Valley Mould and Iron Co.

National Labor Relations Board - Board Decisions

Nov 29, 1976

226 N.L.R.B. 1211 (N.L.R.B. 1976)

VALLEY MOULD AND IRON CO. 1211
Valley Mould and Iron Company and Office and Pro-
fessional Employees International Union , Local No.
33, AFL-CIO. Case 8-CA-9477
November 29, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On June 10, 1976, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief. The Respondent filed
an answering brief to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
' While adopting the Decision of the Administrative Law Judge. Mem-
bers Fanning and Jenkins do not rely on, nor subscribe to, the observation
made in in I of that Decision that, had the Administrative Law Judge
allowed the General Counsel to amend the complaint at the hearing to
allege an additional violation of Sec 8(a)(5) of the Act, the Board would
have deferred the issue raised by such allegation to arbitration
Chairman Murphy notes that the issue of deferral to arbitration is not
before the Board and hence she does not rely or pass on the aforementioned
observation of the Administrative Law Judge in adopting his Decision
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge- This case
was heard in Youngstown, Ohio, on May 13, 1976, upon an
original charge filed on September 22, 1975, and a com-
plaint issued on January 22, 1976, alleging that Respon-
dent violated Section 8(a)(5) and (1) of the Act by, during
negotiations for a new contract, withholding and conceal-
ing from the Union "information concerning its intention
to eliminate six positions which were held by employees
who were members of the unit... ." Respondent's duly
filed answer denied that any unfair labor practices were
committed
Immediately prior to close of the hearing, but after pre-
sentation by the parties of all available evidence, the par-
ties were informed that, on the total record, I concluded
that "the evidence does not show that at any time prior to
May 7, . . .1975, the Respondent decided to eliminate the
engineering department or to effect any specific layoffs in
the unit or units represented by the Charging Party under a
plan which was sufficiently concrete as to warrant disclo-
sure to the Union " Accordingly, the parties were advised
that dismissal of the complaint in its entirety would be
recommended, with a formal decision to follow.
Accordingly, upon the entire record in this proceeding,
including my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Connecticut corporation, with a plant
located in Hubbard, Ohio, from which it is engaged in the
manufacture of ingot moulds. Annually, in the course of
said operations, Respondent ships goods valued in excess
of $100,000 from said facility, to points located in States of
the United States other than the State of Ohio.
The complaint alleges, the answer admits, and I find that
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Office and Professional Employees International Union,
Local No. 33, AFL-CIO, is, and has been at all times ma-
terial , a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issues presented in this proceeding are whether, in
the course of collective-bargaining negotiations, Respon-
dent arrived at an intention to eliminate jobs permanently
and to effect layoffs in the appropriate bargaining units,
and if so, whether Respondent violated Section 8(a)(5) and
(1) of the Act by concealing such intention from the Union
until after agreement on a contract had been reached.
In recommending dismissal of the complaint, my conclu-
sion is based solely on the inadequacy of the General
Counsel's proof in support of the claim that, prior to the
successful culmination of negotiations, Respondent had ar-
rived at an intention to eliminate the jobs in question here.
B. Background
Prior to August 1, 1974, there was no history of collec-
226 NLRB No. 195
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining for Respondent's professional, office cleri-
cal, and technical employees at its plant in Hubbard, Ohio
On that date, the Board conducted elections in separate
appropriate units, one consisting of professional employees
at that plant, and the second involving the office clericals
and technical employees at the Hubbard plant. As a result
of the election, the Union was designated as majority rep-
resentative and on August 19, 1974, it was certified by the
Board as exclusive statutory bargaining agent in the sepa-
rate units.
Pursuant to said certification, collective-bargaining ne-
gotiations commenced on October 23, 1974, and concluded
on April 7, 1975, with the parties reaching a informal
agreement after some 10 formal negotiating sessions. That
agreement was dated April 24, 1975, but apparently it was
not formally executed until May 7, 1975. During the course
of negotiations, the Union and Respondent agreed to com-
bine the separate units into a single unit for the purposes of
contract negotiation and administration.
On May 31, 1975, the Union and employees affected
were notified by Respondent, at the close of work that day,
that six positions would be permanently eliminated, includ-
ing the plant engineering department, consisting of two
plant engineers, one detailer draftsman, and one detailer
draftsman trainee; as well as an industrial engineering
technician and a senior clerk typist assigned to the pur-
chasing and traffic departments. In consequence of Re-
spondent's action, employees Spess and Hartman were laid
off. Three others (Gombos, Ferry, and Eckenrode) exer-
cised bumping rights under article 4, section 2(b) of the
recently executed collective-bargaining agreement and
continued in Respondent's employ in lower ratedjobs. The
sixth employee affected, Hammond, declined to exercise
his bumping rights and he too was therefore laid off. These
personnel changes, resulting from the job eliminations,
were implemented by Respondent within the framework of
the collective-bargaining agreement.'
i The charge filed by the Union on September 22, 1975, alleged that the
Employer's conduct was discriminatorily motivated and violative of Sec
8(a)(3), and further included an 8(a)(5) allegation which was drafted in the
broadest, most comprehensive language Despite the breadth of the charge,
the complaint, as issued on January 22, 1976, did not include an allegation
that Respondent violated Sec 8(a)(5) by unilaterally effecting the job elimi-
nations , without bargaining or consultation with the Union Indeed, in a
letter to the Charging Party dated January 21, 1976, the Regional Director
for Region 8 advised that investigation of the unfair labor practice charges
warranted dismissal of the 8(a)(3) allegation and the 8(a)(5) allegations
based on an alleged refusal to provide information, while indicating that a
complaint would issue solely on the basis of the Employer's withholding its
intention to eliminate the positions in question in violation of Sec 8(a)(5)
Though from the outset of its involvement in this proceeding the General
Counsel was fully apprised of the availability of this theory, no effort was
made, prior to the opening of the hearing, to include any allegation that the
unilateral elimination of jobs, itself, constituted an independent violation of
Sec 8(a)(5) Indeed, it was not until after the General Counsel called his
first witness , following the disposition of a variety of preliminary matters,
including Respondent's initial motion to dismiss the complaint, that the
General Counsel first sought an amendment adding such an issue to this
proceeding While not unmindful of the Board's liberal policy with respect
to amendment of the complaint at the hearing, the request in this instance
was denied In doing so, it was my opinion that the General Counsel was
estopped from reshaping his case at that late juncture The relevance of a
unilateral job elimination theory to the basic fact pattern from which this
case emerges is too obvious to lightly excuse the General Counsel's inaction
as one of inadvertence The leeway given the General Counsel under the
C. Concluding Findings
During the course of the collective-bargaining negotia-
tions, Respondent at no time expressed an intention to ef-
fectjob terminations or layoffs in the future, nor was infor-
mation as to the Company's intentions in this respect ever
solicited by the Union Parenthetically, however, it is noted
that economic conditions, generally, and layoffs among
Respondent's production workers which preceded the May
7, 1975, execution of a contract, suggested that layoffs in
the combined professional and clerical-technical unit were
a distinct possibility.
Consistent with the General Counsel's position, "the
Board and the Courts have held on numerous occasions
that an employer violates Section 8(a)(5) when it conceals
from the bargaining representative of its employees its in-
tentions with respect to its future operations." 2 More spe-
cifically, there can be no question as to the justification for
Board intervention in circumstances where an employer
has concealed an intention to take drastic, unforeseeable
action, in circumstances where such concealment occurred
in circumstances preventing a union from taking steps
through negotiation and economic action to protect repre-
sented employees 3
Here, however, though the action of Respondent on
May 31 did produce permanent elimination of some job
classifications, the cutback involved normal and foresee-
able cost-cutting efforts on the part of management, in-
volving a significant, though small segment of the unit,
which was of the type that could, occurring as it did during
a period of economic stress, reasonably have been expected
by the exclusive representative. It is difficult to conclude
that the Union was handicapped significantly by any non-
disclosure in this regard, when one considers the extensive
protection negotiated by the Union on behalf of those to
sustain job dislocation. These benefits included seniority
protection, bumping rights, severance pay, and supplemen-
tal unemployment benefit pay Considering the nature of
the Employer's May 31 action, against the substantive
gains by the Union in the course of negotiations, I would
be unwilling to conclude, even assuming that Respondent
Board's position, with respect to posthearing amendments to a complaint, is
based upon sound considerations which ought not be construed as a license
for "sandbagging," so as to lull the party charged into a sense of belief that
in coming to a hearing there would be no cause to defend certain aspects of
its conduct, of which the General Counsel had full and longstanding knowl-
edge, yet by inaction prior to the hearing had indicated tacitly that no
violation was involved
I note, however, that this ruling may not have been prejudicial to the
General Counsel For, if my findings on the merits are affirmed, the issue
sought to be added by amendment, when considered in light of the broad
management prerogatives clause appearing in art 6 of the agreement, and
other provisions thereof, which provide protection to employees in the event
of a layoff, would raise issues of contract interpretation which the Board, in
accordance with Collyer Insulated Wire Co, 192 NLRB 837 (1971), would
defer to arbitration
z Royal Plating and Polishing Co, Inc, 160 NLRB 990, 994 (1966)
In Royal Plating and Polishing Co, Inc, supra, the concealment related
to plans to close an entire plant In Standard Handkerchief Co, inc, 151
NLRB 15, (1965), the concealment related to the contemplated shutdown
and removal of a plant to a new location Quality Coal Corporation 139
NLRB 492, 494 (1962), enfd in pertinent part 319 F 2d 428 (C.A. 7, 1963),
enfd in full sub nom N L R B v The International Union, Progressive Mine
Workers of America, 375 U S 396 (1964), involved concealment of the sale
of a mining operation
VALLEY MOULD AND IRON CO 1213
was possessed of a fixed plan to effect job eliminations,
that Respondent acquired any substantive advantages
therefrom, or that the Union was handicapped by any con-
cealment thereof to protect the employees' interests during
negotiations.
In any event, the General Counsel's evidence that the
Company during negotiations had an intention to effect the
May 31 personnel changes is not substantiated by a pre-
ponderance of the evidence. The General Counsel's claim
in this regard is based solely on the testimony of Audrey
Bigony, a payroll clerk employed by Respondent, who
serves as a union steward and was a member of the
Union's negotiating committee. According to her testi-
mony, a grievance meeting was held on July 15, 1975, con-
cerning the job of Mrs. Ferry, one of the six employees
adversely affected by Respondent's action of May 31. That
meeting was attended, on behalf of the Union, by all four
union stewards and George Porcaro, a representative of the
International Union from New York. On behalf of the
company Mr. Landy, Respondent's director of labor rela-
tions, and Mr. Deichler, the Company's controller, were
present. During the course of that meeting, according to
the testimony of Bigony, Porcaro questioned the company
representatives concerning the elimination of jobs on May
31. Bigony describes what went on as follows.
Mr. Porcaro asked them if these jobs were being done,
who was doing them, was there some reason for them
eliminating these jobs and did they just decide on that
date at the end of May that they were going to elimi-
nate these jobs. And Mr. Landy at that time said that
it had been in the wind since January of 1976. But at
that time Mr. Landy said he was not prepared to an-
swer Mr. Porcaro's questions
The foregoing is the sole evidence on which the General
Counsel urges a finding that Respondent prior to May 7,
1975, had formed an "intention to eliminate six positions."
In my opinion this proof is insufficient to substantiate the
General Counsel's claim.
It is true that the Board, prusuant to Section 8(d) and
8(a)(5) of the Act, is charged with the responsibility for
policing the mechanics of collective bargaining. However,
in carrying out that mission, caution must be exercised to
assure that governmental intervention has not been in-
voked by one side or the other under circumstances which
imperil the independence of this statutorily protected
means for establishing the substantive framework under
which employees provide their labor. In a case such as this,
where the negotiating history and the final contract evi-
dence open discussion of the layoff issue generally, during
periods when the parties on both sides of the table were
mindful of the adverse economic conditions which provid-
ed the background for their negotiations, and where the
final agreement reached included provisions attempting to
define management rights to implement layoffs on the one
hand, and provisions cushioning the impact of job disloca-
tion among employees on the other, close scrutiny of the
facts which form the predicate for Board intervention is
necessary to avoid disturbance of concessions knowingly
made, and, thereby to preserve a system of free collective
bargaining worthy of public confidence.
Here the General Counsel, in seeking a remedy, which
might well contravene accomodations made at the bargain-
ing table, contends that a per se violation arose upon the
isolated and ambiguous testimony that certain layoffs had
been "in the wind" since January 1975, a time when negoti-
ations were then in progress. In my opinion, that simply is
too slender a reed to bear the weight of a statutory remedy.
Any inferences to be drawn from this testimony merits full
consideration of the implications that might arise there-
from. Would it be salutary or inimical, to the bargaining
process, for decisional precedent to require employers offi-
ciously to convey, during contract negotiations, every
thought or possibility mentioned in management discus-
sions concerning cost-cutting efforts to meet an economic
downturn, regardless of how speculative the matters under
consideration might be, or whether they would ever be im-
plemented? In my opinion, to impose such a duty would be
counterproductive to the policies of the Act. It would en-
courage the injection of emotion-laden issues, at times
when they are highly conjectural and would only serve to
prolong negotiations, possibly engendering ill will needless-
ly, and all for reasons that may never come to pass. The
testimony of Audrey Bigony proves no more than that
Landy might have been a party to management delibera-
tions concerning the need for cost cutting in the units rep-
resented by the Charging Party. It does not rise to a level
warranting a conclusion that Respondent had reached a
firm consensus or plan as to how that objective would be
achieved.
Accordingly, I find that the General Counsel has not
established by a preponderance of the evidence that prior
to May 7, 1975, the Respondent had formed an intention
to eliminate the six classifications involved here, under cir-
cumstances which gave rise to a duty of disclosure. There-
fore, I shall recommend that the 8(a)(5) and (1) complaint
herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Valley Mould and Iron Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Office and Professional Employees International
Union, Local No. 33, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not violated the Act in any manner.
On the foregoing findings of fact, conclusions of law and
the entire record in this proceeding, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER4
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
in the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions and recommended Order herein shall, as provided in Sec
10248 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes