General Motors Corp.

National Labor Relations Board - Board DecisionsFeb 15, 1968

169 N.L.R.B. 827 (N.L.R.B. 1968)

GENERAL MOTORS CORPORATION 827 General Motors Corporation , Buick-Oldsmobile- Pontiac Assembly Division and International Union, United Automobile , Aerospace and Agricul- tural Implement Workers of America (UAW), AFL-CIO. Case 21-CA-5401 February 15, 1968 SECOND SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, JENKINS, AND ZAGORIA On October 30, 1964, the National Labor Rela- tions Board issued a Decision and Order in the above-entitled proceeding,1 reversing the Trial Ex- aminer's Decision and dismissing the complaint in its entirety. In so finding, the Board held, contrary to the Trial Examiner, that Respondent did not vio- late Section 8(a)(5) and (1) of the Act by leasing the OK parking lot at its South Gate, California, plant, to Pacific Motor Trucking Company on June 17, 1963, and transferring its 18 department 66 drivers to other unit jobs because those actions constituted a change of method and work reassignment and as such were permitted by the managerial-rights clause as well as other provisions of the contract with the Union. Upon the Union's petition to review and set aside the Board's Order, the Court of Appeals for the District of Columbia2 remanded the proceeding to the Board for clarification of its opinion. Pursuant to the court's remand, the Board reconsidered the Trial Examiner's Decision, the Union's exceptions to his Decision, the briefs submitted by the parties, and the entire record in the case. The Board in a Supplemental Decision and Order3 dated April 20, 1966, adhered to its dismissal of the complaint. On March 3, 1967, the Court of Appeals for the District of Columbia held, contrary to the Board, that Respondent violated its duty to bargain with the Union by its unilateral action in accomplishing the change in the method of shipping cars through a contracting out to the extent that "the change had an adverse impact on the bargaining unit since it diminished by six the whole number of jobs per- formed by its members."4 Accordingly, the court reversed the Board's Order dismissing the com- plaint. Thereafter, Respondent filed with the Supreme Court of the United States a petition for certiorari which was denied on October 9, 1967.5 On November 14, 1967, the Board advised the parties of the opportunity to submit a brief or a memorandum stating their position with respect to the entry of an appropriate remedial order in ac- cordance with the decision of the court of appeals. We have considered the memoranda submitted by all the parties and make the following findings: CONCLUSIONS OF LAW 1. Respondent is engaged in 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. All employees covered by the national collec- tive-bargaining agreement between the Union and Respondent, dated September 20, 1961, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(b) of the Act. 5. By unilaterally changing the method of turn- ing completed cars over to Pacific Motor Trucking Company on June 17, 1963, and thereby adversely affecting the bargaining unit through the loss of six jobs - those of the six department 66 employees who, prior to the change, drove cars from the end of the assembly line to numbered spots in the OK lot - Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, we shall order that it cease and desist therefrom, and from like or related con- duct, and that it take certain affirmative action to ef- fectuate the policies of the Act. In fashioning an appropriate remedy, we shall in accordance with established policy adapt it to the particular situation that calls for redress.6 We are of the opinion that effectuation of the policies of the Act requires that Respondent be directed to remedy the violation found by offering to bargain about the effects of the change in the method of shipping cars on the six department 66 employees who, prior to June 17, 1963, drove cars from the end of the as- sembly line to numbered spots in Respondent's OK lot. However, as the methods change was unlawful only insofar as it affected the above-mentioned 6 of the 18 drivers in department 66, we do not deem it essential in this case to the molding of a meaningful 149 NLRB 396 2 International Union, United Automobile , Aerospace & Agricultural Implement Workers of America (UAW) V. N.L.R B., 60 LRRM 2283 (C.A.D.C, 1965). 3 158 NLRB 229 4 381 F 2d 265 (C.A.D C) 5 389 U S. 875. ' Winn-Dixie Stores , 147 NLRB 788. 169 NLRB No. 119 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedy to require restoration of the status quo ante or bargaining on that subject. Effectuation of the Act's policies further requires that the employees whose statutory rights were vio- lated by reason of Respondent's unilateral action, and who have suffered loss in consequence thereof, be reimbursed for such losses until such time as Respondent remedies its violation in the manner herein ordered. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that Respondent, General Motors Corporation, Buick-Oldsmobile-Pontiac Assembly Division, South Gate, California, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representative of Respond- ent's employees in the appropriate unit. (b) Unilaterally changing any terms and condi- tions of employment of unit employees without prior consultation and bargaining with the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exer- cise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted actihities for the purposes of collective bargaining or other mu- tual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activi- ties, except insofar as such right may be affected by a contract, if validly made in accordance with Sec- tion 8(a)(3) of the Act, under which membership in a labor organization is a condition of employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to, and, upon request, bargain collec- tively with the Union concerning the effects of the change in the method of turning completed cars over to Pacific Motor Trucking Company on the six department 66 employees who, prior to June 17, 1963, drove cars from the end of the assembly line to numbered spots in the OK lot. (b) Make the foregoing six employees whole for any loss of pay suffered as a result of the change in method. The liability for such backpay shall cease upon the occurrence of any of the following condi- tions: (1) reaching mutual agreement with the Union relating to the subject about which Respond- ent is required to bargain; (2) bargaining to a bona fide impasse; (3) failure of the Union to commence negotiations within 5 days of the receipt of Respond- ent's notice of its desire to bargain with the Union; or (4) failure of the Union to bargain thereafter in good faith. Of course, if Respondent decides to reinstate the six employees to their former jobs at their old rate of pay plus any increments granted to unit employees since June 17, 1963, its liability will cease as of the date of reinstatement. Backpay will be based upon the earnings which the affected em- ployees would normally have received, absent the change, less any net interim earnings, and shall be computed on a quarterly basis with 6-percent in- terest per annum thereon, in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its South Gate, California, plant, co- pies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by an official representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. Y In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found in accordance with the decision of the Court of Appeals for the District of Columbia that we violated the law and has ordered us to post this notice and to keep the promises that we make in this notice. WE WILL NOT refuse to bargain collectively with the Union as the exclusive representative of the Company's employees in the appropriate unit. WE WILL NOT change any terms and condi- tions of employees in the bargaining unit GENERAL MOTORS CORPORATION without first consulting and bargaining with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act. As the Board found in accordance with the Court's decision that we violated the law when we brought about the loss of the jobs of six de- partment 66 employees by changing the method of turning completed cars over to Pacific Motor Trucking Company, WE WILL offer to bargain with the Union concerning the effects of this change on these employees. WE WILL also pay the foregoing six em- ployees for any loss of earnings caused when they were removed from the job of driving cars from the end of the assembly line to numbered spots in our lot as a result of the change in the method of shipping cars. 829 GENERAL MOTORS CORPORATION BUICK- OLDSMOBILE-PONTIAC ASSEMBLY DIVISION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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 Regional Office, 849 South Broadway, Los Angeles, Califor- nia 90014, Telephone 688-5204.