IFG Stockton Management LP

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 357 NLRB No. 118 1398 IFG-Stockton Management, L.P. and International Union of Operating Engineers, Stationary Engi- neers Local 39, AFL–CIO. Case 32–CA–024926 November 30, 2011 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES On August 19, 2010, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent and the Acting General Counsel filed exceptions, sup- porting briefs, and answering briefs. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions, as modified,1 and to adopt the rec- ommended Order as modified and set forth in full below. Background and Facts The Respondent managed and maintained the Stockton Arena (the Arena) in Stockton, California. International Union of Operating Engineers, Stationary Engineers Lo- cal 39, AFL–CIO (the Union) represented a bargaining unit of engineers employed by the Respondent at the Arena. There were two unit employees at the Arena at the time of the events. Those employees operated, main- tained, and repaired the Arena’s mechanical systems. The Respondent and the Union were parties to a col- lective-bargaining agreement that was effective from January 1, 2007, to December 31, 2009. By mutual agreement, the parties extended the agreement to January 31, 2010.2 On January 22, the Respondent and the Union con- ducted their one (and only) bargaining session to negoti- ate a successor agreement. The Union presented 16 pro- posals to the Respondent at this meeting. Although the parties discussed the Union’s proposals, the Respondent told the Union that it had no response to them and no counterproposals of its own. The Respondent further stated that it did not see a need to move forward with negotiations and did not want a contract, because the 1 The judge found that the Respondent violated the Act by subcon- tracting all bargaining unit work subsequent to its withdrawal of recog- nition from the Union and unilateral elimination of the bargaining unit as discussed below. The Respondent correctly points out that the com- plaint does not allege a subcontracting violation or seek a remedy for such a violation. We also observe that our Order will require the Re- spondent to restore the unit positions it eliminated and offer the affect- ed employees reinstatement. In these circumstances, we find it unnec- essary to pass on whether the Respondent independently violated the Act by its subcontracting. 2 All dates here are in 2010, unless otherwise noted. Union had not provided properly trained employees.3 At the hearing in this case, the Respondent’s general man- ager, Charles Kemp, explained that walking away from the contract meant that the Respondent intended to end its bargaining relationship with the Union as of January 31. Kemp further testified that the Respondent’s plan was to then terminate the two bargaining unit employees and subcontract the unit work. On January 22, the Respondent placed unit employee Michael Valverde on administrative leave. By letter the same day, the Respondent’s human resources manager, Christina Torres-Peters, advised Valverde that the Re- spondent had decided not to renew or extend its contract with the Union and instructed him “to refrain from mak- ing contact with any other IFG employees besides me.” On February 1, the Respondent informed unit employ- ees Valverde and Brion Leri that their employment was terminated. Human Resources Manager Torres-Peters later testified that the discharge of the unit employees “was part of the Employer’s plan to end this bargaining relationship with the Union.” By letter dated February 3, the Union demanded that the Respondent return to the bargaining table and negoti- ate a successor agreement. The Respondent did not re- spond to that letter, and no further bargaining occurred. Discussion 1. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recog- nition of the Union, by refusing to bargain, by unilateral- ly eliminating all bargaining unit positions, and by telling the Union that it would not bargain. As the judge found, the Respondent had a continuing obligation to recognize and bargain with the Union for a successor agreement.4 Instead of complying with this obligation, however, the Respondent informed the Union that it did not intend to move forward with negotiations and did not want a suc- cessor agreement. Further, General Manager Kemp ad- mitted that the Respondent intended to end its bargaining relationship at the conclusion of the predecessor contract on January 31. And, in fact, after the single bargaining session on January 22, the Respondent did not respond to the Union’s demand to resume bargaining. In these cir- cumstances, we find that the Respondent’s refusal to 3 The 2007–2009 bargaining agreement stated: “when new or addi- tional engineers at the Stockton Arena are needed, the Employer shall notify the Union of the number and qualifications of additional engi- neers at the Stockton Arena which are needed so that the Union may have a reasonable opportunity to refer applicants.” 4 The Respondent did not file exceptions to the judge’s finding that it failed to establish that the Union had lost majority support. Further, no exceptions were filed to the judge’s finding that the Union’s alleged referral of inadequately trained employees did not constitute an ex- traordinary circumstance justifying the Respondent’s refusal to bargain. IFG-STOCKTON MANAGEMENT, L.P. 1399 bargain, unilateral elimination of all bargaining unit posi- tions, and withdrawal of recognition violated Section 8(a)(5) and (1) of the Act. See Finch, Pruyn & Co., 349 NLRB 270, 277 (2007), enfd. mem. 296 Fed. Appx. 83 (D.C. Cir. 2008) (unilateral elimination of unit jobs vio- lates Sec. 8(a)(5)); Levitz Furniture Co. of the Pacific, 333 NLRB 717, 725 (2001) (absent actual loss of majori- ty support, withdrawal of recognition violates Sec. 8(a)(5)).5 We also find that the Respondent violated Sec- tion 8(a)(5) and (1) when it advised the Union on January 22 that it was terminating the agreement and was refus- ing to negotiate a successor agreement.6 2. The complaint also alleges, and we find, that the Re- spondent’s elimination of all bargaining unit positions violated Section 8(a)(3) and (1). As described, Human Resources Manager Torres-Peters admitted that the Re- spondent’s elimination of the only two unit employees was part of its plan to oust the Union. Plainly, this con- duct violated Section 8(a)(3) and (1). See KFMB Sta- tions, 349 NLRB 373, 373, 385–386 (2007), review de- nied sub nom. mem. AFTRA, San Diego Local v. NLRB, 301 Fed.Appx. 730 (9th Cir. 2008).7 3. We also find merit in the complaint allegation that the Respondent violated Section 8(a)(3), (5), and (1) on January 22 when it placed unit employee Valverde on administrative leave. We agree with the judge that the Acting General Counsel established that Valverde’s strong support for the Union was a motivating factor in the Respondent’s decision. Further, as the judge found, the Respondent failed to prove that it would have taken the same action against Valverde absent his union activi- ty. There is insufficient evidence to support the Re- spondent’s contention that Valverde had a “volatile” temperament and that it was concerned that he might “flip the wrong switch” at the Arena if he stayed on the job until February 1. Indeed, General Manager Kemp could not identify any instance where Valverde “had 5 We find no merit to the Respondent’s argument that the parties reached a good-faith bargaining impasse on January 22, thus permitting its unilateral action. As shown, the Respondent did not meaningfully negotiate with the Union regarding the latter’s contract’s proposals, nor did it respond to the Union’s request to resume bargaining. In these circumstances, the record precludes a finding of a good-faith impasse. In any event, impasse would not have permitted the Respondent to withdraw recognition of the Union. See Central Metallic Casket Co., 91 NLRB 572, 574 (1950). 6 Member Hayes finds it unnecessary to pass on this allegation inas- much as he believes that such a finding would be cumulative, and would not materially affect the remedy. 7 Having found that the Respondent’s elimination of all bargaining unit positions violated Sec. 8(a)(5), Member Hayes finds it unnecessary to pass on whether the same action violated Sec. 8(a)(3) because the additional finding would be cumulative and would not materially affect the remedy. previously done anything like that.” Thus, we are left with the Respondent’s bare assertions of concern, which we find insufficient to establish its affirmative defense. See McKesson Drug Co., 337 NLRB 935, 937, 937 fn. 7 (2002) (employer must show that it acted on a reasona- ble, good-faith belief). As Valverde’s placement on leave was intertwined with the Respondent’s unlawful withdrawal of recognition and was implemented unilat- erally, we find that this conduct also violated Section 8(a)(5) and (1). See Mimbres Memorial Hospital & Nursing Home, 342 NLRB 398, 402 (2004), enfd. 483 F.2d 683 (10th Cir. 2007).8 4. Last, the complaint alleges that the Respondent in- dependently violated Section 8(a)(1) by directing an em- ployee not to discuss collective bargaining and employ- ment matters with other employees. As described, Hu- man Resources Manager Torres-Peters’s January 22 let- ter to Valverde announced the Respondent’s decision not to renew or extend its contract with the Union and in- structed Valverde “to refrain from making contact with any other IFG employees besides me.” This statement could reasonably be understood to encompass discus- sions with other employees about working conditions, collective bargaining, and, in particular, the Respond- ent’s withdrawal of recognition. Thus, we find that the Respondent restrained and coerced Valverde in the exer- cise of his Section 7 rights in violation of Section 8(a)(1). See SKD Jonesville Division L.P., 340 NLRB 101, 102– 103 (2003) (employer unlawfully warned employee that all work-related matters were to be discussed only with a supervisor). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by eliminating all bargaining unit positions and work and by placing Michael Valverde on administrative leave. 4. The Respondent violated Section 8(a)(5) and (1) of the Act by: withdrawing recognition of the Union; telling the Union that it would not bargain; refusing to bargain for a successor bargaining agreement; eliminating all 8 The parties dispute whether Valverde’s leave was paid or unpaid. We leave the resolution of that question to the compliance phase of this proceeding. Member Hayes finds it unnecessary to pass on whether the Re- spondent’s placement of Valverde on administrative leave violated Sec. 8(a)(5), as the 8(a)(3) and (1) finding and remedy, in which he joins, fully remedies the Respondent’s unlawful conduct. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1400 bargaining unit positions and work; and placing Michael Valverde on administrative leave. 5. The Respondent violated Section 8(a)(1) of the Act by telling an employee not to discuss with other employ- ees matters that reasonably could encompass collective bargaining and employment-related concerns. 6. The Respondent’s actions above are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully elimi- nated all of the bargaining unit positions and work, we shall order the Respondent to reestablish and restore those bargaining unit positions and work as they existed prior to February 1, 2010, in order to return to the status quo before the Respondent’s commission of unfair labor practices. Carter & Sons Freightways, 325 NLRB 433, 440–441 (1998) (restoration remedy is appropriate to return to status quo ante when employer has curtailed operations and discharged employees for discriminatory reasons); see also Joy Recovery Technology Corp., 320 NLRB 356, 356 fn. 4, 370 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998) (restoration is appropriate to remedy 8(a)(3) and (5) violations).9 We shall also order the Respondent to offer full rein- statement to Michael Valverde and Brion Leri to the former positions that they held prior to their unlawful terminations, without prejudice to their seniority or any other rights and privileges previously enjoyed, and to make them whole for any loss of earnings and other ben- efits suffered as a result of the Respondent’s unlawful actions against them. Backpay shall be computed in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds sub nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). The Respondent shall also be required to remove from its files any and all refer- ences to the unlawful discharges of Valverde and Leri and to notify them in writing that this has been done and 9 Member Hayes does not believe that a restoration remedy is appro- priate here where the unfair labor practices are adequately remedied by ordering the Respondent to offer reinstatement and make-whole reme- dies to Valverde and Leri. that the unlawful actions will not be used against them in any way.10 Further, for the reasons set forth in Caterair Interna- tional, 322 NLRB 64 (1996), we find that an affirmative bargaining order is warranted in this case as a remedy for the Respondent’s unlawful withdrawal of recognition. We adhere to the view that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective- bargaining representative of an appropriate unit of em- ployees.” Id. at 68. In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order.11 See, e.g., Vincent In- dustrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra, the court summarized its requirement that an affirmative bargaining order “must be justified by a reasoned analy- sis that includes an explicit balancing of three considera- tions: (1) the employees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employ- ees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Id. at 738. Although we respect- fully disagree with the court’s requirement for the rea- sons set forth in Caterair, supra, we have examined the particular facts of this case, as the court requires, and find that a balancing of the three factors warrants an af- firmative bargaining order. (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining—and ulti- mately their jobs—by the Respondent’s withdrawal of recognition, refusal to continue bargaining with the Un- ion, and elimination of the unit altogether. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continu- 10 The Acting General Counsel also seeks rescission of any subcon- tracts of bargaining unit work and an affirmative order directing the Respondent to hire new bargaining unit employees if either Valverde or Leri refuse the Respondent’s offers of reinstatement. As noted, we are not finding a subcontracting violation, and thus we shall not order the rescission of any subcontracts. The parties may address those contracts in implementing the restoration remedy that will return bargaining unit positions and work to the unit. We will not speculatively order the Respondent to hire new employees contingent on current employees’ possible responses to future reinstatement offers; we note, however, that the status quo ante included the existence of bargaining unit work. 11 Member Hayes agrees with the D.C. Circuit that a case-by-case analysis is required to determine if an affirmative bargaining order is appropriate. He finds that imposing a bargaining order here is appropri- ate under that analysis. IFG-STOCKTON MANAGEMENT, L.P. 1401 ing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the dura- tion of the order is no longer than is reasonably necessary to remedy the ill effects of the violations. To the extent such opposition may exist, moreover, it may be at least in part the product of the Respondent’s unfair labor practic- es. (2) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. It removes the Re- spondent’s incentive to delay bargaining in the hope of discouraging support for the Union. On this point, we find it particularly significant that the Respondent admit- ted its desire to rid itself of the Union and took planned action to achieve that objective. An affirmative bargain- ing order also ensures that the Union will not be pres- sured by the Respondent’s withdrawal of recognition to achieve immediate results at the bargaining table follow- ing the Board’s resolution of its unfair labor practice charges and issuance of a cease-and-desist order. (3) Finally, a cease-and-desist order, alone, would be inadequate to remedy the Respondent’s refusal to bargain with the Union in these circumstances because it would permit a decertification petition to be filed before the Respondent has afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a successor collective-bargaining agreement. Such a result would be particularly unfair in circumstances such as those here, where the Respondent undermined the Union’s standing among the employees by making unilateral changes, declaring its intent not to bargain with the Union, and unlawfully eliminating the unit in its entirety. These unfair labor practices are likely to have a continuing negative effect on employees’ sup- port for the Union that cannot be adequately remedied by a cease-and-desist order alone. For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case. ORDER The Respondent, IFG-Stockton Management, L.P., Stockton, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Eliminating all bargaining unit positions and unit work without bargaining with the Union or because of employees’ union affiliation and support. (b) Placing employees on administrative leave without bargaining with the Union or because of employees’ un- ion affiliation and support. (c) Withdrawing recognition from the Union, Interna- tional Union of Operating Engineers, Stationary Engi- neers Local 39, AFL–CIO, as the exclusive bargaining representative in the bargaining unit described below. (d) Telling the Union that it would not bargain for a collective-bargaining agreement and refusing to bargain. (e) Telling employees not to discuss with other em- ployees subjects that pertain to collective bargaining and employment matters. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Upon request, meet and bargain with the Union as the exclusive collective-bargaining representative of its employees in the appropriate bargaining unit described below with respect to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All engineers employed by the Employer at the Stock- ton Arena as described in and covered by “Section 1 . . . Union Recognition” of the January 1, 2007 through December 31, 2009 collective bargaining agreement between the Respondent and the Union, excluding all other employees, guards, and supervisors as defined in the Act. (b) Reestablish the bargaining unit positions and re- store to the Respondent’s engineers at the Stockton Are- na the work they performed prior to the Respondent’s unlawful withdrawal of recognition. (c) Within 14 days from the date of this Order, offer Michael Valverde and Brion Leri full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. (d) Make Michael Valverde and Brion Leri whole for any loss of earnings and other benefits due to them under the terms of this Order, with interest, as described in the remedy section of this decision. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges of Michael Valverde and Brion Leri, and to the unlawful placement of Valverde on administrative leave and, with- in 3 days thereafter, notify them in writing that this has been done and that the discipline will not be used against them in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402 good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its Stockton, California facility, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means.13 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since January 22, 2010. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 13 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT eliminate all bargaining unit positions and unit work without bargaining with the Union or be- cause of employees’ union affiliation and support. WE WILL NOT place employees on administrative leave without bargaining with the Union or because of em- ployees’ union affiliation and support WE WILL NOT withdraw recognition from the Union, International Union of Operating Engineers, Stationary Engineers Local 39, AFL–CIO, as the exclusive bargain- ing representative in the bargaining unit described below. WE WILL NOT tell the Union that we will not bargain for a collective-bargaining agreement and refuse to bar- gain WE WILL NOT tell employees not to discuss with other employees subjects that pertain to collective bargaining and employment matters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above. WE WILL, upon request, meet and bargain with the Un- ion as the exclusive collective-bargaining representative of our employees in the appropriate bargaining unit de- scribed below with respect to rates of pay, hours of em- ployment, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is: All engineers employed by the Employer at the Stock- ton Arena as described in and covered by “Section 1. . . Union Recognition” of the January 1, 2007 through December 31, 2009 collective bargaining agreement between the Respondent and the Union, excluding all other employees, guards, and supervisors as defined in the Act. WE WILL reestablish the bargaining unit positions and restore to the Respondent’s engineers at the Stockton Arena the work they performed before our unlawful withdrawal of recognition. WE WILL, within 14 days from the date of the Board’s Order, offer Michael Valverde and Brion Leri full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- IFG-STOCKTON MANAGEMENT, L.P. 1403 udice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Michael Valverde and Brion Leri whole for any loss of earnings and other benefits due to them as a result of our unlawful conduct, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Michael Valverde and Brion Leri, and to the unlawful placement of Valverde on administrative leave, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the discharges and administrative leave will not be used against them in any way. IFG-STOCKTON MANAGEMENT, L.P. Gary M. Connaughton, Esq., for the General Counsel. Scott Malm, Esq. (Cassel, Malm, Fagundes), of Stockton, Cali- fornia, for the Respondent. Stuart Weinberg, Esq. (Weinberg, Roger & Rosenfeld), of Ala- meda, California, for the Union. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Oakland, California, on June 21, 2010. On Janu- ary 28, 2010, the International Union of Operating Engineers, Stationary Engineers Local 39, AFL–CIO (the Union) filed the charge in Case 32–CA–024926 alleging that IFG-Stockton Management LP1 (Respondent) committed certain violations of Section 8(a)(5), (3), and (1) of the National Labor Relations Act (the Act). On March 31, 2010, the Union filed the first amended charge. On March 31, 2010, the Regional Director for Region 32 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing against Re- spondent, alleging that Respondent violated Section 8(a)(5), (3), and (1) of the Act. Respondent filed a timely answer to the complaint, denying all wrongdoing. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my observation of the demeanor of the witnesses,2 and having con- sidered the posthearing briefs of the parties, I make the follow- ing 1 The name of the Respondent appears as corrected at the hearing. 2 The credibility resolutions here have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit- nesses testifying in contradiction to the findings, their testimony has been discredited, either as having been in conflict with credited docu- mentary or testimonial evidence or because it was in and of itself in- credible and unworthy of belief. FINDINGS OF FACT I. JURISDICTION The Respondent is a limited partnership, with an office and principal place of business in Stockton, California, where it has been engaged in the business of managing and maintaining buildings and facilities. In the 12 months prior to issuance of the complaint, Respondent, in conducting its business opera- tions, derived gross revenues in excess of $50,000 from the city of Stockton, California. Further, Respondent purchased and received goods and services valued in excess of $50,000 direct- ly from points outside the State of California. Accordingly, the Respondent admits and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Respondent is engaged in the management and maintenance of commercial buildings and facilities, including the Stockton Arena in Stockton, California. The Union represented a bar- gaining unit of Respondent’s employees at the Stockton Arena The collective-bargaining agreement between the parties was effective by its terms from January 1, 2007, through December 31, 2009. Although the size of the bargaining unit varied dur- ing the term of the bargaining agreement, there were two bar- gaining unit employees for an extended period of time prior to January 31, 2010. In early October 2009, the Union sent Respondent a letter reopening the bargaining agreement for purposes of bargaining for a successor bargaining agreement. In that same month, Charles Kemp, Respondent’s general manager, decided to re- place Respondent’s bargaining unit employees with outside contractors because of issues he had with the work competence of employees supplied by the Union. In late October, Respond- ent’s counsel sent the Union a letter notifying the Union that Respondent intended to “terminate” the bargaining agreement upon its expiration. Counsel’s letter noted that Respondent’s “intent to terminate the contract is a subject of bargaining and offers to meet and confer with [the Union] for the purpose of negotiating a new or modified contract and that contract is to be observed during the bargaining up to the last day of the con- tract.” The Union, by Steven Thomas, business representative, responded that the Union intended to bargain a successor agreement. Because the parties were unable to meet prior to December 31, 2009, the parties agreed to extend the bargaining agreement until midnight January 31, 2010. On January 22, 2010, the parties met in the presence of a Federal Mediator, for their first and only bargaining session for a successor bargaining agreement. The Union stated that it was there to bargain for a successor agreement. Respondent stated that it did not want a contract; that the bargaining agreement was not working for Respondent because the Union had not provided Respondent with properly trained employees. Thom- as answered Respondent’s claims that the Union had failed to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1404 provide properly trained employees by stating that the Union only had the right to refer applicants and, that it was Respond- ent’s responsibility to make sure it hired qualified employees. Thomas distributed copies of the Union’s 16 bargaining pro- posals. The parties discussed the Union’s proposals. Respond- ent stated that it had no counterproposals because it did not see a need to move forward with negotiations. After Respondent insisted that it did not want a contract, the mediator called for a break in the session so that he could meet with Respondent separately. In its meeting with the mediator, Respondent again stated its intent to walk away from the contract. The mediator stated that Respondent could: (1) accept the Union’s proposals; (2) attempt to change job descriptions and titles (the mediator suggested the Union would never agree to this); or (3) proceed without a contract and await the Union’s reaction. Respondent stated that it would walk away from the contract and the media- tor agreed to inform the Union. After meeting with the mediator, Respondent’s representa- tives discussed how to implement its decision to terminate its relationship with the Union. Respondent decided that it would notify its two unit employees that they would be let go because Respondent no longer had an agreement with the Union. Re- spondent decided to place employee Michael Valverde on paid administrative leave. Valverde was put on administrative leave because Respondent feared that Valverde might get upset once he learned that Respondent was walking away from the Union. Respondent admitted that it knew Valverde was a strong union supporter. Valverde was notified by telephone and letter that he was placed on administrative leave until January 31, 2010, and that Respondent had “opted” not to renew the contract which ex- pired on January 31, 2010. In addition, Valverde was told, “You are asked to refrain from making any contact with any other IFG employees.” On February 1, 2010, Respondent terminated its two bar- gaining unit employees, Valverde and Brion Leri. Respondent subcontracted out the bargaining unit work and later rehired Leri to supervise the employees of the subcontractors. Re- spondent did not give notice to or bargain with the Union over these terminations. On February 3, Thomas sent Respondent a letter demanding that Respondent return to the bargaining table. Respondent did not respond and no further bargaining took place. Respondent presented evidence from Brion Leri. After being terminated on February 1, Leri was rehired by Respondent to supervise the employees of subcontractors used by Respondent. Leri testified that he expressed dissatisfaction with the employ- ees on several occasions. After being informed that Respond- ent was no longer affiliated with the Union, Leri expressed concern over the Union and his job status. However, Leri did not testify that he ever stated that he did not want the Union to represent him. III. ANALYSIS AND CONCLUSIONS A. The Respondent was Obligated to Bargain The general rule is that when parties are engaged in negotia- tions for a new agreement, an employer’s obligation to refrain from unilateral changes encompasses a duty to refrain from implementation unless and until an overall impasse has been reached on bargaining for the agreement as a whole. Pleas- antview Nursing Home, 335 NLRB 961 (2001); citing Bottom Line Enterprises, 302 NLRB 373 (1991). In Bottom Line En- terprise, the Board recognized only two exceptions to that gen- eral rule: when a union engages in bargaining delay tactics and “when economic exigencies compel prompt action, 335 NLRB at 374. The Board has limited the economic considerations which would trigger the Bottom Line exception to “extraordinary events which are an unforeseen occurrence, having a major economic effect [requiring] the company to take immediate action.” Hankins Lumber Co., 316 NLRB 837, 838 (1995). In RBE Electronics, 320 NLRB 80, 81 (1995), the Board made it clear that “[a]bsent a dire financial emergency, economic events such as . . . operation at a competitive disadvantage . . . do not justify unilateral action.” citing Triple A Fire Protection, 315 NLRB 409, 414 (1994). However, in RBE Electronics, the Board also found that there may be other economic exigencies that, although not suf- ficiently compelling to excuse bargaining altogether, should be encompassed within the exigency exception. In those cases, the employer will “satisfy its statutory obligation by providing [the union] with adequate notice and an opportunity to bargain over the changes it proposes to respond to the exigency and by bar- gaining to impasse over the particular matter. In such time sensitive circumstances, however, bargaining, to be in good faith, need not be protracted.” Pleasantview Nursing Home, supra, citing RBE Electronics and Naperville Ready Mix, Inc., 329 NLRB 174, 182–184 (1999). In Pleasantview Nursing Home the Board reiterated that the exception will be limited only to those exigencies in which time is of the essence and which demand prompt action. Thus, the Board will require an employer to show a need that the particu- lar action proposed be implemented promptly. Consistent with the requirement that an employer prove that its proposed changes were “compelled,” the employer must also show that the exigency was caused by external events, was beyond its control, or was not reasonably foreseeable. Id. Applying these principles here, it is clear that the Respond- ent’s claim of inadequately trained employees is not the type of “extraordinary event” that justifies unilateral action without bargaining. Although Respondent could decide to subcontract the unit work, it first had to offer the Union the opportunity to bargain over the decision and the effects of the decision. There was no reason why Respondent could not give the Un- ion notice and an opportunity to bargain over its decision to subcontract the work and the effects of such a decision. In the instant case the parties met on only one occasion. Re- spondent indicated its desire to end the relationship. It offered no proposals or counter proposals. There was no discussion concerning a plan for subcontracting or the effects of Respond- ent’s decision to subcontract the work. Respondent argues that the Union did not have majority sup- port. It is axiomatic that an employer’s obligation to bargain with the 9(a) representative of its bargaining unit employees IFG-STOCKTON MANAGEMENT, L.P. 1405 continues after the expiration of a collective-bargaining agree- ment unless or until it is shown that the Union has lost majority support. Levitz Furniture Co., 333 NLRB 717 (2001). Absent a showing that the union lost majority support, an employer violates Section 8(a)(5) of the Act if it refuses to recognize and bargain in good faith with an incumbent union once a collec- tive-bargaining agreement expires. The Board has held that the burden is on the employer to prove by a preponderance of objective evidence that the union had in fact lost majority support at the time the employer with- drew recognition. Levitz, supra at 725. The evidence presented by Leri does not establish that the Union had lost majority sup- port at the time of Respondent’s refusal to bargain. Further, Respondent argues that there is a bargaining unit of only one employee. However, the evidence establishes that the appointment of Leri to supervise subcontractors was part-and- parcel of the decision to subcontract the bargaining unit work. Therefore, to allow this defense would be to permit Respondent to profit from its own wrongdoing. As stated earlier, Respond- ent could subcontract the work, but it first was obligated to bargain with the Union over the decision and the effects of that decision. As I have found that on January 22, 2020, no lawful impasse existed, Respondent’s implementation of its decision to subcon- tract the bargaining unit work, without the agreement of the Union, was violative of Section 8(a)(1) and (5) of the Act. B. Paid Leave for Valverde In cases involving dual motivation, the Board employs the test set forth in Wright Line, 251 NLRB 1083, 1089 (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, 399–403 (1983). Initially, the General Counsel must establish by a preponderance of the credible evi- dence that antiunion sentiment was a “motivating factor” for the discipline or discharge. This means that General Counsel must prove that the employee was engaged in protected activi- ty, that the employer knew the employee was engaged in pro- tected activity, and that the protected activity was a motivating reason for the employer’s action. Wright Line, supra, 251 NLRB at 1090. Unlawful motivation may be found based upon direct evidence of employer animus toward the protected activi- ty. Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004). Alternatively, proof of discriminatory motivation may be based on circumstantial evidence, as described in Robert Orr/Sysco Food Services, supra: To support an inference of unlawful motivation, the Board looks to such factors as inconsistencies between the proffered reasons for the discipline and other actions of the employer, disparate treatment of certain employees compared to other employees with similar work records or offenses, deviations from past practice, and proximity in time of the discipline to the union activity. Embassy Vacation Resorts, 340 NLRB [846, 848] (2003). If the General Counsel has satisfied the initial burden, the burden of persuasion shifts to Respondent to show by a pre- ponderance of the credible evidence that it would have taken the same action even in the absence of the employee’s protect- ed activity. If Respondent advances reasons which are found to be false, an inference that the true motive is an unlawful one may be warranted. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). How- ever, Respondent’s defense does not fail simply because not all the evidence supports its defense or because some evidence tends to refute it. Merrilat Industries, 307 NLRB 1301, 1303 (1992). Ultimately, the General Counsel retains the burden of proving discrimination. Wright Line, supra, 251 NLRB at 1088 fn. 11. In the instant case, Respondent placed Valverde on paid ad- ministrative leave due to its belief that Valverde would be upset by Respondent’s withdrawal of recognition of the Union. Re- spondent admitted that Valverde was a strong union supporter. Further, Respondent requested Valverde not to make any con- tact with any employees of Respondent. Under the circum- stances, I find that General Counsel has established that Valverde was placed on paid leave because he was a strong union supporter and because Respondent did not want him to have contact with other employees. I find Respondent’s evidence that Valverde was “volatile at times,” without objective support, insufficient to establish that it would have taken this action in the absence of Valverde’s union support. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act in placing Valverde on paid leave. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally subcontracting bargaining unit work on February 1, 2010. 4. Respondent violated Section 8(a)(3) and (1) by placing employee Michael Valverde on administrative leave on January 22, 2010. 5. Respondent’s conduct above are unfair labor practices af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effectu- ate the purposes and policies of the Act. Respondent having unlawfully laid off employees Valverde and Leri, must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quar- terly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]