Ead Motors Eastern Air Devices, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1060 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 93
1060
Ead Motors Eastern Air Devices, Inc. and IUE–CWA
Local 81243, AFL–CIO. Cases 1–CA–40651, 1–
CA–41036, and 1–CA–41172
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 15, 2004, Administrative Law Judge Martin J.
Linksy issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Union filed briefs in support of the
judge’s decision. The General Counsel and the Union
also filed cross-exceptions and supporting briefs. The
Respondent filed an answering brief. 1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to

1 There are no exceptions to the following findings of the judge: (1)
the Respondent did not violate Sec. 8(a)(5) and (1) when it laid off 17
employees on September 23, 2002; (2) the Respondent did not violate
Sec. 8(a)(5) and (1) when it, on October 23, 2002, eliminated the prac-
tice of allowing union officers and stewards to take time off from
scheduled work to attend union business meetings; (3) the Respondent
violated Sec. 8(a)(5) and (1) when it unlawfully assigned unit work to
nonunit employee Cindy Chapman in January 2003; (4) the Respondent
did not violate Sec. 8(a)(5) and (1) when it subcontracted unit work to
an outside contractor in February and in March 2003; (5) the Respon-
dent did not violate Sec. 8(a)(5) and (1) when it notified the Union, on
January 29, 2003, that future information requests should be made in
writing; (6) the Respondent violated Sec. 8(a)(5) and (1) when it failed
to provide information requested by the Union on February 28, 2003;
(6) the Respondent violated Sec. 8(a)(5) and (1) when it withdrew
recognition from the Union on June 16, 2003; (7) the Respondent did
not violate Sec. 8(a)(5) and (1) when it assigned unit work to Chapman
in June 2003; and (8) the Respondent violated Sec. 8(a)(2) and (1)
when it dominated and assisted the “Have Your Say” committee.
Moreover, for the reasons stated in his decision, we adopt the fol-
lowing findings of the judge: (1) the Respondent violated Sec. 8(a)(5)
and (1) when it refused to provide information requested by the Union
on September 14 and October 24, 2002; (2) the Respondent did not
violate Sec. 8(a)(5) and (1) when it downgraded 12 employees on Sep-
tember 25, 2002; (3) the Respondent violated Sec. 8(a)(5) and (1) when
it posted openings for the position of quality assistant A in the receiving
department; (4) the Respondent did not violate Sec. 8(a)(5) and (1)
when it recalled Linda Doane and Nancy Kane to PM Stepper Cell
machine operator positions at labor grade 2 on October 24, 2002; (5)
the Respondent did not violate Sec. 8(a)(5) and (1) when it did not
recall Jennie Smith on December 9, 2002, to the position of mainte-
nance assistant; (6) the Respondent violated Sec. 8(a)(5) and (1) when
it, on or about February 10, 2003, placed employee Marie Hay into a
trainee position and paid her a lower wage rate than she was entitled to
receive; (7) the Respondent violated Sec. 8(a)(5) and (1) when it unlaw-
fully transferred employee Melissa Thornton to a position and paid her
at a lower wage rate than she was entitled to receive; and (8) the Re-
spondent violated Sec. 8(a)(5) and (1) when it, in February 2003,
placed employee Michael Jackson in the position of material handler
and paid him at a lower wage rate.
affirm the judge’s rulings, findings, and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.2
I. INTRODUCTION
This case primarily concerns the Respondent’s decla-
ration of impasse following collective-bargaining nego-
tiations and its unilateral actions subsequent to that dec-
laration. The judge found that the Respondent prema-
turely declared impasse; consequently, he found that the
Respondent was not privileged to implement the terms of
its final offer to the Union, and that many of the Respon-
dent’s subsequent unilateral actions were also unlawful.
For the reasons set forth below, we agree with the
judge’s conclusion that the Respondent unlawfully ended
negotiations before reaching a valid impasse. With mi-
nor exceptions, discussed more fully below, we also
agree with the remainder of the judge’s findings.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Impasse and Implementation
1. Factual background
The Respondent manufactures electric motors and has
had a collective-bargaining relationship with the Union
for close to 60 years. The parties’ historical bargaining
practice involved intensive negotiations over a limited
number of lengthy bargaining sessions. This practice
would culminate in the Respondent’s presentation of a
final proposal immediately prior to the contract’s expira-
tion, which the Union would then present to its member-
ship for a ratification vote. Following this practice, the
parties entered into a number of collective-bargaining
agreements over the years, the most recent of which was
effective, by its terms, from September 16, 1999, to Sep-
tember 15, 2002.3
For the 2002 negotiations, the parties held seven ses-
sions, totaling approximately 73 hours, on September 5,
10, 13, 14, 15, 16, and 17. Attorney Peter Kraft served
as the Respondent’s chief negotiator; Union Representa-
tive Eddie Oakley served in that capacity for the Union.
At the September 5 session, the Respondent’s presi-
dent, Dominic More, made a speech about the state of the
Company, explaining that it needed concessions and
flexibility from the Union in order to survive. He said
that the Company found itself in this situation because of
economic reasons, e.g., work going overseas, and not
because of any fault of the Union; nevertheless, he ex-

2 We have modified the recommended Order to more closely reflect
the violations found, and in accordance with our decision in Ferguson
Electric Co., 335 NLRB 142 (2001).
3 During the 2002 negotiations, the parties agreed to extend the
agreement to September 17.
Unless indicated otherwise, all dates are in 2002.
EAD MOTORS EASTERN AIR DEVICES 1061
plained that, due to the tough economic times, critical
changes were needed. Oakley responded that, although it
appeared that the parties’ proposals would be quite a way
apart, everybody understood that things needed to be
done to keep the shop open.
At this first session, the parties agreed to discuss non-
economic issues before negotiating economic ones.
They began by discussing the Respondent’s matrix pro-
posal, which was a wholesale reconfiguration of the ex-
tant job classification system. In its initial form, the ma-
trix “propose[d] to change job classifications, job duties,
functions, required skills and many of the particulars of
the existing job classification structure,” with specific
language to be proposed later. It also would have limited
the Union’s right to grieve the creation of new positions
during the contract term: “[t]he only grievable issue shall
be whether the rate set by [the Respondent] is arbitrary
and capricious.”4
During the September 10, 13, and 14 bargaining ses-
sions, the parties discussed their noneconomic proposals,
placing particular emphasis on the matrix. On Septem-
ber 10, the Union stated that it could agree to the arbitra-
tion portion of the matrix proposal if the Respondent
would remove the “arbitrary and capricious” language.
On September 13, Oakley told the Respondent that the
matrix “was the hardest thing to sell because people in
the shop did not want their job descriptions to go away.”
On September 14, Oakley told the Respondent that the
Union was not in total disagreement with the concept of
the Matrix, and that it was still open for discussion.
At the close of the September 14 session, the Respon-
dent presented and explained its economic proposals.
Significantly, the Respondent sought a 3-year wage
freeze, the substitution of a 401(k) plan for the existing
pension plan, and a new employee health insurance plan.
The Respondent’s proposals also covered holidays, vaca-
tions, overtime, seniority, jury duty, and vending ma-
chine earnings.
The parties next met on September 15, the date the
contract was to expire. The Union opened the session by
presenting its economic proposals. Among other things,
the Union sought a 6-percent annual wage increase, a 5-
cent annual increase in company contributions to the
existing pension fund, increased insurance benefits, and

4 Coupled with the proposal was “Exhibit A,” which provided job
functions (i.e., required skills for different job names), progression
requirements (i.e., which skills were needed, and at what level of profi-
ciency, to progress through the different pay grades within each job
name), and skill matrixes (i.e., tables used to indicate employee profi-
ciency at their job functions) for five different job names. Each skill
matrix identified by name the employees who would be assigned to the
new classification and specified the employee’s starting pay grade.
additional holidays and vacation. The Union then re-
jected the Respondent’s economic proposals, with Oak-
ley explaining that the Union was trying to be flexible,
but that the matrix, which was a tough sell alone, was
made more difficult coupled with the Respondent’s eco-
nomic proposals. He told the Respondent’s negotiating
committee that if it was close to its final offer there was
no way the Union could ratify it.
Kraft reiterated the Respondent’s explanation for the
changes it sought. He told the union committee that the
Respondent was not seeking a 3-year wage freeze,5 and
asked the Union to be optimistic and understand that the
Company’s proposals had many advantages. The parties
next went over noneconomic issues, with each side re-
sponding to the other’s proposals. After those responses,
Kraft stated that the parties were at a standstill on wages
and that the Company’s wage proposal would not
change. Thereafter, the conversation returned to none-
conomics, including the matrix. The Respondent pre-
sented its first revision to the matrix proposal.6 After
reviewing this proposal, the parties continued to discuss
the matrix and other noneconomic issues.
In the late afternoon of September 15, Kraft asked
Oakley whether “it [made] sense that [they] extended the
contract and [got] a federal mediator in.” Oakley replied
that they should seek a mediator’s assistance because
there was so much left on the table that they would never
get through it. Kraft stated that it was just an idea, and
that he had to “check and see if [he could] do that.”
Once he received authority, the parties extended the con-
tract until 7 p.m. on September 17.7
On September 16, a mediator was brought in to assist
the negotiations. The parties again occupied themselves
with the matrix and other noneconomic issues. A union
negotiator stated that the matrix was not a perfect sys-

5 Despite this assurance, the Respondent did not revise its wage pro-
posal until its final offer, in which it proposed an approximately 18-
month wage freeze.
6 The revised proposal provided (1) that all employees would ini-
tially be assigned the labor grade set forth in the proposed “Appendix
A,” (2) that progression evaluations would take place semiannually, (3)
that determination of proficiency levels would be made by a review
team, the composition of which was also contained in the revised pro-
posal, and (4) that employees who requested training on a particular
skill would be placed in “trainee” status “on a seniority basis.”
7 It is disputed what Kraft said after receiving authority to extend the
contract. Oakley testified that Kraft said “that his authority would end
—his authority to negotiate would end on September 17th at 7:00 p.m.”
The Union’s bargaining notes include Kraft’s remark as, “[M]y author-
ity limited to to [sic] end contract at [7 p.m.] Tues. night.” Kraft denied
having made the statement attributed to him by Oakley, and testified
that he said, “I have the authority to extend the contract to seven
o’clock Tuesday [9/17] night.” The judge did not make a finding re-
garding this disputed fact. We find that the weight of the evidence,
including the union bargaining notes, supports Kraft’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1062
tem; he asked if it would be open for future discussion if
the Union would tentatively agree to the proposal. The
Respondent said yes and acknowledged that the proposal
required modifications. Oakley suggested quarterly meet-
ings between the parties to continue developing the ma-
trix.
On September 17, the parties continued to discuss the
matrix. In the morning, they discussed the timeline for
completion of the matrix, and a union proposal for a
“transition agreement.” After some discussion, the par-
ties drafted a tentative transition agreement that called
for regular meetings to “discuss the strengths and weak-
nesses of the new job classification/job title structure.”
The transition agreement also provided that, “[t]o the
extent a job title is not currently included in a progres-
sion matrix, the employees shall retain their current job
title until the Skill Matrix for their position is com-
pleted.”8
After discussing the transition agreement, the parties
revisited other noneconomic proposals, and both sides
made several quid pro quo type proposals in an attempt
to reach agreement. While the Respondent was going
through its noneconomic proposals, Oakley interrupted
to express concern that they were not “going to make it,”
i.e., reach agreement before the end of the day. He said
that the Respondent had not yet responded to the Union’s
initial economic proposals, which were already “cut . . .
to the bone.” Oakley then made a package proposal on
noneconomic issues, stating that the Union would accept
the matrix proposal subject to further negotiation as pro-
vided for in the transition agreement if the Respondent
would withdraw certain other noneconomic proposals.
The parties then discussed several different options for
the matrix that had not been discussed before, like trying
the matrix as a pilot program with a reopener after 6
months. The Union reiterated its package proposal.
After a caucus, the Respondent rejected the package
proposal, saying that it was not constructive to do pack-
age deals and that they needed to shift to economic is-
sues. The Respondent presented its insurance proposal,
then stated that it refused all of the Union’s economic
proposals. At 3:45 p.m., the Respondent presented a new
economic proposal, which showed some movement from
its initial positions on insurance benefits and overtime.
Kraft told the Union that it should look at the proposals
and let the Respondent know “how much [the Union] can
shave off [its] economic proposals.” Immediately after
doing so, Kraft gave the Union until 5 or 6 p.m to re-
spond and stated that the Respondent was going to work

8 The matrix as implemented had nine different skill matrixes, i.e.,
four more than were prepared for discussion during negotiations.
on its final proposal. At 5:50 p.m., Kraft presented the
Respondent’s final economic proposal, which, among
other changes, reduced the sought-after 3-year wage
freeze to approximately 18 months. Immediately there-
after, the Respondent presented its final noneconomic
proposal, which included a revised matrix proposal that
specifically incorporated the terms of the transition
agreement. After reviewing the final proposals, the Un-
ion told the Respondent’s committee that it could not
recommend ratification.9
Nevertheless, the Union held a ratification meeting
immediately after the September 17 session ended. Oak-
ley informed the membership that the Union had a final
offer from the Respondent, which had decided to end
bargaining at 7 p.m., but that the committee was not rec-
ommending it. Oakley told employees that the commit-
tee wanted to go back and negotiate more.10
The membership rejected the final proposal by a 68-to-
7 margin. Union President Mike Jackson called Com-
pany President More and informed him of the vote to
reject the contract. More asked whether the employees
were going to strike, and Jackson told him that they had
not yet decided how to proceed. The employees decided
not to strike, choosing instead to return to work and con-
tinue bargaining.
On September 19, Kraft sent a letter to the Union in-
forming it that “the parties are at a bargaining impasse.”
He continued, “[i]n all of my bargaining experiences and
history with EADmotors/IUW–CWA Local 81243, the
parties have treated the end of the contract term as the
clear conclusion of the bargaining process. Our recent
negotiations is [sic] no different. The Company did not
tender its final offer with the notion that further bargain-
ing would be fruitful or otherwise yield meaningful com-
promises or concessions in the immediate wake of a
membership vote opposed to ratification.” He concluded
by stating that the Respondent intended to implement
some features of its final proposal in the “near term.”
On September 25, the Union denied that the parties
were at impasse, and stated that “rejection by the mem-
bership of your proposal does not terminate bargaining

9 At this point in the negotiations, the parties had successfully con-
cluded agreement on several of their initial proposals. For example,
they either had reached tentative agreement on or had withdrawn pro-
posals concerning the creation of a development cell, union security, no
strike/no lockout, and vending machine earnings, and certain of the
various proposals covering vacations, seniority, management responsi-
bilities, grievance and arbitration procedures, and temporary employ-
ees.
10 Employee Dave Horne testified that on September 17, during a
discussion after the bargaining session ended, Oakley said that the
parties were at “impasse.” Oakley conceded that he may have made
this statement.
EAD MOTORS EASTERN AIR DEVICES 1063
practically or legally.” It also requested continued bar-
gaining. On October 22, the Respondent issued a “Book-
let” implementing much of its final proposal. The
“Booklet” included some terms and conditions that were
never discussed during negotiations, such as the Devel-
opment Cell description and job-bumping rights. In No-
vember, the Respondent issued a “User’s Manual” im-
plementing the matrix. As the judge recognized in his
decision, the “User’s Manual” differed from the Respon-
dent’s final proposal in that it covered four new job clas-
sifications that had not been presented to the Union dur-
ing negotiations.
2. Analysis
The judge found that the Respondent violated Section
8(a)(5) and (1) “when it prematurely declared impasse
and began implementing its last best offer to the Union.”
The judge based this finding on his understanding that
the Respondent’s matrix proposal–the primary concern
throughout negotiations–was incomplete, “a work in pro-
gress.” Because the Union was not presented with a
complete proposal on the matrix, the judge found that the
Respondent could not lawfully declare impasse. While
we agree with the judge that the Respondent violated
Section 8(a)(5) and (1) when it prematurely declared
impasse and implemented new terms and conditions of
employment, we do not agree with his rationale.11 In-
stead, we rely on the following analysis.
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
enfd. sub. nom. Television Artists, AFTRA v. NLRB, 395
F.2d 622 (D.C. Cir. 1968), the Board defined an impasse
as a situation where “good-faith negotiations have ex-
hausted the prospects of concluding an agreement.” See

11 The judge relied on I.T.T. Rayonier, Inc., 305 NLRB 445 (1991),
in determining that the Respondent’s matrix proposal was incomplete.
In our opinion, I.T.T. Rayonier does not support the judge’s finding. In
that case, the Board recognized that “there is nothing improper in an
employer’s commencing negotiations with a broad outline of proposals
that are nonspecific and attempting to obtain through negotiations the
Union’s cooperation in developing contract language to resolve a spe-
cific concern.” Id. at 446 fn. 6. It went on to explain that it is only
when the union is unwilling to participate in that form of negotiation
that the company must, “to fulfill its bargaining obligations, put ‘meat
on the bone.’” Id. Here, the Respondent’s matrix proposal began in
conceptual form. Through the course of negotiations, most of the spe-
cifics of how the matrix would operate and affect unit employees were
discussed and developed by both parties and integrated into the Re-
spondent’s revised proposals. Additionally, the transition agreement,
which was expressly incorporated by reference into the Respondent’s
final offer, provided for creation of job matrixes from the missing job
classifications and continuing discussion about the matrix itself. In-
deed, the Union made a package proposal that would have included the
matrix proposal in the same form that the judge found lacking. Under
these circumstances, the matrix proposal cannot be characterized as not
fully formulated such that the parties could not effectively bargain over
it.
also Newcor Bay City Division, 345 NLRB 1229, 1238
(2005). This principle was restated by the Board in Hi-
Way Billboards, Inc., 206 NLRB 22, 23 (1973), enf. de-
nied on other grounds 500 F.2d 181 (5th Cir. 1974), as
follows:
A genuine impasse in negotiations is synonymous with
a deadlock: the parties have discussed a subject or sub-
jects in good faith, and, despite their best efforts to
achieve agreement with respect to such, neither party is
willing to move from its respective position. [Footnote
omitted.]
The burden of demonstrating the existence of impasse
rests on the party claiming impasse. Serramonte
Oldsmobile, Inc., 318 NLRB 80, 97 (1995), enfd. in pert.
part 86 F.3d 227 (D.C. Cir. 1996). The question of
whether a valid impasse exists is a “matter of judgment”
and among the relevant factors are “[t]he bargaining his-
tory, the good faith of the parties in negotiations, the
length of the negotiations, the importance of the issue or
issues as to which there is disagreement, [and] the con-
temporaneous understanding of the parties as to the state
of negotiations.” Taft Broadcasting Co., supra at 478.
We find that the Respondent has not met its burden to
establish a valid impasse. The Respondent did not in-
form the Union, or argue to the Board, that impasse was
reached over any specific issue. Rather, it appears that
the Respondent determined that the parties were at im-
passe on the whole of its final proposal, an impasse pur-
portedly created when the Union failed to ratify that pro-
posal. This position appears to be based, at least in part,
on the Respondent’s understanding that, under the par-
ties’ bargaining history, it was entitled to conclude nego-
tiations when the contract expired. We disagree.
a. The parties’ bargaining history does not establish
that the parties were at impasse
on September 17, 2002
The record supports the Respondent’s assertion that
the parties had always treated the expiration of the con-
tract as the point at which the Union took a ratification
vote on the Respondent’s proposed terms. However, the
fact that there is a ratification vote does not itself show
that the parties are at impasse. More particularly, if the
vote is to approve the proposal, there is a contract. If the
vote is to reject it, there must be more bargaining. A
separate issue is whether more bargaining would be futile
because the parties are at impasse. But that issue turns
on the factors noted above, not on the mere fact of a
negative ratification vote. The Respondent provided no
evidence, beyond the self-serving terms of its letter de-
claring impasse, that bargaining would have been futile
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1064
after September 17, the day that the contract expired.
See, e.g., Newcor Bay City Division, supra, slip op. at
11–12 (rejecting argument that contract expiration date
ended bargaining obligation where company provided no
evidence that, when it set that deadline, it had a basis for
believing that bargaining would become futile after that
time). Rather, the evidence showed only that prior nego-
tiations had ended in a positive ratification vote, some-
times against the union committee’s recommendation.
There was no evidence that in prior bargaining the parties
had attempted, much less been unable, to reach agree-
ment after a failure to ratify the Respondent’s final offer.
b. The arbitrary deadline did not allow sufficient time for
meaningful bargaining over the Respondent’s
proposed changes
The scope and breadth of the changes sought by the
Respondent in these negotiations far exceeded those of
negotiations past, and illuminated the impractical nature
of the Respondent’s deadline. Discussion of the matrix
occupied a significant portion of the negotiations through
September 15, the original contract expiration date. At
that point, the parties had presented their respective eco-
nomic proposals, but had only discussed them in general
terms. Once the parties extended the contract, they did
not turn their attention to economic issues, but, instead,
continued their ongoing discussions of the matrix and
other noneconomic proposals. By the end of the Sep-
tember 17 session, the parties’ discussion of economic
issues had been little more than an exchange, and rejec-
tion, of proposals, and general talk regarding the inter-
play between economics and the matrix. Thus, the artifi-
cially truncated negotiation period was insufficient to
allow meaningful discussion of the issues presented in
these negotiations. See Newcor Bay City Division, supra,
slip op. at 11 (citing U.S. Testing Co., 324 NLRB 854,
860–861 (1997), enfd. 160 F.3d 14 (D.C. Cir. 1998)).
c. The Respondent has not established that the parties
were deadlocked at the end of bargaining
The amount of movement on the Matrix that occurred
on September 17 also supports a finding of no impasse.
For the first time, the parties discussed a possible side
agreement, the transition agreement, which could resolve
several of the Union’s continuing concerns about the
matrix proposal. Also, the parties discussed, and the
Union expressed interest in, the possibility of trying the
matrix as a pilot program. The record thus shows that
the Union demonstrated flexibility and a willingness to
accept the matrix in some form. Indeed, the record dem-
onstrates that both parties were making efforts to narrow
the distance between their positions throughout the Sep-
tember 17 bargaining session.
This movement by the Union on September 17 also
presented an opportunity for meaningful negotiation on
economic issues. When the Respondent presented its
modified economic proposals, Kraft asked the Union to
consider them and see “how much [the Union] [could]
shave off [its] economic proposals.” Immediately after
requesting this movement, however, the Respondent
stated its intention to prepare its final proposal, which it
presented before the Union had an opportunity to re-
spond to the earlier proposal. In these circumstances, the
Respondent has not shown that the parties were dead-
locked on economics. 12
The presence of the transition agreement in the Re-
spondent’s final offer is further evidence of no impasse.
The transition agreement called for further negotiations
about the matrix, and specifically contemplated further
changes to the job classification structure proposed by
the Respondent during negotiations. By incorporating
the transition agreement into its final offer, the Respon-
dent effectively conceded that further fruitful negotia-
tions over job classifications were not only possible, but
necessary.
d. The Union did not consider the parties to
be at impasse
Finally, in response to the Respondent’s declaration of
impasse, the Union stated its intention to return to the
bargaining table pursuant to the decision of its member-
ship to continue bargaining rather than strike. Although
not determinative, these statements further support a
finding of no impasse. Newcor Bay City Division, supra,
slip op. at 11 (citing D.C. Liquor Wholesalers v. NLRB,
924 F.2d 1078, 1084 (D.C. Cir. 1991)). This is true even
though the Union had not yet offered specific additional
concessions, but only declared its intention to continue
bargaining.13 Id. (citing Grinnell Fire Protection Sys-
tems Co., 328 NLRB 585, 585–586 (1999), enfd. 236
F.3d 187 (4th Cir. 2000), cert. denied 534 U.S. 818
(2001)). 14
Based on the foregoing, we find that the Respondent
has failed to meet its burden of establishing the existence

12 The fact that the Union never moved from its initial economic
proposal does not support a finding of impasse because the Respon-
dent’s negotiating schedule did not give the Union a chance to present a
new proposal.
13 Chairman Battista does not agree that a mere intention to continue
bargaining, without specific proposals, precludes a finding of impasse.
14 Oakley’s comment to Horne that the parties were at “impasse”
does not alter this analysis. Because the Union subsequently voted to
return to the bargaining table and the Respondent only declared im-
passe 2 days later, it is unclear whether the comment demonstrates a
“contemporaneous understanding” that the parties were, in fact, at
impasse. Even if it did, it is insufficient in light of other Taft Broad-
casting factors favoring a finding of no impasse.
EAD MOTORS EASTERN AIR DEVICES 1065
of a valid impasse. Accordingly, the Respondent vio-
lated Section 8(a)(5) and (1) when it unilaterally imple-
mented new terms and conditions of employment. See
NLRB v. Katz, 369 U.S. 736 (1962).
B. Unilateral Changes
1. Toolroom attendant
Prior to September 2002, Cindy French served as the
toolroom attendant in a full-time capacity. Although not
mentioned by the judge, the record shows that on or
around September 25 a meeting was convened during
which Union Steward Leo Grondin and Management
Representative Jeff Smith discussed, among other things,
the impact on French of layoffs implemented earlier that
month. They agreed that, for “probably [half of her]
time,” French would be “helping out in [the] stock
room.” The other half of her time would be spent attend-
ing the toolroom. French was then notified of this
change.
Subsequently, French went on a leave of absence.
During her absence, employees started drawing their own
tools from the toolroom. When she returned, she was
reassigned to the stockroom, where she remained a full-
time employee. Her position as toolroom attendant was
therefore eliminated. The Respondent’s human re-
sources manager, Brenda Leamy, testified that this
change was made pursuant to implementation of the Re-
spondent’s Matrix proposal.
The General Counsel has alleged that the Respondent
violated Section 8(a)(5) and (1) by reducing the toolroom
attendant position from full time to part time, and by
eliminating the position altogether. The judge found no
violation. We agree.
Regarding the reduction from full time to part time, the
record shows that the Respondent conferred with union
leadership prior to altering French’s schedule. More-
over, it shows that the Union agreed to this change. The
record contains no other evidence to support a finding
that this was a unilateral change. Thus, the Respondent
did not violate Section 8(a)(5) when it “reduced” the
toolroom attendant position on September 25.
Regarding the elimination of the position and French’s
transfer to the stockroom, the record shows that this
change was made pursuant to the Respondent’s imple-
mentation of its matrix proposal. As we have found
above, the Respondent’s matrix implementation was
unlawful. However, the Board has made clear that in
order to constitute a unilateral change that violates the
Act, an employer’s action must effect a material, sub-
stantial, and significant change in terms or conditions of
employment. Millard Processing Services, 310 NLRB
421, 425 (1993); see also Peerless Food Products, 236
NLRB 161 (1978). The record does not demonstrate that
French’s transfer from the toolroom to the stockroom,
and the attendant elimination of the toolroom position,
amounts to such a change. The elimination of the tool-
room position did not affect French’s pay or her sched-
ule. As to her duties, prior to the Respondent’s elimina-
tion of the toolroom position, French’s work involved
working some of her time in the toolroom and some of
her time in the stockroom. Because of the change,
French merely began doing full time what she had been
doing part time. There is no evidence concerning the
duties of either position. Based on all of the above, we
find that it has not been established that the elimination
of the toolroom position altered French’s job duties in
any material, substantial, and significant way.15 As such,
we find that the unilateral change to French’s terms and
conditions of employment was de minimis, and that the
Respondent did not violate Section 8(a)(5) and (1) in this
respect. See Peerless Food Products, supra at 161.16

15 Citing Flambeau Airmold Corp., 334 NLRB 165, 172 (2001), our
dissenting colleague asserts that the elimination of the toolroom atten-
dant position changed “the job assignment[] of the affected employee[]
and, therefore, violate[s] the Act.” The dissent argues that French’s
work environment changed, and that she also lost “whatever variety she
derived from working the two positions.” There is, however, no record
evidence concerning the toolroom and stockroom work environments.
Nor is there any basis for finding a loss of variety in work assignments
where, as here, the record fails to establish the duties of either position.
Member Schaumber finds that Flambeau Airmold is further distin-
guishable and does not support finding a violation here. In Flambeau
Airmold, the positions of several employees were eliminated with other
employees required to “pick up” their responsibilities. Notably, the
Board affirmed the judge’s finding of no violation with respect to the
employees who “pick[ed] up” these job responsibilities because there
was no “evidence establishing that this was a material change.” Here,
as discussed above, the record evidence is insufficient to justify a find-
ing that the elimination of the toolroom attendant position changed
French’s terms and conditions of employment in any material, substan-
tial, or significant way.
16 Member Walsh agrees with the majority that the Respondent did
not violate the Act when it reduced the toolroom position from full time
to part time. However, he would find that the Respondent violated Sec.
8(a)(5) when it eliminated the position altogether and transferred
French to the stockroom. There is no dispute that the implementation
of the matrix was unlawful and that the elimination of the toolroom
position was made pursuant to the implementation of the matrix. As
such, the elimination of the position also violated Sec. 8(a)(5). Further,
it is well established that a statutory bargaining obligation arises with
respect to a unilaterally implemented change when that change is a
“‘material, substantial, and a significant’ one affecting the terms and
conditions of employment of bargaining unit employees.” Golden
Stevedoring Co., 335 NLRB 410, 415 (2001), quoting Millard Process-
ing Services, supra at 425 (1993) (citation omitted). Here, as the major-
ity points out, French had been doing both stockroom and toolroom
work. When the Respondent eliminated the toolroom position, French
spent all of her time in the stockroom. Even without evidence as to the
duties of either position, the elimination of the toolroom position re-
sulted in changes in French’s work environment and where she spent
some of her worktime. She also lost whatever variety she derived from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1066
2. PM stepper cell positions
On May 16, 2003, the Respondent posted an opening
for a cell operator class “C” in the PM stepper depart-
ment. The expired contract did not distinguish between
“classes” at this position, and classified it as a labor
grade 4, which determined its wage rate. Pursuant to the
matrix, the position was posted at labor grade 3, which
carried a lower wage.
The General Counsel alleged that the Respondent vio-
lated Section 8(a)(5) and (1) by posting this job pursuant
to the matrix at a lower pay grade than the position tradi-
tionally received. The judge found that there was no
violation. We disagree.
The Respondent unequivocally admitted that the
change in labor grade from 4 to 3 was made pursuant to
the matrix. As we have found above, the Respondent’s
implementation of its matrix proposal was unlawful.
Further, this change would effectively preclude any em-
ployee placed in the position from earning the higher
wage traditionally assigned to the position. A decrease
in unit employees’ wage rates is a material, substantial,
and significant change. See Millard Processing Services,
supra at 425.17 Therefore, this change, too, was made in
violation of Section 8(a)(5) and (1) of the Act.
3. Focused product line positions
The General Counsel also alleged that the Respondent
unilaterally changed positions on the focused product
line from labor grade 4 to 3, posted for the positions at
the lower labor grade, transferred two employees to the
positions, and paid them at the lower pay grade. The
judge found no violation because the changes were made
to allow more employees to qualify for the focused prod-
uct line positions and then to advance within that divi-

working the two positions. Thus, even though her salary and schedule
did not change, the transfer to the stockroom had a material, substantial,
and significant impact on her working conditions. Accordingly, “elimi-
nation of the position . . . clearly constituted a unilateral change in the
job assignment[ ] of the affected employee[] and, therefore, violated the
Act.” Flambeau Airmold Corp., supra at 172.
17 The Respondent argues that the change allowed employees who
would not have been qualified for the position at a labor grade 4 to
qualify for the position as trainees, with the opportunity to advance to
labor grade 4 once they were capable of performing the requirements of
the position. This contention does not alter our analysis. The posting
for the position at a lower wage rate eliminated the possibility that any
employee, however qualified, would receive the wage that historically
accompanied the position when initially placed into it. As such, it was
an unlawful unilateral change.
The Respondent also asserts that no employee was disadvantaged by
the job posting, as there is no evidence that the employee who filled the
position would have qualified for it had it been posted at labor grade 4.
While this contention does not detract from our finding of an 8(a)(5)
violation, it may affect the remedy. Therefore, we leave to compliance
consideration of the Respondent’s claim that no employee suffered any
losses as a result of this change.
sion. The General Counsel argues that the changes were
made pursuant to matrix implementation and thus vio-
lated Section 8(a)(5) and (1).
For the reasons set forth above in our discussion of the
PM stepper cell positions, we find that the Respondent
violated Section 8(a)(5) and (1) as alleged.18
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, and, on request of the Union, to immediately put
into effect all terms and conditions of employment pro-
vided by the contract that expired at 7 p.m. on September
17, 2002, and to maintain those terms in effect until the
parties have bargained to agreement or a valid impasse,
or the Union has agreed to changes. We shall order the
Respondent to make whole the unit employees and for-
mer unit employees for any loss of wages or other bene-
fits they suffered as a result of the Respondent’s imple-
mentation of new terms and conditions of employment,
as set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987). We shall order the Respondent to
reimburse unit employees for any expenses resulting
from the Respondent’s unlawful changes to their health
and dental benefits, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940
(9th Cir. 1981), with interest as set forth in New Horizons
for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, EAD Eastern Air Devices, Inc., Dover, New
Hampshire, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Making unilateral changes in wages, hours, and
other terms and conditions of employment of its bargain-
ing unit employees without first bargaining with the Un-
ion to impasse.
(b) Failing and refusing to provide to the Union the
Respondent’s final contract offer in writing, a summary
plan description of its 401(k) plan, a copy of its health
insurance plan, or other information that is necessary to
the Union’s performance of its duties as collective-
bargaining representative of the Respondent’s employ-
ees.
(c) Unlawfully withdrawing recognition from the Un-
ion.

18 We again leave to compliance consideration of the Respondent’s
claim that no employee suffered any losses as a result of this change.
EAD MOTORS EASTERN AIR DEVICES 1067
(d) Unlawfully assisting, dominating, and interfering
with the “Have Your Say” committee or any other labor
organization.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with the Union as the exclusive collective-bargaining
representative of its employees in the following unit:
All factory production, toolroom, maintenance and
working line supervisor employees employed by the
Respondent at its Dover, New Hampshire facility, but
excluding executives, office and clerical employees,
subsupervisors, superintendents, supervisors, general
supervisors, engineers, employees of the engineering
department, employees of the production control de-
partment, guards, watchmen, department supervisors,
and all other supervisors as defined in the Act.
(b) On request of the Union, rescind the Respondent’s
unlawful unilateral changes since September 17, 2002,
and restore, honor, and continue the terms and conditions
of the contract with the Union that was set to expire on
September 17, 2002, until the parties sign a new agree-
ment or good-faith bargaining leads to a valid impasse.
(c) Make whole employees and former employees for
any and all loss of wages and other benefits incurred as a
result of the Respondent’s unlawful alteration or discon-
tinuance of contractual benefits, with interest, as pro-
vided for in the amended remedy section of this decision.
(d) Furnish to the Union in a timely manner the infor-
mation requested by the Union on September 19 and
October 24, 2002, and February 28, 2003.
(e) Immediately disestablish and cease giving assis-
tance or any other support to the “Have Your Say” com-
mittee or its successors at its Dover, New Hampshire
facility or bargaining with it or its successors concerning
mandatory subjects of bargaining.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Dover, New Hampshire, copies of the at-
tached notice marked “Appendix.”19 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September
17, 2002.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT make unilateral changes in wages, hours,
and other terms and conditions of employment of our
bargaining unit employees without first bargaining with
the Union to impasse.
WE WILL NOT unlawfully fail and refuse to provide to
the Union our final contract offer in writing, a summary

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1068
plan description of our 401(k) plan, a copy of our health
insurance plan, or other information that is necessary to
the Union’s performance of its duties as collective-
bargaining representative of our employees.
WE WILL NOT unlawfully withdraw recognition from
the Union.
WE WILL NOT unlawfully assist, dominate, and inter-
fere with the “Have Your Say” committee or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good
faith with the Union as the exclusive collective-
bargaining representative of our employees in the follow-
ing unit:
All factory production, toolroom, maintenance and
working line supervisor employees employed by us at
our Dover, New Hampshire facility, but excluding ex-
ecutives, office and clerical employees, subsupervisors,
superintendents, supervisors, general supervisors, engi-
neers, employees of the engineering department, em-
ployees of the production control department, guards,
watchmen, department supervisors, and all other super-
visors as defined in the Act.
WE WILL, on request of the Union, rescind our unlaw-
ful unilateral changes since September 17, 2002, and
restore, honor, and continue the terms and conditions of
the contract with the Union that was set to expire on Sep-
tember 17, 2002, until we sign a new agreement or good-
faith bargaining leads to a valid impasse.
WE WILL make whole employees and former employ-
ees for any and all loss of wages and other benefits in-
curred as a result of our unlawful alteration or discon-
tinuance of contractual benefits, with interest.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on September 19 and
October 24, 2002, and February 28, 2003.
WE WILL immediately disestablish and cease giving
assistance or any other support to the “Have Your Say”
committee or its successors at our Dover, New Hamp-
shire facility or bargaining with it or its successors con-
cerning mandatory subjects of bargaining.
EAD MOTORS EASTERN AIR DEVICES, INC.
Avrom J. Herbster, Esq., for the General Counsel.
Adam S. Taylor, Esq. (Kraft, Taylor, & McCormack), of Port-
land, Maine, for the Respondent.
Stephen M. Koslow, Esq., of Washington, D.C., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. IUE–CWA
Local 81243, AFL–CIO (the Union) filed charges against EAD
Motors Eastern Air Devices, Inc. (Respondent).
The charge and amended charge in Case 1–CA–40651 were
filed on February 3 and August 20, 2003, respectively. The
charge in Case 1–CA–41036 was filed on June 18, and the
charge in Case 1–CA–41172 was filed on August 19, 2003.
On November 28, 2003, the National Labor Relations Board,
by the Acting Regional Director for Region 1, issued an
amended consolidated complaint (complaint), which alleges
that Respondent violated Section 8(a)(1), (2), and (5) of the
Act.
The 12-page complaint alleges a number of violations of the
Act, which are more fully set forth below.
The most significant of the allegations are: (1) that Respon-
dent unlawfully declared impasse in September 2002 during
contract renewal negotiations and thereafter unlawfully and
unilaterally implemented many changes to its employees’ terms
and conditions of employment, (2) that Respondent in June
2003 unlawfully withdrew recognition from the Union, and (3)
that Respondent in August 2003 created, assisted, and domi-
nated the “Have Your Say Committee,” a labor organization
established to fill the void left by Respondent’s unlawful with-
drawal of recognition from the Union.
Respondent filed an answer to the complaint in which it de-
nied that it violated the Act in any way.
A hearing was held before me in Boston, Massachusetts, and
Dover, New Hampshire, on 12 days between January 26 and
March 10, 2004.
This case is also the subject of a 10(j) injunction proceeding
before the Honorable Steven J. McAuliffe of the United States
District Court for the District of New Hampshire.
On the entire record in this case, to include posthearing
briefs submitted by counsel for the General Counsel, Respon-
dent, and the Charging Party, and on my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times Respondent, a corporation with an of-
fice and place of business in Dover, New Hampshire, has been
engaged in the manufacture, sale, and distribution of electric
motors.
Respondent admits, and I find, that at all material times Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
EAD MOTORS EASTERN AIR DEVICES 1069
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
A collective-bargaining relationship between Respondent
and the Union had existed for close to 60 years.
The Union was Local 243 of the International Union of Elec-
trical Workers (IUE), which merged a few years ago with the
Communication Workers of America (CWA) to become IUE–
CWA Local 81243. The 81 prefix identifies it as an IUE Local.
This Local was one of the oldest locals in the IUE.
The parties had successfully agreed to a number of collec-
tive-bargaining agreements over the years. The most recent
collective-bargaining agreement ran from September 16, 1999,
through September 15, 2002, which by mutual consent of the
parties during negotiations was extended to 7 p.m. on Septem-
ber 17, 2002.
B. Impasse
The parties began negotiations for a successor collective-
bargaining agreement on September 5 and held seven negotiat-
ing sessions, i.e., September 5, 10, 13, 14, 15, 16, and 17, 2002.
They negotiated for approximately 73 hours over those seven
sessions according to Ed Oakley, a union representative and
chief union negotiator. Ed Oakley was the chief union negotia-
tor and he was assisted by a committee of four union officers
who were also full-time employees of Respondent. Oakley is a
full-time employee of the Union.
The chief negotiator for Respondent was private Attorney
Peter Kraft and he was assisted by several other people from
Respondent’s management ranks.
The parties began negotiations with both sides understanding
that Respondent’s business was in trouble financially. Evi-
dence at the hearing before me showed sales dropped between
2000 and 2002 from $22 to $14 million. Foreign competition
was a major problem. Respondent makes customized motors.
The owner of Respondent is Logan Delaney who did not tes-
tify. Delaney also owns another company that manufactures
and sells motors in Arkansas.
Fortunately, Respondent’s business seems to be doing better
financially according to the testimony of Respondent’s director
of human resources, Brenda Leamy, who so testified late in the
hearing before me.
In any event Respondent’s then president, Dominic More,
opened the negotiations on September 5, 2002, with remarks
about the financial problems facing Respondent and that some
major changes were required.
One of the major changes required by Respondent was that
the employees would be covered by Respondent’s 401(k) plan
and no longer would Respondent make contributions on behalf
of unit employees to the union pension fund. Most signifi-
cantly, however, Respondent wanted to do a massive restructur-
ing of job classifications. Respondent’s rationale for wanting
this massive restructuring were triggered by Respondent want-
ing greater flexibility in its work force, i.e., employees being
able to perform several different jobs and this would help Re-
spondent in producing product by giving it more flexibility in
where to assign employees to work. This massive restructuring
proposal of changing and combining the 41 jobs listed in the
collective-bargaining agreement into what turned out to be 9
jobs was referred to in this litigation as the matrix.
Bargaining over job classifications and duties are mandatory
subjects of bargaining and the parties can bargain to impasse
over these issues and if lawful impasse is reached the employer
can implement its last best offer.
In this case, Respondent ended negotiations on September
17, 2002, when this single most important proposal contained
in its final contract offer to the Union—a proposal to scrap all
existing job descriptions and pay rates and replace them with an
entirely new job classifications system and new pay rates—was
still largely unformulated. As outlined by Respondent during
negotiations, the new job classifications system would combine
the job functions of the 41 existing unit positions into a number
of new job classifications. Each of these new job classifica-
tions would have its own list of job responsibilities, a “Skill
Matrix” listing skills required to qualify for positions within
that job classification, and a “Progression Matrix” specifying
the skills and degree of proficiency required to progress to
higher-paying positions within that classification.
The parties deliberated long and hard on a number of issues
to include Respondent’s job classification restructuring pro-
posal, i.e., the matrix, but could not reach agreement on many
subjects.
On September 17, 2002, the last day of negotiations the Un-
ion proposed adopting a transition agreement on the matrix if
Respondent would back off its proposals on a number of sub-
jects to include calculation of union dues, required employee
cooperation in alleged unlawful harassment investigations,
change in vacation policy, maintenance by Respondent of inac-
tive disciplinary records of employees, modification of the
contract rights of union officers to perform union business, use
of temporary employees, etc.
Respondent rejected the Union’s compromise package deal.
As a result there was no agreement on the transition agreement.
The proposed transition agreement provided as follows:
Transition Agreement On Job Classification
• During the first year of the contract, the Company
and the Union shall meet quarterly to discuss the
strengths and weaknesses of the new job classifica-
tion/job title structure, and shall work together to
incorporate prudent and necessary changes to said
structure. During the first quarter, similar meetings
will be held monthly.
• The company shall hold informational meetings
with employees to explain how the new job classi-
fication structure will work.
• Once an expert or proficient skill level is attained,
the employee shall retain such determination. Once
a job title has been achieved, the employee shall re-
tain the rate of the job title so long as the employee
stays with the progression grouping that the title be-
longs to.
• To the extent a job title is not currently included in
a progression matrix, the employee shall retain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1070
their current job title until the Skill Matrix for their
position is completed.
For the Company: For the Union:
________________ _______________
Had Respondent accepted the Union’s package proposal, i.e.,
that on the matrix the parties would comply with the transition
agreement if Respondent backed off on a number of its other
proposals then the parties could have had an agreement. How-
ever, Respondent rejected the Union’s package proposal.
It is likely that the parties may never have reached agreement
on some subjects but they had not reached impasse on the ma-
trix because there was no complete matrix proposal on the table
when negotiations ended on September 17, 2002.
The parties could agree to work out the details on the matrix
in the future but Respondent could not declare a lawful impasse
when Respondent had never submitted a complete matrix pro-
posal to the Union prior to declaring impasse.
Prior to, during, and immediately after the September 2002
negotiations for a renewal collective-bargaining agreement the
current contract had nine labor grades, i.e., pay grades num-
bered 2 to 9 with 9 the highest paid and 2 the lowest paid, and a
listing 41 jobs. The collective-bargaining agreement provided
as follows:
Following is a list of all jobs and their appropriate Classifica-
tions and respective Labor Grades.
Class 2—Production Workers—Labor Grade 2
Impregnate/Assemble
Janitor/Maintenance Assistant
Machine Operator “C”
Assembler
Winder/Assembler
Packer
Class 3—Other Occupations, Various Skills—Labor Grade 3
Shipping/Stock Clerk
Hand Inserter
Line Repair Operator
Welder “B”
Paint Sprayer
Receiving/Acceptance Inspector
Class 4—Other Occupations, Various Skills—Labor Grade 4
Machine Set-Up and Operate
Lead Stock Clerk
Special Line Repair Operator
Process Inspector
Short Run Stator
Assembler
FPL Set-Up/Operator “C”
Junior Maintenance Mechanic
Class 5—Other Occupations, Various Skills—Labor Grade 5
Tool Crib and Gage Attendant and Repairperson
Metal Finisher
Raw Material Handler
Assembler A
Welder “A”
Lead Paint Sprayer
Floorperson Assembly
Sr. Receiving/Acceptance Inspector
Class 6—Other Occupations, Various Skills—Labor Grade 6
Set-Up Person “B”
Senior Stock/Shipping Clerk
Set-Up, Impregnate, Core Building Assembly and Machining
Winding Department Equipment Set-up
Class 7—Other Occupations, Various Skills—Labor Grade 7
Set-Up Person “A”
Tool and Die Maker “B”
Maintenance Mechanic
Class 8—Other Occupations, Various Skills—Labor Grade 8
Master Set-Up
Class 9—Other Occupations, Various Skills—Labor Grade 9
Tool and Die Maker “A”
Electrician (Maintenance)
Automatic Screw and Bar
Senior Maintenance
Mechanic
Machine Set-Up
Senior Set-Up”
The matrix as implemented had nine different matrixes.
However, at the end of negotiations on September 17, 2002, the
Respondent had only advised the Union of five job classifica-
tions, i.e., assembler, assembly leadperson, machine operator,
machine leadperson, and manufacturing cell. Both the Union
and Respondent were aware that this was not the complete list
of job classifications or matrixes.
After Respondent declared impasse it unilaterally established
four new job classifications, i.e., quality skill matrix, material
skill matrix, maintenance skill matrix, and miscellaneous skill
matrix. These four matrixes or job classifications were never
discussed during negotiations. Within each matrix was a list of
the functions a person in that classification was required to
perform. Within each matrix a person would be rated as
trainee, proficient, or expert with higher pay as an employee
went from trainee to proficient to expert. Expert signifying that
you could train others.
The materials on the matrix given to the Union during nego-
tiations were contained in General Counsel Exhibit 14. As
noted above the material was incomplete and four new matrixes
were added to the five discussed during negotiations.
Respondent issued General Counsel Exhibit 16 entitled “Us-
ers Manual.” It was dated November 2002, and the record is
not clear as to whether the Union received it in November 2002
or in January 2003. But be that as it may the Union’s chief
negotiator, Ed Oakley, made a comparison between the matrix
material furnished to the Union during negotiations and the
contents of the users manual which addressed the matrix and
credibly testified that he found no less than 29 differences be-
tween what the Union was told about the matrix during negotia-
tions and what was finally implemented. (GC Exh. 28.)
EAD MOTORS EASTERN AIR DEVICES 1071
Before lawful impasse can be reached it is obvious that the
parties should know what they are negotiating about. You can’t
intelligently reject a proposal without knowing what it is that
you are rejecting. The burden of demonstrating the existence of
impasse rests on the party claiming impasse. Roman Iron
Works, 282 NLRB 725, 731 (1978).
The duty to bargain does not require a party to engage in
fruitless marathon discussions at the expense of frank statement
and support of one’s position. Where there are irreconcilable
differences in the parties’ positions after full good-faith nego-
tiations, the law recognizes the existence of an impasse. Some
difficulty exists in establishing the inherently vague and fluid
standard applicable to an impasse reached by hard and steadfast
bargaining, as distinguished from one resulting from an unlaw-
ful refusal to bargain. It may be that in collective bargaining
part of the difficulty arises from the fact that the law recognizes
the possibility of the parties reaching an impasse.
The existence or nonexistence of an impasse is normally put
in issue when, after negotiations have been carried on for a
period of time, the positions of the parties become fairly fixed
and talks reach the point of stalemate. When this occurs, the
employer is free to make unilateral changes in working condi-
tions (i.e., wages, hours, etc.) consistent with its offers that the
union has rejected. NLRB v. Katz, 769 U.S. 736 (1962). In the
instant case, the Union could not have rejected the matrix be-
cause it was incomplete. By the very nature of the bargaining
process, it is not always apparent when an impasse has been
reached. In general, before an employer may lawfully make
unilateral changes, however, an impasse must exist.
In A.M.F. Bowling Co., 314 NLRB 969 (1994), the Board
summarized its test for impasse by saying: “The Board has
defined impasse as the point in time of negotiations when the
parties are warranted in assuming that further bargaining would
be futile . . . . Both parties must believe that they are at the end
of their rope.” Id. at 978. In Taft Broadcasting Co., 163 NLRB
475 (1967), the Board stated that impasse occurs “after good
faith negotiations have exhausted the prospects of concluding
an agreement” and enumerated some of the considerations in
making such a determination:
Whether a bargaining impasse exists is a matter of judgment.
The bargaining history, the good faith of the parties in nego-
tiations, the length of the negotiations, the importance of the
issue or issues as to which there is disagreement, the contem-
poraneous understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.
The Board may also consider additional factors, for the exis-
tence of an impasse is very much a question of fact. These may
include:
1. Whether there has been a strike or the union has
consulted the employees about one. However, a strike
does not necessarily create an impasse and may even break
a preexisting one.
2. Fluidity of position.
3. Continuation of bargaining.
4. Statements or understandings of the parties concern-
ing impasse.
5. Union animus evidenced by prior or concurrent
events.
6. The nature and importance of issues and the extent
of difference or opposition.
7. Bargaining history.
8. Demonstrated willingness to consider the issue fur-
ther.
9. Duration of hiatus between bargaining meetings.
10. Number and duration of bargaining sessions.
11. Other actions inconsistent with impasse.
Impasse on one, or several, issues does not suspend the obli-
gation to bargain on remaining, unsettled issues. Nor does the
existence of a general impasse insulate a party from the duty to
bargain, since an impasse normally only suspends the duty to
bargain and changed circumstances may end the suspension.
An impasse can end suddenly; almost any changed condition
or circumstance that renews the possibility of fruitful discus-
sion will terminate the impasse. Thus, a party’s willingness to
change its previous position can end the impasse. However,
one party cannot condition further bargaining on the other’s
willingness to modify its position unless there is a valid im-
passe. After Respondent ended negotiations on September 17,
2002, the Union presented the Respondent’s final contract offer
to the membership at a meeting the Union’s leadership held
with the unit employees. The unit employees voted over-
whelmingly 68 to 7 to reject the Respondent’s last offer. The
unit employees also accepted the recommendation of Chief
Negotiator Ed Oakley that the employees not go on strike but
rather go to work and the Union would see what it could do.
On September 25, 2002, Ed Oakley sent a letter to Respon-
dent, wanting to bargain further over the “Company’s far reach-
ing proposals” and in January 2003 the Union again requested
further bargaining and specifically cited the incompleteness of
Respondent’s matrix proposal.
The General Counsel and Charging Party argue that no law-
ful impasse could be reached where the Respondent’s proposal
is incomplete or as counsel for the Charging Party called it
during the hearing the proposal is still “a work in progress” or
as the Board in I.T.T. Rayonier, Inc., 305 NLRB 445 (1991),
said regarding an offer on a yet to be formulated incentive pay
plan put forward by Respondent that Respondent needed to put
“meat on the bone.”
Accordingly, I find the Respondent violated Section 8(a)(1)
and (5) of the Act when it prematurely declared impasse and
began implementing its last best offer to the Union. Since the
Union did not have a complete proposal on the Matrix lawful
impasse could not be declared by Respondent. I.T.T. Rayonier,
Inc., supra; Outboard Marine Corp., 307 NLRB 1333 (1992).
Dave Horne, a former union officer and current employee of
Respondent, testified that on September 17, 2002, Ed Oakley
said after the last negotiating session that the parties were at
“impasse.” Oakley concedes he may have said this but meant
that it looked like the Union couldn’t get an agreement and not
that the parties were at lawful impasse.
C. Unilateral Implementation
Since a lawful impasse had not been reached Respondent
violated Section 8(a)(1) and (5) of the Act when it thereafter
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1072
unilaterally implemented changes to the terms and conditions
of employment of its employees generally consistent with its
last best offer to the Union at the negotiating table with the
exception of the matrix which was added to subsequent to the
end of the negotiations.
On October 22, 2002, Respondent admitted it issued a book-
let to unit employees entitled “wages, hours, and working con-
ditions—new policies and changes.” The booklet, General
Counsel Exhibit 18, included the following changes in wages,
hours, and working conditions from the 1999–2002 contract:
1. elimination of cost of living adjustment
(COLA), p. 3.
2. reassignment of Unit work to non-bargaining
unit personnel assigned to Development
Cells, p. 2.
3. discontinuance of Respondent’s contribu-
tions to the negotiated defined benefit pen-
sion plan, p. 4.
4. reduction of Respondent provided health
plan benefits and the increasing of the cost
of these benefits to employees, p. 5.
5. mandating of employee participation in Re-
spondent’s disciplinary investigations, p. 6.
6. limitation of arbitrators’ authority to reverse
certain discipline and termination cases, p. 6.
7. reduction and/or elimination of vacation
benefits, pp. 7–12.
8. assertion of the right to alter work schedules
on the second and third shifts with majority
approval of employees, but without negotiat-
ing the change with the Union, p. 12.
9. requiring employees to schedule doctor ap-
pointments as late in the day as possible in
order to receive pay for time lost, while ob-
taining treatment for work related injuries, p.
13.
10. changing of seniority provisions, pp. 14–17.
11. providing that past practices shall not be
binding, p. 18.
12. establishment of a discharge penalty for an
employee’s failing to adequately document
absences and tardiness, p. 18.
13. requiring that the Union submit grievances
only on forms approved by Respondent, p.
19.
14. retaining of employee discipline records be-
yond one year, p. 19.
15. expansion of Respondent’s ability to assign
Unit work to non-unit personnel, p. 21.
16. restriction of employees’ rights to make or
receive emergency telephone calls, p. 22.
17. elimination of language authorizing the Un-
ion president (or designee) to receive tele-
phone calls pertaining to Union business
during working hours, p. 22.
18. expansion of Respondent’s right to subcon-
tract Unit work, p. 23.
19. changing of temporary employees’ time
credit toward fulfillment of probationary pe-
riod, p. 24.
20. allowing of Respondent to use employees
from temporary employment agencies in cer-
tain instances to perform Unit work, p. 24.
21. modification of language providing for the
collection of Union dues or financial core
obligations from non-members of the Union,
p. 25.
22. provision that Respondent may switch to bi-
weekly payroll, p. 25.
23. prohibition of sympathy strikes for certain
companies owned or related to Respondent,
p. 26.
24. requiring that the union obtain written per-
mission from Respondent prior to soliciting
funds in the plant during working hours, p.
27.
25. prohibition of employees from conducting
Union business in the plant during working
hours, p. 30.
26. limiting to two the number of Union repre-
sentatives who may be absent on Union
business, and defining what constitutes Un-
ion business, p. 30.
27. limiting to four the number of Union repre-
sentatives who may attend negotiations, p.
30.
28. limiting to three the number of Union repre-
sentatives who may attend Union conven-
tions (for up to five consecutive working
days), p. 30.
29. increase in the amount of notice required for
Union leave, p. 30.
30. changes in Unit employees’ job classifica-
tions, job titles, job duties, job qualifications,
and rates of pay, p. 32.
The 30 changes listed above were admitted to by Respon-
dent. If a lawful impasse had been declared by Respondent the
implementation of these changes to the terms and conditions of
employment would be lawful. However, no lawful impasse
was reached. Therefore, Respondent violated Section 8(a)(1)
and (5) of the Act when it unilaterally implemented the above
changes. See NLRB v. Katz, 369 U.S 736 (1962).
In addition Respondent violated the Act in implementing the
matrix over the 3-month period after Respondent unlawfully
declared impasse. I credit the testimony of employee and Un-
ion President Michael Jackson that “discussions” or “meetings”
on the matrix between Respondent and the Union after negotia-
tions ended on September 17, 2002, were Respondent telling
the Union what Respondent had decided to do on the matrix
and nothing more.
D. Information Requests
It is well-settled law that if the Respondent refuses to turn
over to the Union which represents a unit of its employee in-
formation which the Union requests that is relevant and neces-
EAD MOTORS EASTERN AIR DEVICES 1073
sary to the Union in carrying out its collective-bargaining re-
sponsibilities then the Respondent has violated Section 8(a)(1)
and (5) of the Act by not bargaining in good faith. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967), NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956). Information regarding employees
represented by the Union, e.g., wages and benefits, is presump-
tively relevant and necessary to the Union in carrying out its
collective-bargaining obligations.
It is alleged that Respondent violated the Act by not comply-
ing with certain information requests made by the Union.
The Union about October 24, 2002, requested and Respon-
dent failed and refused to furnish the Union with its final con-
tract proposal in writing. The Union received Respondent’s
proposals during negotiations but they were in a less than a
totally organized order. The Union orally repeated this request
in a meeting with Respondent’s chief negotiator, Peter Kraft, on
January 28, 2003. Respondent had this information, should
have turned it over, and in failing and refusing to do so violated
Section 8(a)(1) and (5) of the Act.
Respondent replaced the union pension from with the 401(k)
plan that was available to its nonunion employees after unlaw-
fully declaring impasse. The Union in September 2002 re-
quested a copy of the summary plan documents describing the
401(k) plan. Respondent did not turn over these documents and
therefore violated Section 8(a)(1) and (5) of the Act since this
information was clearly relevant and necessary for the Union
carrying out its collective-bargaining responsibilities.
On or about February 28, 2003, the Union, in writing, re-
quested from Respondent information concerning health insur-
ance coverage and changes in insurance rates. Again, this in-
formation is clearly relevant and necessary to the Union in
carrying out its collective-bargaining responsibilities and the
failure of Respondent to produce it violated Section 8(a)(1) and
(5) of the Act.
It is alleged that Respondent’s chief negotiator, Peter Kraft,
violated the Act when on January 29, 2003, it notified the Un-
ion in writing that future information requests should be made
to him, in writing, and should state the reasons why the request
is being made. I do not find this to be a violation of the Act
since as a practical matter it is easier to know what the Union is
requesting if it is in writing and invariably the Union can easily
provide the reason or reasons for its requests. Putting in writ-
ing what you want and why you need it doesn’t appear to be
overly burdensome.
E. September 2002 Layoffs and Downgrades
During negotiations the parties knew that a layoff was com-
ing up. The parties knew Respondent was having financial
problems and there had been several layoffs in the recent past.
More specifically 25 employees were laid off in October 2001
and another 15 employees in January 2002. Hopefully, the
hearing testimony of Brenda Leamy, Respondent’s director of
human resources, that Respondent’s fortunes are getting better
continues to be true and further layoffs are not necessary.
In any event this layoff on September 23, 2002, of 17 unit
employees was done in the same manner as previous layoffs
were done. Further, Respondent granted the Union’s request at
the end of negotiations that the seniority clause under the ex-
pired contract apply to the layoffs rather than Respondent’s
proposed change to seniority, which the Union opposed. Re-
spondent did what the Union requested, i.e., used the old sen-
iority system of departmentwide rather than plantwide senior-
ity.
The layoff triggered a downgrade of some 12 other unit em-
ployees on September 25, 2002, essentially because they no
longer were doing setup work for the employees laid off. Re-
spondent convinced me that the layoff and resulting down
grades were done consistent with past practice. Later on De-
cember 18, 2002, the Union protested the downgrade and the
parties agreed to meet over it.
I find that the layoffs and downgrades by Respondent on
September 23 and 25, 2002, respectively, did not violate the
Act.
F. Miscellaneous Allegations
It is alleged that Respondent unlawfully reduced the tool-
room attendant position from full time to part time in Septem-
ber 2002, and in or about February 2003 eliminated the position
all together.
Cindy French worked as a toolroom attendant. She was
away from work and employees started drawing their own
tools. When French returned to work she was reassigned to the
stockroom and remained a full-time employee. I find no viola-
tion of the Act.
It is alleged that Respondent on October 23, 2002, unlaw-
fully eliminated the practice of allowing union offices and
stewards to take time off from scheduled work to attend union
business meetings. Respondent was busy at the end of the
month and asked the employees affected to change the date of
the union business meeting. They did not do so and Respon-
dent didn’t give them time off because they were needed at
work. I find no violation of the Act because of what happened
on October 23, 2002, but Respondent did unlawfully and uni-
laterally make changes regarding union business by employees
when it issued the booklet referred to in section III,C, above.
It is alleged that Respondent about October 24, 2002 recalled
two employees, Linda Doane and Nancy Kane, from layoff and
downgraded their jobs to PM stepper cell, labor grade 2 when
they had been labor grade 4. This was consistent with past
practice and I find no violation of the Act.
It is alleged that Respondent unlawfully failed to recall em-
ployee Jennie Smith on December 9, 2002, to the proper posi-
tion of maintenance assistant and instead posted an opening for
that position. Respondent in early 2003 recalled Jennie Smith
back to work and claims the job Smith was laid off from was a
janitor position and no requirement to recall her to the mainte-
nance assistant position, which was a new position under the
matrix. I find no violation of the Act.
It is alleged that Respondent unlawfully posted openings for
the position of quality assistant A in receiving. This was a new
matrix position. Respondent was without authority to post this
or any other matrix position because it prematurely claimed
impasse in the negotiations. Matters should be returned to the
status quo ante if so requested by the Union.
It is alleged that Respondent unlawfully assigned the unit
work of producing gears and winding stepper motors to non-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
unit employee Cindy Chapman in January 2003. This is a vio-
lation of Section 8(a)(1) and (5) of the Act because Respondent
should negotiate with the Union about nonunit employee
Chapman doing unit work and it did not.
It is alleged that Respondent violated the Act when about
February 10, 2003, it placed employee Marie Hay into a trainee
position and paid her a lower wage rate than she was entitled to
receive. This is a violation of the Act because the trainee status
in which Respondent placed Marie Hay was a new matrix posi-
tion and Respondent was without authority to implement the
matrix because of its premature invocation of impasse.
It is alleged that Respondent in February 2003 unlawfully
subcontracted circuit board production work to an outside con-
tractor. Under the expired collective-bargaining agreement
Respondent could subcontract work but not if it did so with
intent to eliminate bargaining unit positions. I credit Respon-
dent’s then president, Dominic More, that the work was sub-
contracted out for legitimate business reasons, i.e., the outside
contractor could do the work much cheaper than Respondent
could and Respondent subcontracted the work for this reason so
it could keep the customer and did not subcontract out the work
to eliminate jobs at Respondent. The employees affected by the
subcontracting out were reassigned and continued as employ-
ees. Accordingly, I find no violation of the Act.
It is alleged that Respondent unlawfully transferred em-
ployee Melissa Thornton to a position and paid her at a lower
rate than she was entitled to receive. This was a matrix position
and Thornton wasn’t qualified for the higher rate of pay. Since
the Matrix was unlawfully implemented matters should be re-
stored to the status quo ante if the Union so requests.
It is alleged that Respondent in March 2003 unlawfully sub-
contracted the unit work of screw machine and hand lathe op-
eration to an outside contractor. I find this was done for legiti-
mate economic reasons and not to eliminate unit work and was
not a violation of the Act.
It is alleged that Respondent in May 2003 posted a job in the
PM stepper cell at labor grade 3, rather than labor grade 4, and
paid a new employee at a lower wage rate than the position was
supposed to received. I find no violation of the Act because
Respondent didn’t lower any employee’s wage rate but added a
new job in the PM stepper cell to be paid at labor grade 3.
It is alleged that Respondent in June 2003 assigned the unit
work on the Hobbing machine to Cindy Chapman, a nonunit
employee. The Union had requested that a unit employee
named Claire do this job. However, Claire didn’t have the skill
to do the job and didn’t want to do it. I find no violation of the
Act.
It is alleged that Respondent posted and paid new employees
on the FPL (focused product line) at labor grade 3 rather than
labor grade 4. Respondent did so in order to qualify new em-
ployees to get the job on the FPL (focused product line) since it
is easier to qualify for a labor grade 3 position, get the job, and
progress to labor grade 4 than to qualify to start at labor grade 4
I find no violation of the Act.
It is alleged that Respondent in February 2003 placed em-
ployee and Union President Michael Jackson in the position of
material handler and paid him at a lower wage rate, i.e., the
wage rate of a trainee rather than at the higher wage rate of
proficient or expert.
Respondent paid Jackson at the lower rate to begin with be-
cause of his lack of knowledge of warehouse operations. At the
time of the hearing before me he was being paid at a higher rate
of pay.
This was done pursuant to the matrix, which was unlawfully
implemented by Respondent, and matters should be restored to
the status quo ante if the Union wants.
G. Withdrawal of Recognition
On June 16, 2003, Respondent by letter withdrew its recog-
nition of the Union as the exclusive collective-bargaining rep-
resentative of the unit.
At the time of contract renewal negotiations in September
2002 the unit had approximately 83 unit employees. After the
September 2002 layoff the complement of unit employees was
reduced to approximately 67. At the time Respondent with-
drew recognition there were 66 unit employees. Respondent
withdrew recognition based on a petition signed by 36 unit
employees saying they no longer wanted to be represented by
the Union. This is a majority of the employees but a razor thin
majority.
I find that the unfair labor practices committed by Respon-
dent tainted the decertification petition and Respondent could
not rely on the petition in withdrawing recognition from the
Union. See Heritage Container, Inc., 334 NLRB 455 (2001);
Mastronardi Mason Materials Co., 336 NLRB 1296 (2001);
and Penn Tank Lines, Inc., 336 NLRB 1066 (2001).
Further I find that even in the absence of the earlier unreme-
died unfair labor practices that Respondent’s assistance in
drafting the petition and the language of the petition render the
petition one that Respondent could not in good faith rely upon
in withdrawing recognition. An employer can render ministe-
rial aid in assisting employees with a decertification petition
and still rely on the petition but Respondent went beyond min-
isterial aid.
I find that employee support of the Union was undercut by
Respondent’s unfair labor practices. Before negotiations for a
new contract began on September 5, 2002, the Union conducted
a strike vote to see if the employees were willing to go on
strike. The vote was an overwhelming 49 to 0 in favor of going
on strike. After negotiations ended the employees voted 68 to 7
to accept the Union’s recommendation and reject Respondent’s
final contract offer.
Prior to negotiations beginning in early September only four
employees sought to become financial core members of the
Union, Arthur White, William Field, David Breunig, and Robin
Dupuis, and all but Dupuis told Union President Mike Jackson
that they were doing so because of increased dues occasioned
by the merger of the IUE and the CWA. Full members pay
more dues than financial core members.
Further in the spring of 2002, some months before negotia-
tions began in September 2002, Respondent permitted a peti-
tion to be posted on the bulletin board soliciting employee in-
terest in doing away with the union-security clause requiring
employees to be full members or financial core members of the
EAD MOTORS EASTERN AIR DEVICES 1075
Union, i.e., a so-called deauthorization petition. It attracted
little or no interest among the employees.
Lastly after September 17, 2002, when Respondent unlaw-
fully declared impasse Respondent no longer collected union
dues through dues checkoff and the uncontradicted testimony
of Oakley and Jackson is that the employees paid their dues.
Accordingly, there was strong support for the Union prior to
Respondent’s unfair labor practices, which remained unreme-
died and which began in late September 2002 and continued for
many months.
Respondent unlawfully declared impasse and unlawfully and
unilaterally implemented numerous changes to the terms and
conditions of employment of its employees and failed to pro-
duce to the Union relevant and necessary information the Union
requested. This could not help but undercut support for the
Union.
In late May 2003, employees Cathy Vachon and Kim Libby
asked Brenda Leamy, Respondent’s director of human re-
sources, for help in getting rid of the Union. Leamy consulted
with Attorney Peter Kraft who said to tell the women to call the
NLRB Regional Office in Boston and Leamy did just that. So
far so good. That was rendering ministerial aid and perfectly
lawful.
Vachon and Patty Fraser, another employee, sometime later
asked Leamy for help in wording a petition seeking to decertify
the union. They told Leamy why they wanted to get rid of the
Union. Leamy contacted Kraft who based on what Leamy told
him about why Vachon and Fraser wanted to get rid of the Un-
ion drafted a petition for the signature of employees seeking to
decertify the Union. The wording of the petition was as fol-
lows:
Petition
1. The undersigned employees of EADmotors are un-
happy with our Union representation. We feel this
way for several reasons:
2. They Union representatives do not seem to always
tell us the truth about what is happening. They are
patronizing us with partial facts, making themselves
sound better than they are, and making the Company
sound worse than it is. We’re tired of not getting the
real story. The Union’s trash talk can’t be doing us
any good with the owners either.
3. Some of the Local officials have been representing
themselves and what they want without thinking
about the rest of us. They are not supposed to be mo-
tivated by self interest, but instead by all the employ-
ees’ interests as a group.
4. The Union is causing too many fights, forcing the
Company to spend a lot of money on lawyers. Our
business is hurting. We don’t want the owners to get
so frustrated with the Union that the owner decides to
leave Dover, New Hampshire and move everything to
Arkansas.
5. The employees are more comfortable and have a
greater trust of the leaders who now run the Dover
plant (Dom More, Brenda Leamy) compared to the
old leadership (Lee Perlman, Lavana Snyder). After
the leaders changed, the Union hasn’t really been
needed so much anymore.
6. For these reasons (and other reasons as well), each
employee signing below no longer wants the Union
to represent him or her.”
7. When Leamy showed Fraser and Vachon the petition
the women said delete the fourth reason. Leamy did
so and the petition actually circulated among the em-
ployees read as follows:
PETITION
This undersigned employees of EADmotors are un-
happy with our Union representation. We feel this way for
several reasons:
1. The Union representatives do not seem to always
tell us the truth about what is happening. They are
patronizing us with partial facts, making them-
selves sound better than they are, and making the
Company sound worse than it is. We’re tired of
not getting the real story. The Union’s trash talk
can’t be doing us any good with the owners either.
2. Some of the Local officials have been representing
themselves and what they want without thinking
about the rest of us. They are not supposed to be
motivated by self interest, but instead by all the
employees’ interests as a group.
3. The Union is causing too many fights, forcing the
Company to spend a lot of money on lawyers. Our
business is hurting. We don’t want the owner to
get so frustrated with the Union that the owner de-
cides to leave Dover, New Hampshire and move
everything to Arkansas.
For these reasons (and other reasons as well), each
employee signing below no longer wants the Union to rep-
resent him or her.”
Respondent’s owner, Logan Delaney, who did not testify be-
fore me, owns another business in the State of Arkansas, which
also produces motors.
On June 4, 2003, Fraser and Vachon went to Leamy’s office
with the petition, signed by a majority of the unit employees,
i.e., 35 employees.
There were two copies of the petition one signed and circu-
lated by Cathy Vachon and one signed and circulated by Patty
Fraser. A total 35 employees signed the two petitions.
Vachon credibly testified that she signed the petition she cir-
culated and saw 11 other employees whom she named sign it as
well and testified that employee Robert Welch got 6 employees
to sign the petition and employee Dale Zopf got 3 employees to
sign it. In all the petition circulated contained the signatures of
21 employees.
Fraser credibly testified she signed the petition she circulated
and saw 10 employees whom she named sign it. The petition
Fraser circulated also contained the signatures of an additional
three employees for a total of 14 signatures. A 15th employee,
Donald Gosselin, signed the petition on June 13, 2004, for a
total of 36 employees signing both copies of the petition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
Respondent introduced into evidence W-4s for the employ-
ees whose signatures appear on the two petitions as well other
documents from employee personnel files containing signatures
of employees, i.e., I-9 immigration forms and health care bene-
ficiary forms. A comparison by me between the signatures on
the petition and the documents submitted from employee per-
sonnel files coupled with the testimony of Vachon and Fraser
lead me to conclude that the signatures on the two copies of the
petition were put on the petition by the employees.
I find that a majority of employees did sign the petition.
Leamy informed Attorney Peter Kraft that she had received
the petition and on Tuesday, June 10, 2003, Kraft held a meet-
ing with employees. Kraft read the petition verbatim and told
employees they had until Friday, June 13, 2003, to take his or
her name off the petition if he or she so decided. No one took
his or her name off the petition and one additional employee
Donald Gosselin actually signed the petition. On Monday, June
16, 2003, Kraft sent a letter to the Union advising it that Re-
spondent was withdrawing recognition.
Kraft conceded that with respect to paragraph 1 or the first
stated reason for decertification that it was he and not Vachon
or Fraser who selected the words “patronizing” and “trash
talk.”
The part of the petition, of course, that leaps out at anyone
experienced in labor law and would chill the spine of any em-
ployee who saw a similar reason listed for getting rid of the
Union where he or she worked is paragraph 3 or the third stated
reason, i.e.,
The Union is causing too many fights, forcing the Company
to spend a lot of money on lawyers. Our business is hurting.
We don’t want the owner to get so frustrated with the Union
that the owner decides to leave Dover, New Hampshire and
move everything to Arkansas. [Emphasis added.]
As noted above, Owner Logan Delaney owns another busi-
ness, which also manufactures electric motors and is located in
the State of Arkansas.
At the meeting on June 10, 2003, neither Kraft nor anyone
else on behalf of management told the employees that Respon-
dent would not move to Arkansas if the employees did not de-
certify the Union. When Kraft read verbatim the reasons listed
in the petition, without editorial comment, the employees could
only conclude that Respondent might relocate from New
Hampshire to Arkansas if the employees continued to support
the Union. Kraft put Respondent’s stamp of approval on the
reasons stated in the petition.
Needless to say a threat to relocate a plant to defeat a union
is a hallmark violation of the Act.
I find that the petition was tainted by Respondent’s earlier
and unremedied unfair labor practices and could not be relied
on to justify withdrawal of recognition from the Union. Fur-
ther, even if there were no prior and unremedied unfair labor
practices that the petition could not be relied on to justify with-
drawal of recognition because it contained a threat of plant
relocation which Respondent put its stamp of approval on by
typing the petition and more significantly by not disavowing
the threat of relocation at the meeting with employees on June
10, 2003.
I find Respondent violated Section 8(a)(1) and (5) of the Act
when it withdrew recognition from the Union on June 16, 2003.
H. The “Have Your Say” Committee
According to Brenda Leamy, the genesis of the “Have Your
Say” committee came on July 30 or 31, 2003, at a monthly
“Chat with the President” meeting. An employee asked why all
hourly employees didn’t all have the same benefits (unit and
nonunit) now that there was no union at Respondent. Accord-
ing to Leamy, Dave Horne suggested a committee to try and
establish consistent policies. However, minutes of the meeting
show that the committee, and even its name, was suggested by
Respondent President Dominic More.
On August 7, 2003, Respondent posted a notice on the em-
ployee bulletin board entitled: “Have Your Say—Volunteers
Needed.” It stated that:
In order to be consistent in our employee policies, it is
very obvious that changes have to be made. EAD is look-
ing for people to become part of a committee to discuss
these policies or issues and recommend one consistent pol-
icy for hourly employees. We would like YOU to tell us
what you think needs to be changed and what is important
to you.”
The notice continued by stating that employees should let the
human resources department know if they wanted to partici-
pate, that six members would be chosen, and that meetings
would be held for about 1 hour per month. Ten employees
volunteered and Respondent chose them all. On August 13,
2003, Respondent posted a notice advising employees of the
names of the 10 employees whom it had chosen to be on the
committee to deal with “recommendations on inconsistencies in
policies for hourly employees at EAD.” Employees were en-
couraged to see the members of the committee about concerns
or recommendations, or to write recommendations on a form
made available.
The committee meetings were held on working time, and
employees were paid while attending them. The first meeting
was held on August 20, 2003, during working time, in a confer-
ence room. The 10 members of the committee were divided
between unit and nonunit employees. Brenda Leamy led the
meetings and asked what issues were priorities to discuss. She
testified that she told the committee what was expected of them
and that their suggestions and recommendations would be con-
sidered. All objects pertaining to work were open for discus-
sion. None of these subjects were off limits. Brenda Leamy
asked committee members to find out what other employees
wanted and “to feel the pulse of the people in the plant,” and
get a representative sample of what employees thought.
On August 20, 2003, Respondent posted a notice concerning
the issues discussed at the committee meeting held that day.
(GC Exh. 66.) They included: vacation policy, sick/personal/pa
days, benefits, flextime, breaks and lunch, and make-up policy.
The notice stated that the group decided to discuss vacations
and sick/personal/pa days first. Respondent also posted
“teams” that would discuss four of the subjects. Each team
listed as a “monitor” either Leamy or Janice Zecher, a payroll
office employee, and admitted supervisor. Leamy character-
EAD MOTORS EASTERN AIR DEVICES 1077
ized herself and Zecher as team leaders; while they helped an-
swer questions, they could act like any other member of the
committee.
On September 4, 2003, Respondent posted a notice to em-
ployees listing recommended changes in the vacation policy
pursuant to their discussions at the last committee meeting.
(GC Exh. 67.) Based on the committee discussions, Respon-
dent changed the vacation policy so it would be easier to use,
and in January 2004, established new PTO (paid time off) and
attendance bonus policies. (GC Exhs. 67 and 68.) These poli-
cies were clearly beneficial to unit employees. Leamy testified
that she particularly helped with suggestions on the attendance
bonus policy.
Leamy admitted at the hearing that she and President More
decided what the structure of the committee would be, and that
it would make recommendations, not policy. She acknowl-
edged that the Union had previously discussed similar vacation
policy changes with Respondent. Leamy admitted that the
committee filled the void that was left since June, after Re-
spondent ceased to recognize the Union.
The evidence presented at the hearing shows that Respon-
dent established the committee at the suggestion of its presi-
dent, Dominic More. The committee is run and maintained by
Respondent, and was set up to deal with Respondent concern-
ing wages, hours, and working conditions. It has discussed
with Respondent changes in vacation policy, breaks, time-
clocks, flextime, and other issues, and makes recommendations
on vacation time and make-up time that became Respondent’s
policies. As Brenda Leamy admitted at the trial, the committee
fills a void left by the absence of the Union after the withdrawal
of recognition. The committee is a labor organization domi-
nated and assisted by Respondent. Electromation, Inc., 309
NLRB 990 (1992), enfd. 35 F.3d 1140 (7th Cir. 1994). By its
actions in connections with the committee, Respondent has
violated Section 8(a)(1) and (2) of the Act.
REMEDY
The remedy in the case should include a cease-and-desist or-
der, the posting of a notice, the restoration to the status quo
ante, if requested by the Union, and this may result in the pay-
ment of backpay or health insurance refunds, and the Respon-
dent should be ordered to once again recognize the Union and,
on demand, bargain with it in good faith. Restoring matters to
the status quo ante means, of course, Respondent reversing the
unilaterally implemented changes to terms and conditions of
employment it implemented following its premature declaration
of impasse.
CONCLUSIONS OF LAW
1. The Respondent, EAD Motors, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, IUE–CWA, Local 81243, AFL–CIO, is a la-
bor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act
when it unlawfully declared impasse and unilaterally imple-
mented changes to the terms and conditions of employment of
its employees.
4. Respondent violated Section 8(a)(1) and (5) of the Act
when it failed and refused to turn over to the Union information
requested by the Union concerning a written copy of Respon-
dent’s final contract offer, a summary plan description of Re-
spondent’s 401(k) plan, and a copy of Respondent’s health
insurance plan, which information was relevant and necessary
to the Union in carrying out its collective-bargaining responsi-
bilities.
5. Respondent violated Section 8(a)(1) and (5) of the Act
when it unlawfully withdrew recognition from the Union.
6. Respondent violated Section 8(a)(1) and (2) of the Act
when it unlawfully assisted, dominated, and interfered with the
“Have Your Say” committee, a labor organization within the
meaning of Section 8(a)(5) of the Act.
7. The above violations of the Act are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommended Order omitted from publication.]