NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,509, WE CAN, INC. and BAKERY DRIVERS & BAKERY GOODS VENDING MACHINES, LOCAL 550, IBT, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

WE CAN, INC. and BAKERY DRIVERS & BAKERY GOODS VENDING MACHINES, LOCAL 550, IBT, AFL-CIO.

315 NLRB No. 24.Case Nos. 2-CA-26085 and -26095. September 30, 1994 Philip P. McLeod, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Richard De Steno and Eric Brooks, for General Counsel. Andrew W. Hays, for Respondent. Roy N. Watanabe and Rebecca Weston, New York, New York, for Charging Party.

Remedial Orders--Reinstatement--Economic Defense Pretextual.--The NLRB determined that it was necessary to order the reinstatement of employees assigned to an employer’s collection network, as well as eight of its drivers, who had been discriminatorily discharged by the employer during a union organizing campaign. The employer failed to demonstrate that it would be unduly burdensome for it to restore the network to its original size and to reinstate the drivers because its claimed defense of economic necessity was unpersuasive and pretextual. Section 10(c).

Back reference: ¶5425.0311.

Interference--Coercive Remarks--Union Organizing.--Once an employer discovered that its employees were engaging in a union organizing campaign, it committed several unfair labor practices designed to interfere with its employees’ free selection of a bargaining representative. These coercive unlawful acts included threatening its unionist employees with discharge, interrogating employees regarding their union activities, warning the employees not to become involved with the union and implying that it had discharged employees for engaging in union activities. Section 8(a)(1).

Back reference: ¶3770.0441.

Discrimination--Pretextual Nature of Reason--Discharges for Unionism.--After learning that its employees were conducting a union organizing campaign, an employer discriminated against them by committing unfair labor practices designed to discourage union support. Eight employees who supported the union were discharged and the employer’s collection network was downsized on pretextual grounds and the employer failed to prove that it would have taken the same action absent the employees’ union support. Section 8(a)(3).

Back reference: ¶4095.1745.

Refusal to Bargain--Refusal to Recognize Union--Card-Based Majority.--Although a union had secured authorization cards from a majority of bargaining unit employees, an employer violated its bargaining duty by refusing to recognize or bargain with the union as the employees’ representative. The union made a valid demand for recognition and bargaining, but the employer committed unfair labor practices in an attempt to undermine the union’s majority status. Section 8(a)(5).

Back reference: ¶3082.144.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions, briefs, motion, opposition, and reply, and has decided to affirm the judge’s rulings, [1] findings, [2] and conclusions as modified below and to adopt the recommended Order as modified.

The judge found that the Respondent violated Section 8(a)(3) and (1) by discharging eight of its employees and by reducing the size of its collection network because the employees had engaged in union activities. The judge recommended that, to remedy its unlawful conduct, the Respondent be ordered to offer to reinstate the unlawfully discharged employees and to restore the collection network to its size at the time of the discharges. We affirm the judge’s finding that the discharges were unlawful, and we adopt his recommended remedy, with qualifications.

I. THE UNFAIR LABOR PRACTICES

The Respondent is a nonprofit organization that assists the poor and homeless by providing them a ready means of redeeming returnable cans and bottles and receiving refunds. One of the Respondent’s operations is the collection network (CN). CN truckdrivers and helpers pick up bags of donated cans from clients in office buildings and apartment houses; the Respondent itself redeems the cans for the deposit. The CN does not help the poor and homeless directly. It is intended instead to generate operating profits that can defray some or all the Respondent’s administrative costs and thus make the Respondent less dependent on charitable contributions. In practice, unfortunately, the results have been disappointing. Instead of generating operating surpluses, the CN incurred operating deficits exceeding $30,000 in fiscal year 1989, $149,000 in fiscal year 1990, and $39,000 in fiscal year 1991. The CN realized a modest operating surplus of about $5000 in fiscal year 1992. However, nearly all of that surplus was generated between August and December 1991; operating deficits were incurred in all but 2 months between January and July 1992. [3]

In the summer of 1992, the Union commenced an organizing drive among the CN drivers and helpers. On September 23, [4] the Board’s Regional Office faxed a copy of the Union’s representation petition to the Respondent. By letter dated September 28, the Union demanded recognition on the basis of authorization cards signed by all employees in the petitioned-for drivers unit.

Almost immediately after it was informed of the Union’s petition, as the judge found, the Respondent began to violate the Act. Between September 23 and 29, the Respondent’s officers and supervisors unlawfully interrogated driver Gene DiMurro, threatened driver Jerry Medlin with discharge if he engaged in union activities, and discharged driver Joseph Malheiro for unlawful reasons under pretext of a legitimate ground. [5] In the process, the Respondent’s executive director, Guy Polhemus, told DiMurro and others that “I don’t need to spend money for lawyers for this union bullshit.” Similarly, Supervisor Peter Levy told Medlin that he was “sick and tired of this bullshit” and “didn’t want to have to deal with lawyers and unions and all this other shit.”

On September 30, the Respondent’s CN program director, Angela Sylvestre, discharged 7 of the remaining 10 CN drivers, including DiMurro and Medlin. The judge found that those seven discharges, like that of Malheiro on September 24, were in retaliation for the employees’ union activities, and violated Section 8(a)(3) and (1). The Respondent excepts. We agree with the judge.

First, the judge correctly found that the General Counsel has established a prima facie case that the September 30 discharges were the result of discrimination. In affirming that finding, we emphasize the following factors which show that the drivers’ union activity played a prominent role in the decision to discharge them. The Respondent admittedly knew of the employees’ unionizing activities. It learned of the filing of the petition on September 23, and within a week it had fired nearly three-fourths of the drivers in the unit. In addition to interrogating DiMurro concerning the organizing activity and the identity of the employees who had signed cards, the Respondent’s supervisors indicated their displeasure at the prospect of unionization, and threatened Medlin with discharge if he took part in union activities. On September 24, Levy fired Malheiro for pretextual reasons. On September 25, when Polhemus told her the petition had been filed, Sylvestre said, “I don’t understand this. We have health benefits, we have good salaries. The drivers have representation through their driver manager. What more do you have to do to have unity, to have cooperation, to have a sense that you’re working together?” On September 29, while interrogating DiMurro about the drivers’ union activities, Levy made comments indicating that the drivers had been involved in union activity while their trucks were parked in the street. On September 30, at a meeting with the drivers, called because of the previous day’s truck parking incident, Sylvestre told the drivers that they were uncooperative and that she did not want to work with uncooperative people. That statement, read in conjunction with Levy’s remarks on September 29 and Sylvestre’s reference to cooperation when she learned of the organizing effort, indicates that Sylvestre considered unionization to constitute a lack of cooperation.

We also agree with the judge that Sylvestre’s stated reasons for discharging the drivers were pretextual. In this regard, the judge rejected the Respondent’s contention that economic conditions compelled the reduction in the scope of the CN and the layoff of most of the drivers. He found that, although the CN was losing money in mid-1992, the Respondent’s poor financial condition had existed for “quite some time.”

The Respondent argues, however, that even before the organizing campaign began, Sylvestre had made plans to restructure the CN. The Respondent asserts that Sylvestre planned to reduce the number of routes, trucks, and drivers and to focus on the 20 percent of the clients that provided the CN with 80 percent of its cans and, hence, of its revenue. By eliminating the stops that yielded only one or two bags, but which required the same amount of driver time as the large volume stops, the Respondent contends, it would reduce revenues only marginally while reducing expenses significantly, and thus turn the CN into a profit center. [6] To that end, according to Sylvestre, in late August she performed a computerized ranking of the Respondent’s clients by the number of bags collected at each stop. Also during the summer, the management discussed abandoning the Respondent’s existing policy of accepting CN clients that had as little as one bag per pickup, and instituting a new requirement that clients have a minimum of five bags in order to join the CN. Sylvestre further testified that in early August she prepared a memorandum for the Respondent’s publicity agent, which stated that the Respondent would change its policy around September to require a minimum of five bags per stop. [7] In fact, Sylvestre said she thought that the minimum requirement would be set at more than five bags. Also, according to Sylvestre, at about the same time the Respondent ceased to send out its old brochure, which stated that clients would be accepted that had only one bag per pickup. Finally, Sylvestre testified that she had planned to sevice the restructured CN (which would focus only on large volume clients and on buildings in which several small clients had combined to meet the five-bag minimum) with only 2 trucks and 3 drivers, rather than the 5 trucks and 11 drivers that covered the routes before the discharges.

The Respondent argues that, for the foregoing reasons, the judge should have found that the real reason for the discharges and the reduction in scope of the CN was economic, and that, in any event, the Respondent showed that it would have discharged the eight drivers and restructured the CN as it did for economic reasons, even if the employees had not engaged in union activities. [8]

We are not persuaded. Even though Sylvestre had studied the makeup of the Respondent’s client list and formulated preliminary plans for restructuring the CN, the Respondent has not shown that it would have done what it did, when it did, in the absence of the drivers’ union activities. [9] In addition to the factors relied on by the judge, we note that Sylvestre’s memo indicating an upcoming change to a five-bag minimum pickup size states that the “target date” is September 1992, yet the restructuring decision was not made until the last day of September, and then on the spur of the moment and because of Sylvestre’s personal pique at the drivers (a subject we shall return to below.) Moreover, Sylvestre admitted that the five-bag minimum had not been established on August 5 (the date of the memo), and that she actually felt confident that the minimum would be more than five bags. Finally, although Gerald Smith, the Respondent’s business advisor, had suggested in the spring of 1992 that the CN be restructured to concentrate on large volume clients, he recommended that the number of trucks be reduced from five to three or four [10] rather than two, as Sylvestre decided). Smith also testified that he would never have recommended eliminating all the drivers who were discharged on September 30. [11]

Moreover, we find it significant that Sylvestre should have made a decision which, according to the Respondent, was necessary for economic reasons and had been under consideration for those reasons at least since early August, only after she had assertedly been provoked by the actions of the drivers--or some of them--on September 29 and 30. Thus, the Respondent argues that the drivers upset management by leaving trucks parked on the street on September 29, making them vulnerable to being ticketed and possibly towed at the Respondent’s expense. [12] DiMurro compounded the offense by failing to answer his beeper when Dorsey attempted to find out what was happening. The next morning, at a meeting with the drivers, Sylvestre was unable to convince the drivers of the seriousness of the truck parking incident. She also testified that the drivers demonstrated a bad attitude by certain suggestions they made at the meeting regarding ways in which the CN’s financial situation might be improved, by complaining about the lack of health insurance when coverage had been extended in July, and by DiMurro’s refusing to answer questions about arbitrary discharges that took place when, in the past, he had been a supervisor and other matters that had been his responsibility. Further, the Respondent contends, after the meeting, Vice President Bennet Welikson reported to Sylvestre that the drivers were late picking up their trucks. Finally, Sorter Supervisor Raymond Vega informed Sylvestre that the drivers had said that the CN was going to be shut down and that it was the sorters’ fault, but that the drivers did not care because they could collect unemployment compensation. It was the last event, according to Sylvestre, that triggered her decision to restructure the CN and discharge 7 of the remaining 10 drivers. [13] Yet, as the judge found, Sylvestre did not ask which drivers made the assertedly offending statements, and thus did not know whether any of the drivers she chose to retain had been among those making the statements.

In sum, the Respondent appears to contend that Sylvestre’s September 30 decision to restructure the CN to use only two trucks and three drivers had been under consideration for some time and was economically necessary, but was precipitated by a seemingly trivial event involving unnamed drivers and was implemented in such a fashion that Sylvestre could not have known whether she was discharging drivers who had been entirely innocent of the behavior she found so disconcerting. We find it highly implausible that Sylvestre actually engaged in the sort of eccentric decision-making she described in her testimony, and it comes as no surprise to us that the judge did not credit her explanation. On the basis of the entire record, then, we agree with the judge that the Respondent did not carry its burden of proving that it would have restructed the CN and discharged the drivers on September 30 if they had not engaged in union activities. [14]

The Respondent contends, for a variety of reasons, that at least some of the drivers who were discharged were inferior to the drivers it chose to retain--Anthony Steele, Ralph Brown, and Mark Castro--and thus that the judge erred in finding that performance was not shown to be a consideration in the Respondent’s September 30 decision. We find no merit to that contention. In the first place, it is clear that the judge did not find that performance played no role in the selection of drivers to be discharged. He specifically found that Sylvestre relied on the recommendations of Supervisors Levy and Vega in selecting Steele, Brown, and Castro for retention on the basis of their performance. When he stated that performance was not a consideration in the September 30 decision, then, the judge obviously meant that the decision to discharge seven drivers was not made because of the drivers’ performance, but because Sylvestre had decided to restructure the CN. Assuming that performance was considered in determining which drivers would be discharged and which retained, [15] such a fact is beside the point. The question is not whether the Respondent, in selecting particular individuals for discharge, chose to get rid of more productive union sympathizers and to retain less productive employees who did not support the Union. (Indeed, all of the drivers had signed union authorization cards, including the three who were not discharged.) The question is whether, in the absence of union activity, there would have been a mass discharge at all on September 30. We answer that question in the negative. Consequently, it is immaterial that the Respondent may have chosen relatively more productive drivers for retention. [16]

For all the foregoing reasons, as well as those relied on by the judge, we affirm his finding that the Respondent violated Section 8(a)(3) and (1) by reducing the scope of the CN and discharging the seven drivers on that date.

II. THE ALLEGED SUPERVISORY STATUS OF GENE DIMURRO

The Respondent has excepted to the judge’s failure to find that Gene DiMurro was a superevisor, and hence not a member of the unit, at the time of the events in question. [17] We find no merit to that exception. Although the parties stipulated that DiMurro was a supervisor until August 11, when he resigned as driver/manager and became solely a driver, they did not stipulate as to which of his duties in the capacity of driver/manager conferred supervisory status. The Respondent correctly observes that when the driver/manager who succeeded DiMurro in that position resigned in early September, Levy asked DiMurro to put the manifests together and “get the trucks on the road” until another replacement could be found, and DiMurro did so until he was discharged. The record does not reveal, however, whether the duties DiMurro assumed in September, which apparently included assigning and/or directing employees, involved the use of independent judgment or were of a merely routine or clerical nature. Further, although Levy asked for DiMurro’s opinion regarding Levy’s desire to discharge Malheiro, Medlin, Mitchell, and Bastian on September 24, DiMurro’s opinions appear to have carried no weight. DiMurro testified that he defended Bastian and Medlin and could not remember what if anything he said about Mitchell. Regarding Malheiro, Dimurro testified that he said only “you have to do what you have to do.” [18] Indeed, although all four drivers ultimately were fired--Malheiro for pretextual reasons on September 24, and the three others in the mass layoff for reasons wholly apart from Levy’s desire to dismiss them--DiMurro’s “opinions” clearly played no part in their dismissals. Thus, the evidence is insufficient to establish that DiMurro had the authority effectively to recommend either discharge or retention or to exercise independent judgment concerning any of the other types of authority listed in Section 2(11) of the Act. Consequently, the Respondent has not carried its burden of demonstrating that DiMurro was a supervisor. [19]

III. THE RESTORATION REMEDY

Having found that the Respondent unlawfully reduced the size of the CN and discharged eight of the CN drivers, the judge ordered the Respondent to restore the CN to its size as of September 29, 1992, and to offer to reinstate the eight discharged drivers. The Respondent has excepted to those portions of the remedy. It has also moved to reopen the record so that it may introduce evidence that did not exist at the time of the hearing and that the Respondent asserts will establish that restoration of the CN and reinstatement of the drivers are inappropriate.

When an employer has curtailed operations and discharged employees for discriminatory reasons, the Board’s usual practice is to order a return to the status quo ante--that is, to require the employer to reinstate the employees and restore the operations as they existed before the discrimination--unless the employer can show that such a remedy would be unduly burdensome. [20] We find that the Respondent has not shown, on the basis of the record made at the hearing, that it would be unduly burdensone for it to restore the CN to its size as of September 29, 1992, and to reinstate the eight discharged drivers.

First, although there was cause for concern over the performance of the CN, that operation was not the hopeless case the Respondent attempts to portray. As we have seen, the CN chronically encountered economic difficulties, and sustained operating deficits in all but 2 months in 1992 prior to the September 30 restructuring. The fact remains, however, that for the first time, the CN turned a small profit for the 1992 fiscal year. The Respondent’s financial advisor, Smith, testified that he would never have proposed eliminating all the drivers who were discharged on September 30. Smith did recommend that, in order to focus on high volume clients, the CN reduce the number of trucks from five to three or four, but not to two, as Sylvestre actually did. The testimony of the Respondent’s own financial advisor, then, fails to establish that it would be unduly burdensome to require the restoration of the CN to its former size. Finally, we note that, at the time of the hearing, the Respondent still had all five of its trucks, three of which were leased for a period of several years; consequently, there would have been little if any capital outlay required as a result of an order to restore the CN and reinstate the drivers.

The Respondent contends, however, that regardless of the situation that existed on September 30, subsequent events have made it impossible to restore the CN to the size it was before the mass discharges. First, the Respondent argues, it has implemented a four-bag minimum pickup requirement that precludes many small clients from being members of the CN. Second, the Respondent claims that, in any event, numerous clients ceased to participate in the CN when the CN was effectively shut down by the strike during the last 3 months of 1992. According to the testimony of Elisabeth Peery, the CN’s communications director, the combination of those circumstances caused 20 to 30 percent of the CN’s clients to drop out of the network. Moreover, the bombing of the World Trade Center in February 1993 cost the CN a number of clients. Thus, the Respondent argues that it would literally be impossible to restore the CN to its pre-September 30 size. We find that argument unpersuasive.

Concerning the Respondent’s contention that it cannot restore the CN to its former size because it has restructured the CN and imposed a four-bag minimum, [21] we have already affirmed the judge’s finding that the Respondent’s economic rationale for discharging the drivers--which rationale encompassed the restructuring of the CN--was pretextual. Because adopting the four-bag minimum was not the real reason for the discharges, and would not have occurred (or at least would not have occurred when it did) if the drivers had not engaged in union activities, the Respondent’s argument that it cannot abandon the four-bag minimum fails unless it is supported by other evidence. A pretextual argument fares no better as a defense to a restoration order than it does as an answer to the original allegations of unlawful conduct, particularly where, as here, the record does not indicate that any significant capital outlay would be necessary to restore the status quo ante.

Nor do we find merit to the argument that the loss of clients precludes a restoration order. When the Board orders the restoration of the status quo ante, it is understood that the order means “as far as possible, given the economic realities faced by the employer at the time of compliance.” The Board does not order the reinstatement of employees to nonexistent jobs. We recognize that, even with a good-faith effort, the Respondent may not be able to attract enough clients to enable it to expand the CN to its September 29 size. If that proves to be the case, the Respondent will be in compliance with our reinstatement order if it reinstates as many of the discharged employees--either as drivers or in substantially equivalent positions--as are needed to serve the clients it has been able to attract and retain. [22]

We wish to stress that, although we are ordering the Respondent to restore the CN to its September 29 size and to offer to reinstate the unlawfully discharged drivers, our Order does not require the Respondent to operate the CN indefinitely at that size (or at all), especially at a loss. The Respondent may lawfully restructure the CN, or eliminate it entirely, if it can show that its decision is made for legitimate business reasons.

The Respondent has moved to reopen the record so that it can present further evidence, based on developments since the hearing, bearing on the appropriateness of the restoration order. The Respondent represents in its motion that it closed the CN entirely in June 1993, and that it is now impossible to reinstate any of the discharged drivers because there are no positions for them to fill. The Respondent further represents that it has defaulted on its leases of the three leased trucks formerly used by the CN and that those trucks have been repossessed. [23] In light of these representations, the Respondent urges the Board to remand the case to the judge to determine whether there is any basis for a restoration and reinstatement remedy.

We shall deny the Respondent’s motion to reopen the record, but we shall amend the judge’s recommended Order to provide explicitly that restoration and reinstatement will be required unless the Respondent can establish at compliance--on the basis of evidence that was not available at the time of the unfair labor practice hearing--that those remedies are inappropriate. [24] If, for example, the Respondent can demonstrate that it has closed the CN and did so for legitimate business reasons, it need not restore the CN to its September 29 size or reinstate the drivers. In that event, the appropriate make-whole remedy would be to award backpay until the date of the closing. [25]

We are mindful that the Seventh Circuit Court of Appeals recently disapproved of a similar conditional restoration order. NLRB v. Special Mine Services, [127 LC ¶10,955] 11 F.3d 88 (1993). We find Special Mine Services distinguishable from this case. The court in Special Mine Services found that the Board had articulated no basis for rejecting the employer’s claim that a restoration remedy would be unduly burdensome. In this case, we have fully explained why, on the record established at the hearing, the Respondent has not demonstrated that a status quo ante remedy would pose an undue burden.

Another source of concern for the court in Special Mine Services, supra, however, was that the Board’s decision contained a statement that the employer would be allowed to introduce evidence in compliaance proceedings, that was not available at the hearing, that might be relevant to the appropriateness of the restoration remedy. The court seemed to think that the Board might not have considered the subject of restoring the status quo ante at all, but simply had postponed the “real” decision to compliance. The court also worried that, were it to enforce the Board’s Order, the employer would be directed--unequivocally--to restore its earlier operations without being able to raise the issue of the cost of restoration, and that it would be put in jeopardy of contempt proceedings if it failed to do so.

With all due respect for the court, we think it misperceived the nature and consequences of the restoration remedy the Board imposed in Special Mine Services, supra. The Board did not “defer” decision in Special Mine Services, and we are not “deferring” decision here. We have found, on the basis of the record made at the hearing on unfair labor practices, that the Respondent has not shown that restoration of the CN to its size on September 29--the presumptively appropriate remedy for its discriminatory restructuring of the CN and the firing of the drivers--is inappropriate. Acordingly, we are ordering the Respondent to restore the status quo ante and to offer to reinstate the discharged drivers. That is our decision. We recognize, however, that in this case, as in almost any case, evidence may come to light after the close of the record in the unfair labor practice hearing that may, if credited and found sufficiently material, establish that some portion of the remedy imposed by the Board is no longer appropriate. [26] Indeed, the evidence proffered in the Respondent’s motion is an example. Our directing the Respondent to restore the status quo ante, unless it can prove at compliance that restoration and reinstatement are no longer appropriate, is not a “deferral” of our decision. It is simply an explicit recognition of the reality that the appropriateness of almost any affirmative remedy may change over time, and an effective mechanism for amending this particular remedy should the need arise. [27]

We turn now to the court’s concern that enforcement of a provisional restoration order such as the one we impose today would, in practice, unequivocally require the Respondent to restore the CN to its September 29 size, and that its failure to do so might subject it to contempt penalties. With all due respect, we think the court’s concern is unfounded. The Board addressed this very subject in Lear Siegler, Inc., supra. Noting that several courts had refused to enforce restoration orders, the Board observed that in some of those cases, the restoration order had been unequivocal. The Board speculated that the reviewing courts might have thought that if those orders were enforced, the Board at compliance might ignore all evidence of changed circumstances, require restoration of operations even if that remedy was no longer appropriate, and bring contempt proceedings based on the literal terms of the orders. [28] The Board made clear in Lear Siegler that its order, which simply stated that the employer might introduce evidence at compliance concerning the continued appropriateness of the restoration and reinstatement portions of the remedy, clearly implied that if the employer could demonstrate that the restoration of its facility would by unduly burdensone, restoration would not be required. Thus, the Board went on to say, “court enforcement of the Order in this case will enable the Board to require restoration only if the [r]espondent cannot show that restoration would impose an undue hardship.” [29] The Board also emphasized that contempt proceedings would not and could not be brought against the employer for failing to comply with its restoration order unless and until (1) the Board, in compliance proceedings, had finally determined that restoration was appropriate, [30] (2) the employer failed to comply with the restoration order, (3) the Board’s Order was enforced, and (4) the employer refused to comply with the order as enforced. [31] Thus, as in Lear Siegler, the Respondent will have the opportunity to present both the evidence adduced in its motion to reopen the record and any additional evidence that may bear on the appropriateness of the restoration and reinstatement remedy at compliance. If it fails to do so, or if the evidence it presents is unconvincing, the restoration and reinstatement order will stand, subject to court review. If, however, the Respondent presents evidence at compliance that convinces the Board that the restoration and reinstatement portions of the Order would be unduly burdensome because of changed circumstances and therefore are no longer appropriate, the Respondent will not be required to carry out those portions of the Order and, as the Board stated in Lear Siegler, will be in no danger of contempt proceedings if it declines to do so. [32]

To be sure, the approach we take here is not the only course available. The Board, in its discretion, could grant the motion to reopen the record, remand the case to the judge, and leave it to him to evaluate the Respondent’s newly proffered evidence. [33] As the Board found in Lear Siegler, however, leaving the issues raised in the motion to reopen the record to compliance is consistent with the Board’s established practice of leaving the details of the remedy to the compliance process. It is also more efficient than remanding the case to the judge, waiting for his supplemental decision and any ensuing exceptions, and issuing a supplemental decision and order before compliance proceedings could even begin. Under the approach we took in Lear Siegler, and which we take again today, all compliance issues, including those involving reinstatement and restoration, will be decided in one compliance hearing. [34] Finally, we note that, even if we were to reopen the record and remand the case to the judge to evaluate the Respondent’s new evidence, there is no guarantee that, after the judge has held a second hearing and rendered his supplemental decision, some party would not file yet another motion to reopen the record, based on evidence acquired since the record closed in that hearing. And so on, potentially ad infinitum. Although this scenario, with its attendant delay, is unlikely to eventuate often, we deem it advisable to avoid this kind of piecemeal approach to disposing of the issues of restoration and reinstatement. In our view, it will be more efficient to leave to the compliance process the task of evaluating any evidence--both that proffered by the Respondent in its motion and any that may come to light between now and the time of the compliance hearing--that may reflect on the continuing appropriateness of the status quo ante remedy.