Local Lodge 88, International Association of Machinists and Aero- space Workers, AFL-CIO in the following bargaining unit: All laboratory employees employed by David Vainio d/b/a Professional Eye Care at the facility located at 225 South Idaho, Butte, Montana; but ex- cluding all office clerical employees, guards and su- pervisors as defined in the Act. (e) Refusing to honor the request of that Union to supply it with photocopies of David Vainio's agreement to buy equipment from Professional Eye Care and with David Vainio's lease on Eye Care's Missoula premises. (f) Changing the hours of employment of employees in the Professional Eye Care laboratory bargaining unit without notifying the Union and affording it an opportu- nity to bargain about the change. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Matt Grigsby immediate employment at the Eye Care laboratory and make him whole with interest for lost earnings in the manner set forth in the remedy section of this decision. (b) Offer Leonard Dalasera unconditional reinstate- ment at the Professional Eye Care laboratory, if that has not already been done, and make him whole with inter- est for lost earnings in the manner set forth in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay. (d) Expunge from their files any reference to the fail- ure to hire Grigsby and the discharge of Dalasera and notify them in writing that that has been done and that evidence of those unlawful actions will not be used as a basis for future personnel action against them. (e) Bargain in good faith with Local Lodge 88, Inter- national Association of Machinists and Aerospace Work- ers, AFL-CIO in the following bargaining unit: All laboratory employees employed by David Vainio d/b/a Professional Eye Care at the facility located at 225 South Idaho, Butte, Montana; but ex- cluding all office clerical employees, guards and su- pervisors as defined in the Act. (f) Honor the request of that Union to supply it with photocopies of David Vainio's agreement to buy equip- ment from Professional Eye Care and with David Vain- io's lease on Eye Care's Missoula premises. (g) Make the employees in the above-described bar- gaining unit who were employed between June 16 and September 6, 1986, whole for their reduction in hours, with interest, as is set forth in the remedy section of this decision. (h) Post at their Butte and Missoula, Montana facilities copies of the attached notice marked "Appendix."35 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Re- spondents' authorized representative, shall be posted by the Respondents immediately on receipt 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 Respond- ents to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondents have taken to comply. IT IS FURTHER RECOMMENDED that those allegations of the complaint as to which no violations have been found are dismissed. 85 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to hire any applicant for employ- ment because of that applicant's union activity. WE WILL NOT assault any person because that person gave testimony adverse to our interests at an NLRB hearing. WE WILL NOT discharge any employee because of that employee's union activity or because that employee gave testimony in Board or Board-related court proceedings. WE WILL NOT fail to bargain in good faith with Local Lodge 88, International Association of Machinists and Aerospace Workers, AFL-CIO in the following bargain- ing unit: All laboratory employees employed by David Vainio d/b/a Professional Eye Care at the facility located at 225 South Idaho, Butte , Montana; but ex- cluding all office clerical employees, guards and su- pervisors as defined in the Act. WE WILL NOT refuse to honor the request of that Union to supply it with photocopies of David Vainio's agreement to buy equipment from Professional Eye Care and with David Vainio's lease on Eye Care' s Missoula premises. WE WILL NOT change the hours of employment of em- ployees in the Professional Eye Care laboratory bargain- PROFESSIONAL EYE CARE 759 ing unit without notifying the Union and affording it an opportunity to bargain about the change. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer Matt Grigsby immediate employment at the Eye Care laboratory with backpay plus interest. WE WILL offer Leonard Dalasera unconditional rein- statement at the Professional Eye Care laboratory with backpay plus interest. WE WILL expunge from our files any reference to the failure to hire Grigsby and the discharge of Dalasera and WE WILL notify them in writing that that has been done and that evidence of those unlawful actions will not be used as a basis for future personnel action against them. WE WILL bargain in good faith with Local Lodge 88, International Association of Machinists and Aerospace Workers, AFL-CIO in the bargaining unit set forth above. WE WILL honor the request of that Union to supply it with photocopies of David Vainio's agreement to buy equipment from Professional Eye Care and with David Vainio's lease on Eye Care's Missoula premises. WE WILL give backpay plus interest for their reduc- tion in hours to employees in the Professional Eye Care laboratory bargaining union who are employed between June 16 and September 6, 1986. DAVID VAINIO, H. MARIE VAINIO, KEVIN VAINIO AND LEONARD VAINIO, D/B/A PROFESSIONAL EYE CARE EYE CARE