General Electric Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 401 (N.L.R.B. 1969)

GENERAL ELECTRIC COMPANY 401
General Electric Company and Lodge 1000,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 38-CA-569
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 17, 1969, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support pf the Trial
Examiner's Decision and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case,' and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, General Electric
Company, Bloomington, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This proceeding,
under Section 10(b) of the National Labor Relations Act,
as amended , was heard at Bloomington , Illinois, on
February 6, 1969, pursuant to due notice. The complaint,
which was issued on December 11, 1968,' on a charge
dated November 5, alleges that Respondent engaged in
unfair labor practices proscribed by Section 8(a)(1) and
(5) of the Act by unilaterally reinstituting a new job
classification and pay rate called Class "C" maintenance
without prior notice to the Union as required by Section
8(d) of the Act. Respondent answered denying the refusal
to bargain.
All parties appeared at the hearing and were
represented throughout by counsel or other agent, who
were afforded full opportunity to present evidence and
contentions, file briefs, and propose findings of fact and
conclusions of law. Subsequent to the close of the hearing,
briefs were received from the General Counsel and
Respondent and have been carefully considered.
Upon the entire record,' including my observation of
the demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits,
and I find that, at all times material herein, Respondent
has been engaged at its Bloomington, Illinois, plant, the
only facility with which we are here concerned, in the
manufacture of electrical controls and other goods. In the
conduct of its business operations, Respondent purchases
and receives goods and materials annually at its
Bloomington, Illinois, plant, valued in excess of $50,000,
which are transported to the said plant directly from
States other than the State of Illinois. It is further alleged,
and admitted, and it is hereby found that, by virture of
the foregoing, Respondent is now, and at all times
material herein has been, an employer within the meaning
of Section 2(2), engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6)
and (7) of the Act, and the jurisdictional standards of the
Board.
Respondent admits, and I find that, Local 1000,
International Association of Machinists and Aerospace
Workers, AFL-CIO, is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) and the certified bargaining representative of
all Respondent's employees in the following unit within
the meaning of Section 9(a) and (b) of the Act:
All production and maintenance employees employed at
the Bloomington, Illinois, plant, excluding office clerical
employees, professional employees, guards, and
supervisors as defined in Section 2(11) of the Act.
II. THE UNFAIR LABOR PRACTICES
'The Respondent ' s request for oral argument is hereby denied, as the
record , including the exceptions and briefs, adequately presents the issues
and positions of the parties.
'The Respondent excepted to certain credibility findings made by the
Trial Examiner . It is the Board ' s established policy not to overrule a Trial
Examiner' s resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
are incorrect . We find no such basis for disturbing the Trial Examiner's
credibility findings in this case . Standard Dry Wall Products. Inc, 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
A. Background - the Bargaining Negotiations
Respondent's labor relations at its Bloomington plant
have been the subject of recent litigation . On March 3,
1967, the Board issued an Order in General Electric
'Unless otherwise indicated , all dates refer to the year 1968.
'The unopposed motions of the General Counsel and Respondent to
correct certain typographical errors in the transcript are hereby granted.
177 NLRB No. 43
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company . Case 38-CA-217, adopting pro forma, in the
absence of exceptions , the Decision of Trial Examiner
Ivar H. Peterson , dated February 3, 1967. Trial Examiner
Peterson found that , on or about June 6, 1966,
Respondent, in violation of Section 8(a)(5) and (1),
unilaterally instituted an apprenticeship training program
for its maintenance employees . Respondent complied with
the Board ' s Order and discontinued the program.
For a number of years , the Respondent has enjoyed
contractual relations with the Union , the certified
collective-bargaining representative of its production and
maintenance employees at the Bloomington plant . The last
contract between the parties , executed on October 28,
1966, is effective for a term beginning October 3, 1966,
and ending October 26, 1969.
Prior to the adoption of the apprenticeship training
program , the normal line of progression within the
mechanical maintenance department , insofar as here
relevant , was from the R-12 classification to the following,
in sequence:
Class C, R-13
Class B, R-16
Class A, R-19
Upgrading was on the basis of merit and not automatic.
When the apprenticeship training program was
instituted in June 1966, the plan was for apprentices to
graduate into Class C, then to progress to Class B and
finally to Class A. However , no one ever graduated from
the program during the period of its operation. The
eligibility requirements for admission to and participation
in the program were more exacting and demanding, in
such matters as age , education, discipline , and control,
than were the requirements for Class C work . However, it
appears from the record that applicants were recruited
from among the maintenance employees and that trainees
continued to work in the shop doing some of the work
formerly done by Class C men. Class C employees, who
started as trades helpers , performed some semiskilled
chores and advanced to Class B upon demonstration of
the requisite skills and aptitude.
During the negotiations for the 1966 contract and while
the charges in Case 38-CA-217 were still pending, the
Company proposed and the Union agreed to eliminate the
Class C, R-13 classification which had no employees
between June and October . The parties also agreed to
establish two new classifications: a factory general with
the R-value of 11 and a unit maintenance man with the
R-value of 20. It was understood that factory general
employees would perform unskilled tasks such as loading
and unloading of trucks , moving materials and furniture,
and general cleanup work; that they would take
instructions from the maintenance foreman and come
under the upgrade procedure applicable to the R-12s.3 The
unit maintenance classification was apparently created to
meet the Union ' s demands for a higher rate for
maintenance employees assertedly because their duties had
become more complex.
At the negotiation session of October 16, the Union
asked whether , in the event the Board found the
institution of the apprenticeship program to have been
lawful, trainees would become Class B maintenance
employees upon graduation and the Company answered
that they would progress automatically to Class B. The
'Pursuant to an agreement reached at the October 16 bargaining session,
the Company prepared and submitted to the Union , between 60 and 90
days after execution of the contract, written descriptions of all jobs in the
R- I I classifications.
Union also put the question in reverse and inquired
whether the Company would upgrade from the shop in the
event the institution of the program was found to have
been unlawful. The Company replied that it would give
the R-15s and R-14s, in that order, first opportunity to
move up. The abolition of Class C and the creation of
factory general and unit maintenance man classifications
were not, however, conditional upon the outcome of the
pending Board proceeding.' Thus, from about October 28,
1966, the date of execution of the current contract, until
about March 1967, the date the apprenticeship program
was abandoned by the Company, the classifications and
activities within the mechanical maintenance department,
relevant here, were as follows: factory generals performing
unskilled tasks; employees in the apprenticeship training
program performing some of the tasks formerly done by
Class C men; and Class B, Class A, and unit maintenance
man doing the more skilled work.
After discontinuance of the training program and until
about October 28, 1968, the order of progression was
from the R-15 or R-14 classification to Class B, to Class
A, and finally to unit maintenance. Between March 1967
and November 1968 two' and possibly three employees
were upgraded from R-14 to Class B.6 And, in this period,
work which had been done by Class C men and
apprentices was performed mainly by Class B employees.
On occasions, however, the Company used the factory
clericals to do maintenance work despite written and oral
protests from the Union.
B. Reinstitution of Class C - the Grievance Initiated
On October 21, James R. Lathim, a union
committeeman, complained to James G. Kehias, the
Company's manager, personnel relations, that the R-lls
were working out of classification. Kehias reported the
complaint to Richard C. Ehrman, the Company's
manager of relations, who instructed Kehias to tell
Lathim that the Company would take care of the problem
and that he would understand the final resolution. Kehias
credibly testified that he relayed Ehrman's message to
Lathim. Lathim averred that he did not recall but did not
deny having received the message.
On October 23,' Ehrman summoned shop committee
Chairman Coleman H. Smith and Lathim to his office
The findings pertaining to the October 16 bargaining negotiations are
based on the uncontroverted and credited testimony of Bernard J Grosso,
the Union 's business representative.
'G T Allison and L S Jackson Grosso testified that one Hale, the
third employee, was also upgraded from R -14 to Class B but his name
does not appear in the list of such employees included in the written
stipulation (G C. Exh.2 )
'From October 16, 1966, through October 28, 1968, 16 employees were
classified as mechanical maintenance Class B with the R-value of 16 (As
of the date of the hearing , there were approximately 20 employees in this
classification .) Of the said 16 employees and prior to their Class B
designation , about 10 had held the classification of mechanical
maintenance Class C with the R-value of 13; 2, the classifications of
Plastic Com. Pre-Mtx and Set-up Mach . A Illness, respectively, with the
R-value of 14 , in each instance, 1 and possibly 3 were hired from the
outside as Class B; and I had held the title of maintenance helper with
R-value of 12
'Smith swore that the meeting occurred on October 21 Ehrman,
corroborated by Kehias, testified that it took place on October 23, that he
left Bloomington on October 21 to attend a conference in New York that
day, and that, before leaving , had instructed Kehias to tell the union
committee "to cool it" until he returned From a composite reading of the
testimony, I am persuaded that the recollection of the Company's
witnesses is more accurate.
GENERAL ELECTRIC COMPANY 403
where, in the presence of Kehias, Ehrman announced that
the Company had decided to reinstate Class C
maintenance effective at once and that the reinstitution of
the classification would solve all the problems with respect
to the R- IIs. Ehrman then gave the Union representatives
job descriptions for Classes A, B, and C. This was the
first time the Company had prepared job descriptions for
these classifications. Moreover, such descriptions had been
excluded from the ones the Company had agreed to
furnish the Union during the 1966 negotiations. Either
Smith or Lathim asked where the Company would get
employees for the reinstituted classification and Ehrman
replied that vacancies would be filled by upgrading
employees in the R-12 category. The Union also inquired
about the ultimate fate of the R-lls but there was no
discussion of the subject. Ehrman did not, at that time,
tell the Union that, in reinstituting Class C, the Company
was exercising its rights under the 1966 contract, nor did
he assert that the classification was being reinstated at the
request of the Union.
At the next meeting held October 24, the union
spokesman expressed concern that the reinstatement of
Class C might lead to the downgrading of the R-11s. John
Neal, the Company's placement specialist, replied that
such an occurrence was highly unlikely as the Company
had more vacancies than it was able to fill.
The parties met again the next day to discuss anew the
Class C and R-11 classifications. Kehias opened the
meeting by stating that he thought the problem had been
resolved at the meeting of October 23 and John Chapman,
the Company's manager of engineering, remarked that the
Union had agreed to reinstate Class C. To the latter
comment, Smith replied that the Union had not agreed or
disagreed.
At the Union's request a meeting was arranged for
October 28. At the October 28 meeting, the Company
"proposed" the reinstatement of Class C,' the
employment of four employees in the reinstated
classification, and the reduction in size of the factory
general complement from six to two employees. The
Union reminded the Company that it had stated, during
the 1966 negotiations, that the R-l4s and R-l5s would be
upgraded to Class B and then went on to say that the
reinstatement of Class C changed the established upgrade
procedure by substituting Class C for the R-14 and R-15
classifications as the training group for the mechanical
maintenance employees. The Company replied that there
was no other way to build a competent maintenance work
force than by going through Class C and acknowledged
that, henceforth, upgrading to Class B would come from
holders of Class C rather than R-l4 and R-15
designations. The Union then complained that, in
reestablishing Class C the Company was taking away the
employees' rights and the Company rejoined that the
employees have no voice in the matter because article
XXVI of the 1966 contract gives it the right to eliminate
unnecessary jobs and to establish those it deems essential
for its operation. Ehrman testified he told the Union that
the Company was reinstating Class C because the Union
had requested it. However, the statement is not reflected
in the Company's minutes of the October 28 meeting and
does not appear in Ehrman's affidavit to the
Officer-in-Charge dated November 22, nor in the
statement of Attorney Stanley B. Frenze, who appears to
be house counsel for the Respondent, dated November 15.
Further, Kehias, who also attended the meeting, testified
that he could not recall any such statement by Ehrman.
Accordingly, I do not credit this testimony of Ehrman. In
the end, the union committee withdrew and caucused for
about 5 minutes. When it returned, a spokesman
announced that the Union opposed the reinstitution of the
Class C, R-13 classification.
As shown above, the reinstitution of Class C was
effective from October 23, the date the Company's
decision was first proclaimed. Since then the Company
has reclassified six employees as mechanical maintenance
Class C all of whom had held various job designations
with the R-value of 12. Three were upgraded on
November 4, the fourth on December 16, the fifth on
January 13, 1969, and the sixth on January 20.' Class C
men are now doing the work formerly done by Class B
and factory generals from March 1967 until November
1968.
Thus, at all times since October 23, the line of
progression within the mechanical maintenance
department has been, and was at the time of the hearing,
from R-12 to Class C, to Class B, to Class A, to unit
maintenance.
The 1966 contract contains a grievance provision under
which a three-step procedure is established. On November
19, Shop Chairman Smith filed a grievance in which the
Union charged that the Company violated the contract by
reinstituting Class C. The Union contended that the
classification was bargained out of the contract during the
1966 negotiations and could not be reimposed without the
consent of all parties. At the first step meeting held the
same day, the Company took the position that the
reinstatement of Class C was in accordance with the
provisions of section 1(b), article III," and section 2,
article XXVI," of the 1966 contract. At the second step
meeting held November 26, the Company declared that
the decision to reestablish Class C was, inter alia, in
conformance with "past practice and contractual
provisions." And, at the third step session on December
23, the Company restated the reasons it had advanced
earlier to support its position adding that it has had the
right (to create new job classifications) "in all agreements
since 1960" and again cited section 2, article XXVI. After
the grievance was finally rejected at the third step, the
Union requested arbitration but, when the Company
refused to go along, did not pursue the matter.
'The Company' s minutes of the October 28 meeting speak in terms of a
proposal . The word is a misnomer as the decision to reinstate the
classification had already been made and, in fact, was announced by
Ehrman at the October 23 meeting.
'No employee was reclassified to Class C during the 2-year period prior
to November 4.
"This sec reads as follows:
The Union recognizes, except as otherwise stated in this Agreement, that
the Company retains the exclusive right to manage its business , including
(but not limited to) the right to determine the methods and means by
which its operations are to be carried on, to direct the work force and to
conduct its operation in a safe and effective manner
"This sec. provides
All of the hourly rated job classifications (occupational titles) and the
applicable job rates, the progression schedules for the job classifications
included in the bargaining unit shall be listed in Exhibit "B" attached
hereto and made a part hereof . The Union shall be immediately
informed of any additions or eliminations of any job classifications
(occupational titles), and any change in a job rate for any of the listed
job classifications and the reasons therefore The Company will upon
request give the Union information relating to the methods and
techniques being used in calculating incentive standards
When difficulty is experienced by an employee or a group in meeting
a time standard and no employee or group has previously met this
standard , the operation planning will be reviewed by the Company upon
the request of either the employee or the Steward in the unit.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discussion and Concluding Findings
The complaint alleges in substance that Respondent's
action in unilaterally reinstituting the Class C
maintenance classification constitutes a contract
modification requiring compliance , not here met, with the
notice and other premodification conditions commanded
by Section 8(d) of the Act and was thereby violative of
Section 8(a)(5). Alternatively, it is alleged that, even
absent a finding of contract modification, Respondent has
violated and is violating its obligation to bargain in goon
faith by the unilateral reinstatement of Class C. The
Respondent denies these allegations.
Section 8(a)(5) imposes upon an employer the duty to
bargain collectively with the majority representative of its
employees. This duty is breached when the employer
without notice to or bargaining with the majority
representative, unilaterally changes wages, hours, or other
terms and conditions of employment. N.L.R.B. v. Benne
Katz, d/b/a Williamsburg Steel Products Co., 369 U.S.
736. Such a change is , in practical effect , an act in
derogation of an employer' s bargaining obligation under
Section 8(d) and the statutory rights of the bargaining
representative and therefore violates Section 8(a)(5).
Reduced to basic essentials , the case for the General
Counsel presents simply a contract modification made
unilaterally in midterm without prior notice to the Union.
More specifically the General Counsel sought to prove
that, by unilaterally reinstating Class C and making it the
training group for the maintenance employees,
Respondent changed the agreed order of progression in
the maintenance department since such action bars R-14
and R -15 employees from advancing to Class B and
higher classifications . Without more , this is enough to
establish a prima facie violation of the statutory
obligation to bargain , absent proof of a valid defense.
It is true , of course, that the 1966 contract contains no
specific reference to the deletion of Class C. The deletion
of the classification was, however, the subject of
negotiations and it followed an agreement by the parties
later relied on by the Union in executing the contract. i2
Thus, the agreement to delete Class C was, in effect,
included in the contract as an aspect of its wage rates
through section 2, article XXVI, which provides, inter
alia, for the listing of all job classifications, rates, and
progression schedules."
Against what appears to be a formidable case for the
General Counsel, Respondent presents the argument that
the reinstitution of Class C was, in fact, suggested by
officials of the Union. The argument lacks merit. Ehrman
testified that, sometime in late September or early
October 1967 and again in February 1968, Allen E.
Gibson" and James R. Lathim, a shop committee
member , appeared in his office where they asked when the
Company was going to solve the problem of the R-lls
and suggested that it reinstate Class C and get rid of the
R-lls. Ehrman replied that he would consider the
suggestion . Corroborating Ehrman ' s testimony in certain
particulars, Gibson credibly testified that he alone asked
Ehrman to reinstate Class C because of recurring
complaints about the R-lls doing Class C work."
However , notwithstanding my credibility finding that
Gibson requested the reinstatement of Class C, I am not
persuaded that his further testimony, that in October 1968
"Cf Leeds & Northrup Company . 162 NLRB 987; The Press Company.
Incorporated , 121 NLRB 976.
"Cf C & S Industries , Inc, 158 NLRB 454
Lathim told him: "Al we've got what we were both after.
Dick is going to put the R-13 back in again," was
truthful. As Judge Learned Hand aptly said in N.L.R.B.
v. Universal Camera Corporation.:'
It is no reason for refusing to accept everything that a
witness says, because you do not believe all of it;
nothing is more common in all kinds of judicial
decisions than to believe some and not all.
Having found that Gibson requested the reinstatement
of Class C, a question arises whether in so doing he was
speaking for himself or for the Union. Gibson admitted
that the idea was his own and that the bargaining
committee did not authorize him to make the request.
And, according to the credited and uncontroverted
testimony of Smith, who succeeded Gibson as shop
chairman, Gibson never reported the request to the
committee. Smith also testified, credibly and without
contradiction, that two members of the five-member
committee often discussed and resolved minor problems
with management. However, Smith continued to say that
if the problem was a serious one and involved a matter of
importance the subunit reported back to the full
committee. Certainly, a proposed modification of a
contract can not be characterized as minor or
unimportant. In view of the foregoing, I find that
Gibson's request was personal, there being no showing
that he was expressing the Union's position. Moreover,
even if construed as a union request, the request was
repudiated by the Union in March when Gibson was
ousted as shop chairman for dealing independently with
management. Assuming for the purpose of argument,
however, that the request reflected the considered
judgment of the Union, it does not follow that the
decision to reinstate Class C, made some 12 to 8 months
thereafter and after Gibson had severed all ties with the
Union, was motivated by the Union's request. In this
connection the following facts are illuminating:
Ehrman testified that he made the decision to reinstate
Class C and, in the Company's minutes of the October 28
meeting, Ehrman frankly acknowledged that the decision
was his alone.
Ehrman also testified that the classification was
reinstated because the Company needed the lower grade
as a training category for the maintenance employees
since it no longer had the apprenticeship training program
"Gibson was president of the Local and chairman of its shop committee
until about March 11 when he was deposed as chairman because of a
propensity to deal separately with management In April or May, Gibson
became a salaried employee outside the bargaining unit.
"Called by the General Counsel after Ehrman had testified as a 43(b)
witness but before Gibson took the stand , Lathim first declared that he did
not recall going to Ehrman 's office with Gibson and asking that Class C be
reinstated However , when later recalled as a rebuttal witness , Lathim
suddenly remembered that the October 1967 and February 1968 meetings
did not take place. Asked to explain how his memory could have been
jolted to the point of total recall in less than 2 hours, Lathim stated that
when Gibson gave the dates of the meetings he remembered that he was
never in Ehrman 's office with Gibson at anytime while they served on the
committee . I do not credit the above testimony of Lathun for the following
reasons : ( 1) first he was uncertain about going to Ehrman's office with
Gibson , (2) then , after Gibson gave the dates of the meetings, Lathim
suddenly remembered that the meetings never occurred , and (3) the latter
testimony is contradicted by the record which shows that the dates were
first given by Ehrman in Lathim 's presence . In view of Lathim's
uncertainty and the record contradiction of his testimony as well as
demeanor, I regard Lathim 's testimony as generally unworthy of reliability
and I credit it only when it conforms with other credited testimony or
constitutes an admission against the Union 's interest.
"179 F.2d 749, 754 (C.A. 2), reversed on other grounds 340 U S.474.
GENERAL ELECTRIC COMPANY 405
and he admitted having told the shop committee that
Class C would not have been dropped if he had been in
Bloomington in 1966.
In his affidavit to the Officer-in-Charge dated
November 22, Ehrman said:
The reason for the reinstatement of the "C"
classification is that it is needed as an entry for
inexperienced people to learn Maintenance. The reason
it was deleted in the previous contract was that we
expected to have an Apprenticeship Maintenance
Program continued without the entrance grade.
Ehrman testified that, at the time he gave the affidavit,
he told the Board's agent that the Union had requested
the reinstatement of Class C. The statement does not
appear in the affidavit, prepared in the presence of
Respondent's attorney, and I do not accept this testimony.
In Respondent ' s statement of its position to the
Officer-in-Charge dated November 15, Attorney Stanley
B. Frenze said:
It is the Employer' s position in summary that it had the
clear, unequivocal, and unilateral right to add the
Maintenance Class C, R-13 job classification to the list
of classifications appearing at Exhibit B of the current
contract subject only to its obligation to notify the
union of the action it was taking and the reason
therefor, which obligation the Employer fully
discharged.
In its answers to the Union' s written grievance about
the reinstitution of Class C, Respondent justified its action
on the basis of the 1966 contract and past practices.
In view of the foregoing and the record as a whole, it is
abundantly evident, and I find, that, in reinstating Class
C, Respondent was motivated by its own self interest and
that the Union's request, as assumed, was, at best, an
afterthought.
By way of further defense, Respondent argues that it
had the legal right under the 1966 contract to reinstate the
classification and, in its brief, points to section 2, article
XXVI, quoted above, to support its position. In
amplification , Respondent argues that , properly construed,
section 2, article XXVI, permits it to add or eliminate job
classifications, at will, provided that, prior thereto, it
notifies and offers to discuss the change with the Union
and that neither negotiations nor an agreement is
required. Finally, Respondent argues that the dispute is
essentially a matter of contract interpretation and asserts
that, in any event, it acted in good faith.
It is not disputed that Respondent has, in the past,
added and deleted job classifications. But, according to
the credited and uncontradicted testimony of Grosso and
Smith, such changes have only taken place after the
acquisition of new machinery or the adoption of new
methods of operation at which times the Union is notified.
Grosso, who had been shop steward for about 6 years,
also averred that no job dropped during negotiations was
ever reinstated and, if created by agreement, was not later
deleted unilaterally by the Company.
It is plainly evident and I find that Respondent ' s claim
that it had the legal right under section 2, article XXVI,
to alter the contract unilaterally is groundless . But, the
cited provision aside , it is also clear , from an examination
of the contract in full, that there is no reservation to the
Respondent of the right to act unilaterally therein" or
waiver by the Union of its statutory rights." I so find.
"See Clifton Precision Products Division, Litton Precision Products,
Inc, 156 NLRB 555, 563; Smith Cabinet Manufacturing Company, Inc.,
147 NLRB 1506, 1508-09.
Respondent earnestly contends, however, that the issue
here is basically one of contract interpretation and that
the Board should not recast it into an unfair labor
practice. The contention is devoid of merit. It is well
settled that the Board is not foreclosed from deciding an
unfair labor practice question simply because it becomes
necessary to construe a contract to determine whether a
union has ceded power to an employer to act unilaterally"
or whether an employer has contractually reserved the
right to do so.30
Lastly, Respondent stresses its good faith but the claim
is questioned when it is recalled that Respondent bypassed
the Union and avoided bargaining by taking unilateral
action without prior consultation. Moreover, a unilateral
change is sufficient without more to constitute a violation
of Section 8(a)(5) even in the absence of a showing of
subjective bad faith.2' Nor is there merit to the contention
that Respondent discharged its bargaining obligation by
notifying and discussing the change with the Union.
Notice to the Union of a fait accompli did not remove the
initial violation inherent in Respondent's unilateral action.
See C & S Industries, Inc., supra. More specifically,
Ehrman's announcement at the October 23 meeting of
Respondent's decision to reinstate Class C effective at
once can not qualify as good-faith bargaining. The
meeting was an empty formality as Respondent had
already crossed the Rubicon and the Union's protests,
voiced at the meeting of October 28, were but futile
attempts to stem the tide. Good faith requires, among
other things, that negotiations precede not, as here, follow
changes in conditions of employment. But, even assuming
a bona fide offer to bargain, Respondent would not
thereafter have been free to institute a change in contract
terms without the consent of the Union. See C & S
Industries, Inc., supra. This is so because Section 8(d)
bars the Respondent from taking unilateral action to
modify a contract where, as here, the change is not made
in compliance with the requirements of that section.
For all the reasons set forth above, I find that the
Respondent has failed to overcome the prima facie case.
Accordingly, I further find and conclude that Respondent
violated Section 8(a)(5) and (1) of the Act by (1)
unilaterally reinstating Class C and (2) unilaterally
modifying the terms of the 1966 contract without
complying with the provisions of Section 8(d) of the Act.22
,111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
"See Clifton Precision Products Division , supra N.L.R.B. v. Perkins
Machine Company, 326 F.2d 488 (C.A. 1), enfg 141 NLRB 98, The
Timken Roller Bearing Co . v. N.L.R.B., 325 F.2d 746 (C.A. 6), cert.
denied 376 U S. 971.
"N.L R B. v. C & C Plywood Corporation, 385 U S. 421.
"Smith Cabinet Manufacturing Company, Inc., supra.
"N.L.R B. v. Katz, supra.
"See The Standard Oil Company (Ohio), 174 NLRB No. 33; The Scam
Instrument Corporation. 163 NLRB 284; Huttig Sash and Door Company.
Incorporated, 154 NLRB 811; C & S Industries, Inc, supra; Smith
Cabinet Manufacturing Company, Inc., supra.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom.
There remains to be considered the nature of the
affirmative remedy to be recommended bearing in mind
that the remedy should be adopted to the situation which
calls for redress. The General Counsel requests that the
Respondent be ordered (1) to rescind Class C
maintenance, (2) "to promote the appropriate employees
who would have been chosen for Class B at the time
individuals were promoted to Class C," and (3) to
reimburse such employees for any loss in pay they may
have suffered as a result of the unlawful reinstitution of
the classification.
It is the Board 's customary policy to direct a
respondent to restore the status quo ante where
respondent has taken unlawful unilateral action to the
detriment of its employees.=' Accordingly, I grant the
affirmative relief requested by the General Counsel.
I shall therefore recommend that Respondent revoke
and rescind, retroactively to October 23, its unilateral
decision reinstating Class C maintenance.
I shall also recommend that Respondent make whole
its employees deprived of a promotion to Class B
maintenance, if any, by promoting and paying them an
amount equal to the difference between their rate of pay
at the time a promotion to Class B would have been
made, but for the unilateral reinstitution of Class C, and
the Class B, R-16 rate, plus interest at 6 percent per
annum computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Conclusions of Law
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 1000, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees employed
by the Respondent at its Bloomington, Illinois, plant,
excluding office clerical employees, professional
employees, guards, and supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material the Union has been, and now
is, the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally reinstituting the Class C maintenance
classification , on or about October 23, 1968, the
Respondent changed the existing terms and conditions of
employment of the employees in the aforesaid unit
without first complying with the requirements of Section
8(d) of the Act.
6. By its acts as set forth in Conclusion 5, above, the
Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
"See Beacon Journal Publishing Co.. 173 NLRB No 181
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend that the
Respondent, General Electric Company, Bloomington,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Lodge 1000,
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of its
employees in the unit found appropriate herein.
(b) Making unilateral changes in wages, rates of pay, or
other terms and conditions of employment of its
employees in the above-described appropriate unit during
the term of the contract with the above-named Union
without first reaching agreement with the Union
concerning such changes.
(c) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Forthwith revoke and rescind, retroactively to
October 23, 1968, the unilateral decision reinstituting the
Class C maintenance classification which Respondent, on
October 23, 1968, announced and thereafter placed into
effect.
(b) Make whole the eligible employees in the
appropriate unit for any loss they may have suffered by
reason of Respondent's unilateral action in reinstituting
the Class C maintenance classification, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant in Bloomington, Illinois, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Officer-in-Charge of
Subregion 38, after being duly signed by a representative
of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Officer-in-Charge of Subregion 38, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Officer- in-Charge of
Subregion 38, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
GENERAL ELECTRIC COMPANY 407
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Lodge 1000, International Association of Machinists
and Aerospace Workers, AFL-CIO, as the exclusive
representative of our employees in the bargaining unit
described below.
WE WILL NOT unilaterally institute changes in wages,
hours, or other terms and conditions of employment of
the employees in the bargaining unit described below,
during the term of any collective -bargaining contract
covering said employees, without first consulting with
and bargaining with said Union concerning such
changes and reaching agreement on any modification of
the terms of the contract.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act, as amended.
WE WILL, and do hereby , revoke and rescind,
retroactively to October 23, 1968, our unilateral
decision reinstituting the Class C maintenance
classification which we announced on October 23, 1968,
and thereafter unilaterally placed into effect.
WE WILL make whole the eligible employees in the
appropriate unit for any loss they may have suffered by
reason of our unilateral reinstitution of the Class C
maintenance classification. The bargaining unit is:
All production and maintenance employees employed
at our Bloomington , Illinois , plant, excluding office
clerical employees, professional employees, guards,
and supervisors as defined in the Act.
Dated By
GENERAL ELECTRIC
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Subregional Office, Fourth
Floor, Citizens Building , 225 Main Street, Peoria , Illinois
61602, Telephone 309-673-9061, Extension 282.