Fmc Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 483 (N.L.R.B. 1988)

FMC CORP
FMC Corporation , Cable Crane and Excavator Divi-
sion and United Automobile , Aerospace and Ag-
ricultural Implement Workers of America, Inc.
Cases 18-CA-7654 and 18-CA-7971
July 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On October 24, 1983, Administrative Law Judge
George Norman issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs to which the Re-
spondent filed an answering brief. On February 6
986, pursuant to the Board 's remand order of Jul;y
6, 1984, Administrative Law Judge William A.
Gershuny issued the attached supplemental deci-
sion . The General Counsel and the Charging Party
filed exceptions and supporting briefs. The Re-
spondent filed exceptions and a supporting brief' to
which the Charging Party filed a reply brief. The
Respondent also filed a brief in response to the
General Counsel's and the Charging Party's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
supplemental decision and the record in light of the
exceptions and briefs and has decided to affirm the
judges' rulings , findings ,2 and conclusions only to
the extent consistent with this Decision and Order.
Before setting forth our rulings on each of the
issues raised by the complaints, the decision, and
the supplemental decision, we shall first summarize
the background of the case.
As set out below, the complaint in Case 18-CA-
7654 alleged that the Respondent violated Section
8(a)(5), (3), and (1) and Section 8(d) by unilaterally
transferring the manufacture of Sea Hawk pedestal
cranes from its unionized Cedar Rapids , Iowa facil-
ity to its nonunionized Bowling Green, Kentucky
plant and further violated Section 8 (a)(5) and (1)
by failing to bargain in good faith during conces-
sion bargaining requested by the Respondent
i The Respondent thereafter filed a motion to dismiss the complaints
on the basis that the controversy was moot . The Charging Party filed a
response We find no merit to the Respondent 's arguments in support of
its motion and deny it.
! The Respondent , the General Counsel , and the Charging Party have
excepted to some of the judges ' credibility findings . The Board 's estab-
lished policy is not to overrule an administrative law judge 's credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for overruling the find-
ings.
290 NLRB No. 62
483
during the term of the parties ' contract . The com-
plaint also alleged that certain supervisors made
threats and engaged in interrogations which violat-
ed Section 8(a)(1) and further violated Section
8(a)(5) by directly dealing with employees in an
effort to get employees to agree to the proposed
concessions. The complaint in Case 18 -CA-7971,
also more fully detailed below , alleged that the Re-
spondent violated Section 8(a)(5), (3 ), and (1) and
Section 8(d) by failing to bargain about the deci-
sion to transfer certain admitted bargaining unit
work (small crawler cable cranes) from its union-
ized Cedar Rapids plant to its nonunionized Bowl-
ing Green and Lexington , Kentucky facilities and
further violated Section 8 (a)(5) and ( 1) by failing to
bargain about the effects of the transfer and failing
to provide certain requested information regarding
this decision and its effects.
The complaints in Cases 18-CA-7654 and 18-
CA-7971 were the subject of a hearing before
Judge Norman in March and May 1983 . On Octo-
ber 24, 1983, Judge Norman issued a decision dis-
missing the complaints in their entirety . Regarding
Case 18-CA-7654, he summarily found , inter alia,
that various allegedly unlawful supervisory re-
marks and inquiries concerning the Sea Hawk
work were expressions of opinion of "lower eche-
lon people" that were not authorized by the Re-
spondent and that such conduct did not show that
the Respondent acted in retaliation in transferring
the Sea Hawk in violation of Section 8(a)(3). He
did not make any specific factual findings regard-
ing any of the seven allegedly unlawful statements
nor did he decide whether they separately consti-
tuted 8(a)(1) violations or whether they -were indic-
ative of direct dealing in violation of Section
8(a)(5).3 With respect to the complaint allegations
of Case 18-CA-7971, Judge Norman found that
the 6-month 10(b) period commenced with the Re-
spondent 's announcement to the Union on May 24,
1982, of its decision to transfer unit work and that
this period had run by the date on which the
charge in that case was filed-December 1, 1982.
Thus, the judge found that Section 10(b) precluded
' In finding that these remarks did not show retaliatory intent, the
judge recommended "the dismissal of the 8(a)(3) allegation with respect
to the interrogations and remarks by the supervisory personnel concern-
ing the Sea Hawk decision " It appears that the judge 's reference to an
8(a)(3) allegation in this context is an inadvertent error as the complaint
does not allege that these remarks violated Sec. 8(a)(3). It is not clear,
however , that the judge's discussion there was intended to dispose of all
the 8(a)(1) allegations where the judge set out none of their specifics and
simply referred to them as statements "concerning the Sea Hawk deci-
sion" and made by "lower echelon people " We note also that one of the
alleged unlawful remarks was attributed to the plant manager and several
remarks and inquiries concerned employee thoughts about concessions
without reference to the Sea Hawk decision Accordingly , we do not
read Judge Norman 's decision as containing recommendations regarding
the disposition of these alleged 8(a)(l) violations.
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consideration of the allegations pertaining to the
transfer decision as well as the allegations pertain-
ing to the failure to engage in effects bargaining
and to supply the requested information , which he
found were dependent on and subsidiary to an obli-
gation to bargain about the decision. He thus dis-
missed this complaint without further discussion.
By order dated July 6, 1984, the Board remand-
ed this case to the chief administrative law judge
(Judge Norman having retired on December 31,
1983) for designation to another judge who was to
make specific factual and legal findings regarding
the 8(a)(1) allegations of threats and interrogations
in Case 18-CA-7654. The order also directed the
designated judge to make specific factual and legal
findings regarding the 8 (a)(5) effects bargaining and
information allegations of Case 18-CA-7971. A de-
cision on all the issues in both cases was held in
abeyance pending the issuance of the supplemental
decision . Thereafter , Judge Gershuny , to whom
this case was assigned , issued a supplemental deci-
sion on February 6, 1986 . He set forth the factual
findings pertaining to the seven alleged 8 (a)(1) in-
terrogation and threat allegations , finding that sev-
eral of the statements violated the Act and dismiss-
ing the others . He further found that the Union
had requested bargaining about the effects of the
decision to transfer small crawler cranes on June 2,
1982, and that , as admitted by the Respondent, no
effects bargaining had taken place. He failed to rule
formally on this 8(a)(5) allegation , however, finding
it intertwined with and dependent on the decision
bargaining allegation , which he found that he was
not authorized to rule on as it had not been includ-
ed in the Board 's remand order . With respect to
the information request allegation , he found that
the Union had requested certain information on
June 2 , 1982, but he otherwise failed to set forth
facts or to rule on the information request issue,
noting that the parties ' briefs did not "address" the
relevance of each item requested or the adequacy
of each piece of information provided by the Re-
spondent.
Turning now to the merits of this case, we find
as follows:
A. Case 18-CA-7654
1. The complaint in Case 18-CA-7654 alleged
that the Respondent violated Section 8(a)(5) and
(1) and Section 8(d) in various respects. First, it
was alleged that the Respondent unilaterally and
without the consent of the Union relocated certain
alleged bargaining unit work (the manufacture of a
Sea Hawk pedestal crane) from its unionized Cedar
Rapids , Iowa plant to its nonunionized Bowling
Green , Kentucky facility . Second, it was alleged
that, by this transfer, the Respondent sought to
evade its contractual obligation.
Judge Norman dismissed both these allegations.
He found that Sea Hawk was a new product line
and that the decision to build it at Bowling Green
did not involve a transfer of bargaining unit work.
Thus he found that despite the fact that employees
believed, based on the statements and actions of
certain supervisors and anticipatory preparations at
the Cedar Rapids plant, that Sea Hawk would be
manufactured at Cedar Rapids, the Respondent
was not obligated to bargain with the Union re-
garding its decision to produce Sea Hawk at Bowl-
ing Green and therefore did not violate Section
8(a)(5) and (1) and Section 8(d) when it failed to
do so. He further found that the decision to
produce Sea Hawk at Bowling Green was prompt-
ed by legitimate business considerations , including
the fact that Bowling Green was the principal man-
ufacturing site for most of the Respondent's pedes-
tal cranes. He further found that, at most, there
was a loss of work at Cedar Rapids on the produc-
tion of one Sea Hawk prototype and that this loss
had a de minimis effect on employees.
We agree with Judge Norman's dismissal of
these 8 (a)(5) and ( 1) and 8(d) allegations for the
following reasons . First, regarding the 8(a)(5) alle-
gation that is based on the specific proscription of
Section 8(d), we rely on the Board's later decision
in Milwaukee Spring Division, 268 NLRB 601 (1984)
(Milwaukee Spring II).4 Here, as was found in Mil-
waukee Spring II, there is no evidence that the par-
ties' contract contained a provision which restrict-
ed or otherwise preserved the performance of the
Sea Hawk work to the Cedar Rapids facility. Simi-
larly, there is no clause which restricts the Re-
spondent's decision-making regarding work reloca-
tion. Accordingly, we find that the Respondent did
not modify the parties' contract and thus did not
4 Subsequent to the issuance of Milwaukee Spring !!, supra , the General
Counsel in this case filed a motion to withdraw its exceptions to the
extent that its earlier -filed exceptions relied on the Board 's decision in
Milwaukee Spring Division , 265 NLRB 206 (1982) (Milwaukee Spring !)
That motion was granted We note, however , that the Charging Party,
which had separately excepted to the judge's findings on these issues, did
not join in this motion to withdraw Hence , the issue remains before us
for our consideration.
In MilwauAee Spring !! , 268 NLRB 601 (1984 ), the Board found that
the respondent did not violate Sec 8 (a)(5) and Sec 8(d) when it failed to
obtain the union 's consent to its decision to transfer certain bargaining
unit work from one location to another . In so doing, the Board found
that while an employer may not unilaterally institute proposed changes in
contractual terms and conditions of employment which are mandatory
subjects of bargaining , Sec. 8(d) proscribes unilateral modification of con-
tractual terms only where the modified term is contained in the contract.
The Board found that the parties ' contract did not contain a clause re-
quiring the bargaining unit work in question to remain at the Milwaukee
plant and that the relocation did not disturb existing wages and benefits
of unit employees Thus, the Board found that the respondent did not un-
lawfully modify the terms of the contract in violation of Sec. 8(d) when
it transferred the work
FMC CORP.
violate Section 8(a)(5) as defined in Section 8(d)
when it decided to manufacture the Sea Hawk
crane at its Bowling Green facility .5 We further
dismiss the second alleged theory of an 8(a)(5) vio-
lation . Thus, we find that the unilateral transfer of
the Sea Hawk crane work did not violate the Act
even if it were bargaining unit work . We note in
this regard that the credited testimony, as found by
Judge Norman, shows that the decision to manu-
facture the Sea Hawk crane at Bowling Green in-
vQlved a number of business reasons , including
higher productivity , lower scrap costs , and lower
wage rates at Bowling Green as well as the fact
that Bowling Green was the Respondent 's principal
pedestal crane manufacturing site . We thus find
that the Respondent 's decision to manufacture Sea
Hawk at Bowling Green did not violate Section
8(a)(5) under any of the views expressed in Otis El-
evator Co., 269 NLRB 891 (1984) (Otis Elevator II).
In adopting Judge Norman 's conclusion that the
Respondent did not violate Section 8 (a)(5) by re-
moving the Sea Hawk prototype from Cedar
Rapids to Bowling Green , we find it unnecessary
to rely on his finding that the loss of such work
was de minimis . Rather , we note that the General
Counsel , in contending that the transfer of the Sea
Hawk project was unlawful , did not allege or
argue that the removal of the Sea Hawk prototype
alone violated the Act. We further find that the
issue of whether the removal of the prototype
alone was unlawful was not fully litigated.6
° In Member Johansen 's view , Sec 8(d) defines the duty to "bargain
collectively ." It is an "unfair labor practice" as defined in Sec 2(8), pur-
suant to Sec . 8(ax5) and 8 (bX3) "to refuse to bargain collectively " Sec.
8(d) merely defines conduct which will violate either Sec 8(a)(5) or
8(b)(3). Sec . 8(d) is not itself violated by that conduct
° Chairman Stephens does not reach the question whether, assuming
the production of the Sea Hawk were unit work at Cedar Rapids, the
decision to subcontract it to another plant would be a mandatory subject
of bargaining under the Otis Elevator test Rather , he would affirm the
Judge's finding, based on the credited testimony of Division Manager
Robert Price, that the Respondent 's initial decision regarding the location
for producing the Sea Hawk was the decision to manufacture it at Bowl-
ing Green . Thus, it never became unit work at Cedar Rapids and there is
no work transfer issue in the case , at least so far as production of the Sea
Hawk is concerned . Chairman Stephens agrees with the judge that this
was a decision regarding the location in which manufacturing of a new
product line would be started up and that such decisions are entrepre-
neurial decisions that are not subject to a bargaining obligation under the
Act.
With respect to the work on the Sea Hawk prototype , Chairman Ste-
phens would find that the work of building at least one Sea Hawk proto-
type was removed from the bargaining unit. He reaches this conclusion
on the basis of the credited evidence that the building of prototypes was
customarily done at Cedar Rapids and that a decision to build one proto-
type at Cedar Rapids had been prepared for and publicly announced. He
does not , however, agree with the judge 's conclusion that loss of this
work resulted in only a "de minimis" loss to the employees and that uni-
lateral removal of the work could therefore not constitute a violation of
Sec 8(a)(5) Obviously the loss of 500 hours of work on the prototype
harmed Cedar Rapids employees who were laid off and who could have
performed that work Chairman Stephens would find a violation of Sec.
8(a)(5) in the unilateral removal of that work from the bargaining unit
because none of the reasons , other than wage rates, which the Respond-
485
2. The complaint also alleged that the Respond-
ent violated Section 8 (a)(1) by seven separate state-
ments of Cedar Rapids supervisory personnel, i.e.,
that Plant Manager McCafferty, at an employee
meeting , threatened employees with a loss of exist-
ing jobs if concessions were not supported; that
Powers, a supervisor , interrogated employees re-
garding concessions and threatened them with loss
of jobs ; that Chesmore , a supervisor, unlawfully in-
terrogated employees concerning their position on
concessions and threatened them with loss of work;
that Klingman, a supervisor, interrogated employ-
ees on their positions on concessions; that Uldrich,
a supervisor , threatened employees with loss of
work if concessions were not agreed to; that Hoot-
man, a supervisor , interrogated an employee con-
cerning his and other employees ' views on conces-
sions and threatened him with loss of employment
if concessions were not accepted ; and that Wolfe, a
supervisor , threatened employees with loss of jobs
if concessions were not accepted.
As noted above , Judge Norman did not set out
factual findings with respect to any of these alleged
statements . On remand , Judge Gershuny in his sup-
plemental decision made various findings on these
allegations . We agree with Judge Gershuny 's find-
ing that Wolfe and Chesmore 's statements violated
the Act and that McCafferty 's,7 Hootman's, and
Uldrich's8 remarks did not . Contrary to the judge,
however, we do not find that Powers' and Kling-
man's statements violated the Act.
Regarding Powers , the judge found that Powers
asked employee Brundrett "what did the guys out
in the shop" think of the concessions and expressed
the opinion that salaried employees were making
greater concessions than were hourly employees.
The judge found this inquiry violated Section
8(a)(1). We disagree . The record shows that con-
cessions were a common topic of conversation
around the plant . The record also shows that Brun-
drett was a union shop steward and that the nature
of the inquiry , which took place in Brundrett's
work area , was general and nonthreatening. Ac-
cordingly, we do not find this inquiry violated Sec-
ent offered as its entrepreneurial reasons for locating the production
work on the Sea Hawk at Bowling Green would apply to the removal of
the work on this prototype . Chairman Stephens would find that the deci-
sion to remove this particular work was clearly a mandatory subject of
bargaining under Otis
r In dismissing the allegation regarding McCafferty, we rely only on
the judge's finding that employee Brundrett's testimony on the point was
vague and uncertain. While the judge further found that employee Dusil
testified that no such threat was made , we note there were a number of
employee meetings and no evidence that Dusil and Brundrett attended
the same one . Thus, contrary to the judge 's indication , Dusil's testimony
is not necessarily inconsistent with that of Brundrett.
° We find it unnecessary to pass on the allegation regarding Uldrich
because the finding of such an additional violation would be cumulative
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion 8(a)(1). See, e.g., Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
The judge also found that Supervisor Klingman's
inquiry of employee Feiereisen regarding what
Feiereisen thought were the feelings of the employ-
ees about the concessions violated Section 8 (a)(1).
We do not agree . The record shows that the
remark occurred in a conversation described by
employee Feiereisen as "small talk" and was,
unlike Chesmore's remarks, not accompanied by
other, potentially coercive remarks . Accordingly,
we find this a general, innocuous inquiry which
does not violate Section 8(a)(1). See , e.g., Sunny-
vale, supra.
3. The complaint also alleged that the Respond-
ent violated Section 8 (a)(5) by engaging in bad-
faith bargaining during concession bargaining. In
this connection , the complaint further alleged that
the Respondent violated Section 8(a)(5) by failing
to provide the Union with certain requested finan-
cial information supporting the Respondent's re-
quest for concession bargaining and that the Re-
spondent engaged in direct dealing with the em-
ployees , evidenced both by holding meetings with
employees and by the employee interrogations and
threats discussed above.
Judge Norman dismissed these 8 (a)(5) allega-
tions . In so doing, the judge characterized the con-
cession bargaining as a "full and fair airing on a
wide variety of subjects on both sides " and found
that, despite the absence of any agreement on any
proposal advanced by either party, substantive
good-faith prevailed . The judge further found that
where, as here, the Respondent clearly indicated
that it could afford to meet its contract obligations
and would honor them even if the concession pro-
posals were not accepted, there was no obligation
to provide the Union with assertedly relevant fi-
nancial information. The judge also concluded that
there was no evidence that the Respondent by-
passed the Union and dealt directly with employ-
ees. Rather, the judge found that employee meet-
ings were not unusual occurrences and that the Re-
spondent sought and obtained the Union's permis-
sion to hold these employee meetings, each of
which was attended by at least one union officer.
We agree with Judge Norman's finding that the
Respondent did not engage in bad -faith bargaining
during concession bargaining for the reasons cited
in his decision. We also agree with his conclusion
that the Respondent did not independently violate
Section 8(a)(5) by refusing to provide the requested
financial information for the judge 's reasons as de-
scribed above ,9 and we agree with Judge Norman's
9 The General Counsel contends that this case is similar to Goodyear
Aerospace Corp., 204 NLRB 831 , enfd . in part, 497 F.2d 747 (6th Cir
dismissal of the direct dealing allegations. In dis-
missing the direct dealing allegations , we note the
evidence as found by the judge shows that the Re-
spondent 's meetings were held only after its pro-
posals were presented to the Union , that the Union
was informed of the Respondent's intent to hold
the meetings , and that the meetings were held in
the presence of Union officers . The evidence fur-
ther shows that at the meetings all the Respondent
did was to present the proposals as previously pre-
sented to the Union . Under these circumstances,
we find the meetings did not constitute unlawful
direct dealing.
As noted above, the complaint asserts that the al-
leged unlawful interrogations and threats , discussed
above , also constituted direct dealing in violation
of Section 8(a)(5). Judge Norman , however, failed
to make any specific findings regarding their
8(a)(5) aspects . The General Counsel excepts to the
judge's failure to make these findings . In her brief,
the General Counsel argues that by the alleged
8(a)(1) conduct the Respondent sought to obtain
employee support for its concession proposals di-
rectly . The General Counsel also argues that this
conduct not only constituted an independent viola-
tion of unlawful bypassing of the Union and direct
dealing with employees , but further evidenced
overall bad-faith bargaining on the part of the Re-
spondent.
In our above discussion , we have found that re-
marks made by Chesmore and Wolfe violated Sec-
tion 8(a)(1). We , however, have dismissed allega-
tions of bad -faith bargaining with respect to the
Respondent 's actual conduct during concession
bargaining, its failure to provide financial informa-
tion to the Union, and its holding of employee
meetings to discuss concession proposals . In these
circumstances and viewing the nature of the 8(a)(1)
violations we have found, we do not find these
8(a)(1) violations sufficient to establish direct deal-
ing or overall bad-faith bargaining.
4. Finally , the complaint alleged that the Re-
spondent violated Section 8(a)(3) and (1) under two
theories . First , it alleged that the Respondent vio-
lated Section 8(a)(3) under Milwaukee Spring I,
supra, 265 NLRB 206, where, as part of a plan to
1974), in which the Board found that the respondent violated Sec. 8(aX5)
and (1) by failing to provide requested financial information in connec-
tion with its request for concession bargaining . In Goodyear, the respond-
ent sought concession bargaining in an effort to remain competitive, but
did not indicate an affirmative intent to abide by the terms of the con-
tract in the event that concessions were not granted . Additionally , in pre-
senting its proposals at meetings with employees, the respondent in Good-
year represented to employees that it was engaged in a "profitless" oper-
ation and if it waited for the expiration of the current contract to discuss
proposed changes, there would be "no need for talking ." and that the
Union was unwilling to make the changes . Accordingly, we find Good-
year, supra , distinguishable from the instant case.
FMC CORP.
escape the economic obligations of a collective-bar-
gaining agreement , it transferred the Sea Hawk
project from a unionized to a nonunionized plant,
adversely affecting unit employees by the accom-
panying loss of work. The complaint also alleged
that the transfer of Sea Hawk independently violat-
ed Section 8(a)(3) and ( 1) because it was in retalia-
tion for the Union's refusal to agree to concession
proposals.
Judge Norman dismissed these 8 (a)(3) allega-
tions . In so doing, he distinguished this case from
Milwaukee Spring I, supra , finding that in this case,
unlike Milwaukee Spring I, lower labor costs were
only one of the reasons the Respondent advanced
for its decision to build the Sea Hawk at Bowling
Green. The judge further dismissed the independ-
ent 8(a)(3) allegation that the decision to produce
Sea Hawk was in retaliation for the Union's failure
to agree to concession proposals . In so doing, he
credited the testimony of the Respondent 's division
manager that the decision was made solely for busi-
ness reasons, i.e., higher productivity, lower scrap
costs, the fact that Bowling Green was the princi-
pal pedestal crane manufacturing site, and lower
labor rates , and was not related to the ongoing
concession bargaining which continued thereafter.
In connection with this allegation , the judge also
found that the various alleged job-loss threats and
interrogations by the Respondent 's supervisory per-
sonnel made in connection with the Sea Hawk de-
cision (as described above) did not truly reflect the
Respondent 's reasons for its Sea Hawk decision as
they were merely expressions of opinion by lower-
level supervisors which were not authorized by the
Respondent.
We agree with the judge that the various 8(a)(3)
allegations should be dismissed . In so doing, we
note that the 8 (a)(3) allegation based on the first
theory is derived from Milwaukee Spring I, which
was overruled in Milwaukee Spring II, to which we
adhere . Regarding the second 8(a)(3) theory of the
complaint, we adopt Judge Norman 's findings,
based in part on credited testimony , that the evi-
dence does not support a finding that the Respond-
ent sought to retaliate against employees by trans-
ferring the Sea Hawk crane work because of the
Union's failure to agree to the proposed conces-
sions. Finally, we also find that the two 8(a)(1) vio-
lations that we have found are insufficient to estab-
lish that the Respondent 's transfer of the Sea Hawk
crane was for an unlawful purpose.
B. Case 18-CA-7971
As noted above, the complaint alleged that the
Respondent violated Section 8(a)(5) and (1) and
Section 8(d) by failing to provide the Union with
487
an opportunity to bargain about its decision to
transfer the assembly and manufacture operations
of small crawler cable cranes (admittedly existing
bargaining unit work) from its Cedar Rapids plant
to its Bowling Green and Lexington , Kentucky
plants . The complaint further alleged that this
transfer violated Section 8(a)(3) and (1) by its ad-
verse effect on bargaining unit employees. The
complaint also alleged that the Respondent violated
Section 8(a)(5) and (1) by failing to bargain at the
Union's request about the effects of this transfer
and by failing to provide or to timely provide cer-
tain requested information pertaining to this trans-
fer decision and its effect on employees.
As noted above , Judge Norman dismissed this
complaint in its entirety , finding that the alleged
failure of the Respondent to bargain about the
transfer decision was barred by Section 10(b) and
that as the effects bargaining and information alle-
gations were derived from the related charge per-
taining to the transfer decision , that Section 10(b)
also precluded their consideration. In his supple-
mental decision , Judge Gershuny likewise failed to
make legal findings on the effects-bargaining issue
on the basis that the terms of the remand did not
give him the authority to do so . He also failed to
make full factual and legal findings regarding the
information request.
The following facts are relevant to our findings
on these decision bargaining , effects-bargaining,
and information request issues . The record shows
that on May 24 , 1982, the Respondent announced
that in light of the Company's reorganization and
pursuant to recommendations of a task force, the
assembly and manufacture of small crawler cable
cranes would be transferred beginning June 21,
1982, from Cedar Rapids to Bowling Green and
Lexington . On May 24, the Union served notice on
the Respondent that it would grieve the transfer
and it did so on June 3. On June 2 , 1982,10 the
Union, in writing, protested the transfer , requested
effects bargaining, and requested information
"which would help the Union to discuss this effect
properly." The Union , however, did not make a re-
quest to bargain over the transfer decision. On
August 6, 1982 , by which time the transfer of the
small crawler cable crane work had begun, the Re-
spondent sent the Union a letter with accompany-
ing documents in response to the Union 's June 2
letter . The Respondent, at the hearing , conceded
that no effects bargaining took place.
First, we agree with Judge Norman's dismissal of
the allegations pertaining to the Respondent's re-
fusal to bargain over the transfer decision. The
i0 The parties stipulated that the letter is misdated May 2. 1982
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel initially alleged two theories
under which the transfer decision violated Section
8(a)(5). ' In dismissing the first theory, we rely, as
we did in dismissing the complaint allegation con-
cerning the Respondent 's decision to manufacture
the Sea Hawk crane at its Bowling Green plant, on
Milwaukee Spring II, supra. Thus, where, as here,
the contract contains no provision which restricted
or otherwise preserved the performance of small
crawler cable crane work to the Cedar Rapids fa-
cility or restricted the Respondent's decision-
making regarding work relocation, we do not find
that the Respondent unilaterally modified the par-
ties ' contract in violation of Section 8(a)(5) and
Section 8(d) when it decided to transfer this work
to its Bowling Green and Lexington plants. Re-
garding the second theory, i.e., that the relocation
constituted a unilateral change in the employees'
terms and conditions of employment about which
the Respondent had to bargain, we find that even
assuming arguendo that the Union had a right to
bargain about the transfer decision, the Union
waived this right. Thus, we note that although the
Union received clear notice of the Respondent's
decision to transfer the assembly and manufacture
of the small crawler cable cranes from Cedar
Rapids, it did not request bargaining over this deci-
sion . Accordingly , we dismiss this allegation.""
Contrary to Judge Norman, however, we find
that effects-bargaining and information request
issues are separate issues involving independent
events.12 Thus, our dismissal of the allegation con-
cerning a failure to bargain over the Respondent's
decision to transfer bargaining unit work does not
preclude our consideration of an effects -bargaining
allegation on the same transfer issue . See, e .g., Otis
Elevator II, supra. Accordingly, based on the facts
set forth above, we shall now examine both the
timeliness of the charge regarding the effects-bar-
gaining and information request issues and the
merits of these allegations.
With respect to the effects-bargaining allegation,
we first find no merit to the Respondent 's conten-
tion that this complaint allegation is barred under
11 In light of our finding , we find it unnecessary to address the Re-
spondent 's contentions that the allegation pertaining to the transfer deci-
sion was precluded from consideration by Sec 10 (b); that the Union had
contractually waived its right to bargain about the issue ; or that the
matter should be deferred to an arbitrator 's decision favorable to the Re-
spondent . Further , in light of our dismissal of the 8 (a)(5) and 8(d) allega-
tions regarding the transfer, we also shall dismiss the derivative 8(a)(3)
allegation . Milwaukee Spring 11, supra at 604.
12 The Respondent contends that if consideration of the complaint is
not barred by Sec 10(b), the complaint should be dismissed in deference
to an arbitration award on the transfer decision issued in December 1983
As we find the effects-bargaining and information request issues are mat-
ters which warrant our independent consideration, we do not find merit
to the Respondent 's contention that they should be deferred to an arbitra-
tion award covering only the transfer decision.
Section 10(b). The record shows that the request
for effects bargaining occurred on June 2, 1982,
and that a charge alleging a failure to bargain over
the effects was filed December 1, 1982, within the
6-month period. Turning to the merits of the alle-
gation, we note that the Respondent concedes that
no effects bargaining took place.19 Accordingly,
we find that the Respondent violated Section
8(a)(5) and ( 1) in failing to accede to the Union's
request for effects bargaining.14
The record shows that the Union's information
request of June 2 listed 41 numbered items.15 Of
these, items numbered 32-33 and 37-41 appear to
relate to effects bargaining regarding the trans-
fer.16 The letter includes requests for seniority lists
"The Respondent contends that it was not obligated to bargain with
the Union regarding the effects of the decision to transfer the small
crawler cable cranes where , inter alia, the transfer had no detrimental
effect on the bargaining unit We note that the cases cited by the Re-
spondent involve subcontracting in accordance with past practice and
with a minimal effect on employee jobs . In contrast , the facts in this case
do not show a past history of subcontracting . Further , the transfer of
small crawler cable crane work constituted approximately 20 percent of
future bargaining unit work at Cedar Rapids Accordingly , we find these
cases inapplicable.
14 Although the Respondent concedes that no effects bargaining took
place , it suggests in its brief that the Union failed to act on the Respond-
ent's offer in its letter of August 6 to bargain about the matters relating to
the transfer Thus , the Respondent argues that the Union waived its right
to bargain over the effects of the decision.
The letter , in pertinent part , states.
The Company has met with the Union in the past to discuss the
subject of transfer of work and is ready to discuss at the Union's re-
quest any other subject that relates to the transfer of work and
which has impact on the bargaining unit personnel
We note , by its own language , the Respondent 's letter fails to respond
to or even acknowledge the Union 's previous request for effects bargain-
ing We also note that the letter was sent approximately 2 months after
the transfer had begun . Further , even if this letter were to be construed
as expressing the Respondent 's willingness to engage in effects bargain-
ing, we note, in view of our finding below , that the Respondent made
this offer at the same time it was unlawfully refusing to provide the
Union with requested information relevant to the effects of the work
transfer and thus precluded a meaningful opportunity to bargain . We thus
find that the Respondent 's letter did not satisfy its obligation to bargain
about effects and that the Union 's failure to respond to the Respondent's
letter did not constitute a waiver of its right to engage in effects bargain-
ing.
" s Judge Gershuny found that the Union requested 61 numbered items.
The letter introduced into evidence lists 41 items
1B The General Counsel contends , and the Charging Party does not
otherwise contradict , that the first 31 items pertain to the decision to
transfer the small crawler cable cranes . As we have dismissed the allega-
tion regarding the Respondent 's failure to bargain about the decision, we
find it unnecessary to discuss items 1 -31 in terms of their relevance or to
pass on whether the Respondent complied with the Union 's request for
information on these items
Further , items 34-36 in the June 2 letter refer to information about
toxic substances , about substances subject to Federal OSHA or state
OSHA standards , and reports and/or analyses regarding employee health
matters . The complaint is narrowly drafted to allege as unlawful the re-
fusal to supply information concerning the effects of the decision to
transfer the work As we do not construe items 34 -36 to relate to that
decision , we do not further address these items
Finally , the record shows that in addition to its information request of
June 2 , the Union made requests for timestudies The record also shows
that the Respondent subsequently provided the Union with timestudies.
We find it unnecessary to pass on whether the material requested was rel-
evant to effects bargaining or whether the Respondent satisfied its obliga-
Continued
FMC CORP.
and lists of any employees on layoff and sick leave.
The letter also makes inquiries concerning employ-
ee transfer rights , job assistance , relocation benefits,
and severance settlement . The record also shows
that the materials signed by its personnel director
and sent by the Respondent to the Union on
August 6 included a seniority list of employees and
information concerning retirees . This letter, howev-
er, informed the Union that lists regarding employ-
ees on sick leave or eligible for workers ' compensa-
tion should be requested from the labor relations
manager and further that, as layoff lists were regu-
larly provided to the Union, the Union should look
to its own records for this information . The letter
provided no additional information requested by
the Union regarding effects bargaining.
It is well established that an employer has a duty
to furnish a union , at its request , necessary and rel-
evant information to enable it to carry out its obli-
gations as the employees ' bargaining representative.
Further, under the standard of relevancy applied
by the Board and the Courts, it is sufficient if the
information requested is shown to be probably or
potentially relevant . See NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967).
In this case , the Union 's letter clearly requested
effects bargaining and also clearly requested infor-
mation which would be relevant to bargaining
about effects . The information requested included
employee lists , including seniority and lay off, and
lists of employees on sick leave . The letter further
requested , inter alia, information regarding whether
the Company would provide severance pay and
job assistance . There can be no dispute, and we so
find, that these subjects are clearly relevant to the
effects of the Respondent's transfer decision and in-
formation on them would be relevant and neces-
sary to the Union to perform its statutory repre-
sentative function.
Having determined that the requested informa-
tion is relevant , we shall now examine the question
of whether the Respondent complied with the re-
quest . In this regard, we note that "[i]t is an em-
ployer's obligation to provide relevant and material
information to the collective-bargaining representa-
tive , to make a reasonable effort to secure the re-
quested information , and if unavailable , explain or
document the reasons for the asserted unavailabil-
ity [footnote omitted]." Goodyear Atomic Corp., 266
NLRB 890, 896 (1983).
The record shows that the Respondent provided
the Union with a seniority list, a retiree list, and a
tion to provide the information requested as it does not appear from the
language of the complaint itself or from the General Counsel's and the
Charging Party's arguments that a failure to provide the timestudies was
a subject of the complaint
489
cost benefits list in its August 6 response, sent some
2 months after the Union 's request . The Company
did not answer or even acknowledge the Union's
questions regarding matters such as severance pay
or job assistance . Further, in response to several of
the union questions , the Respondent simply re-
ferred the Union to another department in the
Company.
We thus find that , in most respects, the Respond-
ent's letter did not respond adequately to the
Union's request for information . We further find
that when the Respondent provided the informa-
tion sought, it provided this information in an un-
timely manner.
The Respondent contends that it complied with
the request for information in good faith and
within a reasonable amount of time , given that it
was overburdened with requests for information
and it was involved in court litigation and with an-
other major layoff unrelated to this case . We find
that these reasons do not excuse the Respondent's
delay in responding to the Union 's information re-
quests . We further note that with respect to the
Respondent's merely referring the Union to an-
other company department as to certain requested
information , it offers no explanation why it could
not have taken steps to acquire the information or
have informed the Union sooner of the need to
obtain the requested information from another de-
partment . Moreover, the fact that the Respondent
was involved with other matters does not explain
why it did not respond in any way to certain of the
requests made by the Union.
In summary , having found that the Respondent's
August 6 reply to the Union 's information bargain=
ing request was both untimely and inadequate and
that the Respondent has offered no reasonable ex-
planation for its delay in providing the information
or failure to do so, we find that the Respondent
violated Section 8(a)(5) and ( 1). See, e.g., Florida
Steel Corp ., 235 NLRB 941 (1978).
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
Specifically , having found that the Respondent
unlawfully refused to bargain with the Union about
the effects of its decision to transfer small crawler
cable crane work out of the Cedar Rapids bargain-
ing unit, we shall accompany our order to bargain
with a limited backpay requirement designed both
to make whole employees for losses, if any, suf-
fered as a result of the violation and to recreate in
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
some practicable manner a situation in which the
parties' bargaining position is not entirely devoid of
economic consequences for the Respondent. 117 We
shall do so in this case by requiring the Respondent
to pay backpay to its employees in a manner analo-
gous to that required in Transmarine Corp., 170
NLRB 389 (1968), and Interstate Tool Co., 177
NLRB 686 (1969). Thus, the Respondent shall pay
employees backpay at the rate of their normal
wages when last in the Respondent 's employ, from
5 days after the Board's decision until the occur-
rence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement
with the Union on those subjects pertaining to the
effects on its employees of the decision to transfer
work out of the bargaining unit ; (2) a bona fide im-
passe in bargaining ; (3) the failure of the Union to
request bargaining within 5 days of this decision, or
to commence negotiations within 5 days of the Re-
spondent 's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum
paid to any of these employees exceed the amount
he would have earned as wages from the date on
which he was laid off to the time he was recalled
or secured equivalent employment elsewhere, or
the date on which the Respondent shall have of-
fered to bargain , whichever occurs sooner; provid-
ed, however, that in no event shall this sum be less
than these employees would have earned for a 2-
week period at the rate of their normal wages
when last in the Respondent 's employ. See Uncle
John's Pancake House, 232 NLRB 438 (1977).
Additionally, the record shows that the Re-
spondent has permanently closed its Cedar Rapids,
Iowa plant and has laid off all unit employees. Ac-
cordingly, in lieu of posting , we shall order the Re-
spondent to mail a copy of the attached notice to
each bargaining unit employee who was on layoff
status or on the Respondent 's payroll at its Cedar
Rapids, Iowa plant as of the date the Respondent
permanently closed its plant , at his or her last
known address , as disclosed in the Respondent's
records.
ORDER
The National Labor Relations Board orders that
the Respondent , FMC Corporation, Cable Crane
and Excavation Division , Cedar Rapids, Iowa, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding their or
other employees' sentiments about the Respond-
ent's request for certain midterm contractual con-
cessions or threatening employees with job loss if
the Union fails to agree to the requested conces-
sions.
(b) Failing to bargain with the United Automo-
bile, Aerospace and Agricultural Implement Work-
ers of America, UAW, as the exclusive representa-
tive of its unit employees , over the effects on unit
employees of its decision to transfer bargaining unit
work (small crawler cable cranes) from its plant at
Cedar Rapids , Iowa, to its Bowling Green and
Lexington, Kentucky plants.
(c) Failing to comply in a timely and adequate
manner with the Union 's request for information
relevant and necessary to the Union 's functioning
as the collective-bargaining representative of the
unit employees concerning the effects of the Re-
spondent's decision to transfer bargaining unit
work.
(d) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request , bargain with the Union over the
effects on unit employees of the Respondent 's deci-
sion to transfer unit work (small crawler cable
cranes) from its Cedar Rapids , Iowa facility to its
Bowling Green and Lexington , Kentucky plants.
(b) Pay the employees who were laid off as a
result of the work transfer for the period set forth
in the remedy section of the decision.
(c) Furnish the Union with the information it re-
quested concerning the effects of the Respondent's
decision to transfer bargaining unit work.
(d) Mail a copy of the attached notice marked
"Appendix" 18 to each bargaining unit employee
who was on the Cedar Rapids , Iowa plant payroll
or layoff status on the date final notice was given
of the plant 's closure. Such notice shall be mailed
to the last known address of each employee.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
17 In its motion to dismiss , the Respondent proferred evidence of a ter-
mination agreement executed between the parties and dealing , inter alia,
with the effects of the Cedar Rapids plant 's permanent closing on June
28, 1984 . We find that this termination agreement dealing with the effects
of the plant 's closing in June 1984 does not preclude our remedying the
Respondent 's failure to bargain about the effects of its decision to transfer
certain unit work in May 24, 1982.
18 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
FMC CORP.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees regard-
ing their or other employees ' feelings about re-
quested economic concessions or threaten our em-
ployees with job loss if the Union fails to agree to
the requested concessions.
WE WILL NOT fail to bargain with United Auto-
mobile , Aerospace and Agricultural Implement
Workers of America, UAW, as the exclusive repre-
sentative of our unit employees over the effects of
our decision to transfer bargaining unit work (small
crawler cable cranes) from our Cedar Rapids, Iowa
plant to our Bowling Green and Lexington, Ken-
tucky plants.
WE WILL NOT fail to comply in a timely and
adequate manner with the Union's request for in-
formation relevant and necessary for the Union's
functioning as the collective -bargaining representa-
tive of the unit employees concerning the effects of
our decision to transfer bargaining unit work.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request by the Union, bargain col-
lectively with it, over the effects of our decision to
transfer unit work from our Cedar Rapids, Iowa
plant to our Bowling Green and Lexington, Ken-
tucky plants.
WE WILL furnish the Union with the information
it requested concerning the effects of our decision
to transfer bargaining unit work.
FMC CORPORATION, CABLE CRANE
AND EXCAVATOR DIVISION
James L. Fox, Esq., for the General Counsel.
Richard H. Schnadig, Esq. and Bruce R. Alper, Esq.
(Fedder, Price, Kaufman & Kammholz), of Chicago, Il-
linois, for the Respondent.
Jerome Schur, Esq. (Katz, Friedman, Schur & Eagle), of
Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge. This
case was tried on March 14-17 and May 24 , 1983, in
Cedar Rapids , Iowa, pursuant to an order consolidating
491
complaints issued by the Regional Director for Region
18 on February 2, 1983.
The complaint in Case 18-CA-7654 is based on a
charge filed by United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW (the
Union) on April 5, 1982.1 On November 26, a complaint
was issued alleging that the FMC Corporation (Respond-
ent) violated Section 8 (a)(1), (3), and (5) of the National
Labor Relations Act (the Act) by unilaterally transfer-
ring the manufacture of a pedestal crane known as "Sea
Hawk" from Cedar Rapids, Iowa, to Bolling Green,
Kentucky. That action is separately alleged to be in
derogation of Respondent 's duty to bargain , an abroga-
tion of a collectively bargained wage schedule and in re-
prisal for the Union's failure to agree to "concessions"
sought by Respondent beginning on or about March 31.
The alleged transfers are also claimed to have resulted in
the layoff of approximately 100 bargaining unit employ-
ees. The complaint further alleges that Respondent en-
gaged in "surface bargaining" with respect to conces-
sions, failed or refused to furnish relevant information
sought by the Union in the course of such bargaining
and threatened , surveilled , and interrogated employees
and thereby bypassed the Union as the collective-bar-
gaining representative . All such conduct is alleged to
have occurred between approximately March 26 and
April 6.
The complaint in Case 18-CA-7971 issued on Febru-
ary 7, 1983, is based on a charge filed by the Union on
December 1. That complaint alleges violations of Section
8(a)(1), (3), and (5) because of Respondent 's alleged fail-
ure to bargain over a transfer decision , the claimed ef-
fects thereof on unit employees , the abrogation of collec-
tive-bargaining provisions, and Respondent 's delay in
furnishing, and refusal to furnish , purportedly relevant
information sought by the Union after it was informed of
the transfer decision.
The Regional Director initially deferred consideration
of the December 1 charge under Dubo Mfg. Corp., 142
NLRB 431 (1963), because the issue of Respondent's
contractual authority to transfer work was then pending
before arbitrator Burton I. Luskin. On December 20, Ar-
bitrator Luskin issued his decision and found that the
company had such express contractual authority . On Jan-
uary 25, 1983, the Regional Director revoked the Dubo
deferral, ruling that the arbitrator's decision was "repug-
nant" to the Act under Spielberg Mfg. Co., 112 NLRB
1080 (1955). Respondent contends that the charge in
Case 18-CA-7971 was time-barred under Section 10(b)
of the Act.2 In both complaints, the General Counsel,
' All events occurred in 1982 unless otherwise stated
2 Respondent filed three pretrial motions. motion to dismiss , motion to
sever, and motion to strike , contending that Respondent 's substantive and
procedural due-process rights were violated by . ( 1) the issuance of com-
plaints in both cases based on a new and enlarged Board doctrine or
theory (see Milwaukee Spring Division , 265 NLRB 206 (1982)), which did
not exist at any time when Respondent allegedly engaged in its supposed-
ly illegal conduct , and (2) the issuance of a complaint in Case 18-CA-
7971 when the Regional Director had failed or refused to establish juris-
diction over the underlying unfair labor practice charge pursuant to Sec
10(b) of the Act, and when the undisputed facts and law presented to him
showed the absence thereof.
Continued
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inter alia, seeks return of the work allegedly transferred
from Cedar Rapids.
On the entire record in this case , including my obser-
vation of the demeanor of the witnesses, and a thorough
consideration of the briefs submitted by the General
Counsel , Respondent , and the Union , I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges and Respondent admits that it is
an employer engaged in interstate commerce and that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Decision to Manufacture the Sea Hawk Crane
at Bolling Green , Kentucky
FMC (Respondent), a diversified manufacturing com-
pany , produces cable cranes , pedestal cranes, hydraulic
cranes, and excavators at plants located in Cedar Rapids,
Iowa, Bolling Green and Lexington , Kentucky, and
Woodstock, Canada . Cranes and excavators may be
mounted either on tracks (or crawlers) or on truck
bodies and are used in heavy construction . Pedestal
cranes are produced primarily at Bolling Green and are
mounted on stationary platforms and used primarily in
offshore oil drilling . The Union has represented produc-
tion and maintenance employees at Cedar Rapids since
1950 and at Woodstock, Canada, since the mid- 1960s.
The employees of the Kentucky plants are not represent-
ed by any union.
It is undisputed that although for several years Re-
spondent successfully manufactured and sold pedestal
cranes used in offshore oil drillings , in 1981 , because of a
demand for a lighter, more weather resistant hydraulical-
ly controlled crane to be mounted on offshore drilling
platforms, the Company's sale of pedestal cranes used in
offshore oil drillings fell sharply.
Cable crane and excavator division managements did
not consider a specific product to fill this market void
until November 30, 1981. On that day , Product Manager
Frank Foster presented a 12-step program for the design,
engineering , and manufacture of Sea Hawk to Division
Manager Robert Price and his staff. Price approved both
the Sea Hawk design and its production plan. A short
time later he recommended it to Vice President and
Group Manager John McKeon who also approved it. No
decision was made at either meeting with respect to
where the Sea Hawk was to be manufactured.
After hearing arguments on those motions, the motions to strike and
sever were denied and ruling on the motion to dismiss complaint in Case
18-CA-7971 was reserved.
a Until May 1 , a divisional operation existed between the companies
cable crane and excavator division , whose headquarters and engineering
facilities were in Cedar Rapids, and the hydraulic crane division, which
was located in Lexington , Kentucky . The other plants comprised in the
cable crane and excavator division were Bolling Green, Kentucky, and
Woodstock , Canada.
Division Manager Price testified that although Cedar
Rapids had greater knowledge of hydraulic principles he
preferred the Bolling Green facility because it was al-
ready the principal manufacturing location for almost all
the Company 's pedestal cranes, was a more productive
and efficient facility than Cedar Rapids, and had lower
labor rates. Price further testified that he made no selec-
tion at that time because Bolling Green , unlike Cedar
Rapids, was then operating at or near capacity and he
feared that it might not be able to manufacture Sea
Hawk on schedule if that product obtained the market
success Price anticipated.
Bolling Green 's workload diminished significantly in
January and February due to a general slackening in
demand for all company products caused by a near de-
pression in the construction industry . By March 23, pro-
duction or build schedule for Bolling Green showed that
substantial layoffs would be required unless work could
be found for the plant.
Price further testified that layoffs at Bolling Green
would result in a permanent loss of a skilled work force.
He said he preferred Bolling Green because of the qual-
ity, productivity , and other cost advantages it had over
Cedar Rapids . He said that sometime in the week of
March 29 , he made the decision to assign production of
Sea Hawk to the Bolling Green plant and notified that
plant 's manager of his decision . Price further testified
that he informed the rest of his staff on April 5 . There is
no dispute that at the time of Price's decision , concession
bargaining, which had begun March 26 , was then going
on and Price was disappointed in its progress.
Also undisputed is the fact that in the several months
preceding Price's decision , but apparently not known or
authorized by him , preparations were being made to
produce one Sea Hawk prototype at Cedar Rapids,
where such prototypes normally are built and tested.
The evidence showed that some structural changes were
made in the old prototype area located on Bolling Street
in Cedar Rapids . It is also undisputed that the Sea Hawk
is similar in design to other models manufactured at Re-
spondent 's Cedar Rapids facility and its Bolling Green
facility and that both facilities had the capability of pro-
ducing this new crane . Storage bins were cleared for Sea
Hawk parts , a few of which were ordered and received,
and a "A-I" code or labeling system was developed in
order to expedite the handling of Sea Hawk parts and
equipment . Also on March 19 , during a management
union meeting , Frank Foster and Phil McCafferty elabo-
rated on the manufacturing and marketing concepts un-
derlying Sea Hawk.
Despite such preparations and expectations created by
them, the only Sea Hawk produced at all in 1982 was a
prototype manufactured at Bolling Green , Kentucky,
months after the charge and complaint in Case 18-CA-
7654 was filed . The work thereon required 500 "standard
man-hours."a
"Standard man-hours" is the time it would take one employee work-
ing 100-percent efficiency to perform assigned work during a measured
hour. The Company keeps no record of actual hours worked but the evi-
dence shows that Bolling Green, Kentucky plant productivity is approxi-
mately 85 percent of standard.
FMC CORP.
The General Counsel contends that Respondent had
sufficiently committed the Sea Hawk to Cedar Rapids to
give rise to a claim that it constituted bargaining unit
work , that Respondent relocated this work in derogation
of its bargaining obligations under the Act, and that
Cedar Rapids employees were adversely affected as a
consequence thereof. The General Counsel relies on the
following to support its contention : What the Union and
employees were told concerning the proposed produc-
tion of the Sea Hawk ; what preparatory measures were
taken at the Cedar Rapids facility in anticipation of the
Sea Hawk production ; and what the Union and employ-
ees were told at the time tie decision to produce the Sea
Hawk in Bolling Green , Kentucky , was announced.
The Union first learned about the Sea Hawk crane at a
meeting held on March 19 . Respondent 's representatives
at that time were Frank Foster, product development
manager, and Phil McCafferty , plant manufacturing man-
ager for the Cedar Rapids facility.5 During that meeting
Foster showed the union representatives a model of the
Sea Hawk and told them it would be built in the "S
Bay" of the old prototype building . Foster also told the
union representatives that it was Respondent 's intention
to get the Sea Hawk off the drawing board and into pro-
duction as soon as possible . 6 In order to accomplish this,
Respondent intended to speed up production by produc-
ing more parts itself rather than buying them from sup-
pliers . At the meeting McCafferty said that Sea Hawk
parts would be given A-1 designation (would receive pri-
ority), and that Respondent would begin manufacturing
the parts "before the ink was even dry on the blueprint."
McCafferty also stated that because of a downturn in
work , this would be an opportune time to build a Sea
Hawk at Cedar Rapids and, using an overhead projector,
gave an elaborate presentation on the Sea Hawk. Em-
ployees McDowell and Tollefson testified that they and
other employees were told by McCafferty , in the pres-
ence of Ron Weaver , division manufacturing manager,
that the Sea Hawk would be built in Cedar Rapids.
McDowell further testified that McCafferty stated that
production would begin within the next few weeks or
months. Tollefson testified that Foreman Igou told him
that cabs for the Sea Hawk would be built in the "S
Bay" of the old prototype building.'
B. Conclusions with Respect to the Decision to Build
the Sea Hawk at Boiling Green
It is not disputed that although the Sea Hawk is basi-
cally a pedestal crane hydraulically operated as are other
cranes manufactured at both Cedar Rapids and Boiling
Green , it is a new product line. That particular product
had not previously been produced at Cedar Rapids or
anywhere else until after the charge in this case was
5 Neither McCafferty nor Foster testified at the hearing.
6 The proposed building schedule indicates that a prototype was to be
completed by June 1 , and that seven machines were to be shipped by
February 28, 1983.
T It should be noted that at the time of the decision to manufacture the
Sea Hawk in Boiling Green the manufacture of the prototype had not
begun in Cedar Rapids . Wage rates in Boiling Green were roughly $3.50
per hour less than in Cedar Rapids.
493
filed . No production work was actually performed on it
at any time at any plant.
The Supreme Court 's decision in Fibreboard Corp. v.
NLRB, 379 U . S. 203 ( 1974), and decisions after that have
held that work "transferred ," "relocated ," or "subcon-
tracted" and concerning which decision bargaining is re-
quired must be existing bargaining unit work . Even under
Milwaukee Spring , supra, there was a relocation of sub-
stantial and significant amounts of existing bargaining
unit work (assembly operations).
There is no duty to bargain where no bargaining unit
work existed at.the time the decision was made :-The de-
cision was about placement of future manufacturing
work and I am aware of no case that has ruled that in
those circumstances an employer must bargain about
such a decision . To require advance union approval for
such a decision would invite direct union participation in
fundamental management decisions respecting the
growth and direction of an enterprise and would give
the Union a veto over those decisions at least during the
life of a collective -bargaining agreement.
The fact that Cedar Rapids employees believed it
would be built in Cedar Rapids based on the statements
and actions of responsible managers , anticipatory prep-
arations, and acknowledged capacities in personnel and
equipment to produce it does not in itself create a duty
to bargain . The Board has never equated dissappointed
expectations with an actual alteration in wages, hours,
and terms .and conditions of employment, the only statu-
tory subjects over which bargaining is mandatory. More-
over , the Board has held that no bargaining obligation
can be imposed unless the employer 's decision results in
a real change in employment circumstances that are sig-
nificantly detrimental to unit employees. See, e.g., Kenne-
cott Copper Corp., 148 NLRB 1653 ( 1964); Rochester Tele-
phone Corp., 190 NLRB 161 (1971).
Furthermore , the General Counsel has failed to prove
that the Sea Hawk decision resulted in the layoff of "ap-
proximately 100 employees" as alleged . At best, if any-
thing was lost, considering the evidence that Bolling
Green and not Cedar Rapids was the established manu-
facturing site for most of FMC's pedestal cranes, and
Cedar Rapids, the headquarters of division engineering,
was the site for prototype production, it was the loss of
work on the manufacture of one prototype crane. Em-
ployees were informed that only one Sea Hawk proto-
type model would be built there . Therefore, the most
that would be lost would be the 500 standard man-hours
or, given Bolling Green 's 85-percent productivity level,
approximately 565 actual man-hours of work-8
The evidence also indicates that because of the lower
cost of production at Bolling Green, it was more eco-
nomical to produce Sea Hawk there than at Cedar
Rapids . The General Counsel's contention that the deci-
sion to place the Sea Hawk production in Bolling Green
was in retaliation for the Union 's failure to agree to con-
cessions, which will be discussed later in this decision, is,
inter alia, rebutted by the evidence that the concession
8 I do not consider such a loss to be a significant detriment to employ-
ees as required in the cases cited supra
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discussions continued for at least four more sessions
(April 7, 8, 12, and 15) after Price announced the deci-
sion to produce Sea Hawk at Boiling Green . There is
also evidence that at the time of the decision , plant man-
agement at Cedar Rapids was actively engaged in seek-
ing FMC and non-FMC contracts for the Cedar Rapids
plant.
In sum , we have here a decision to build a new prod-
uct line at a particular location rather than at another,
rather than a transfer of bargaining unit work , despite
the expectations and preparations without any actual
production and at most a de minimis effect on the bar-
gaining unit employees . In the circumstances, I find that
there was no duty to bargain over the decision to manu-
facture the Sea Hawk crane at Respondent 's Boiling
Green plant and, accordingly , I shall recommend the dis-
missal of those allegations of the complaint.
C. The Alleged 8(a)(1) and (3) Allegations Concerning
the Sea Hawk Decision
According to the evidence , the Sea Hawk decision did
not result in any employee terminations , denials of rein-
statements , or effects on the bargaining unit employees,
as was the case in Milwaukee Spring, supra . Accordingly,
in agreement with the Respondent , I find that the conse-
quences of this Sea Hawk decision on unit employees
were "either totally speculative and immeasurable or de
minimis." Moreover, the employer's decision in Milwau-
kee Spring, supra, though one based on economics, was
influenced almost entirely by the lower labor rates at the
nonunion facility . The Board held that, for that reason,
the relocation constituted a repudiation of a negotiated
wage schedule. In the instant case , however, lower wage
rates was one of many factors influencing the decision of
Division Manager Prices who testified that higher pro-
ductivity and lower scrap costs at Bolling Green were
significant considerations as was Bolling Green 's estab-
lished expertise as the principal pedestal crane manufac-
turing site and his fear that layoffs at Bolling Green
would lead to permanent loss of skilled employees to
other local enterprises. In other words , lower labor rates
was only one of many reasons that Bolling Green was
selected over Cedar Rapids.
D. The Alleged Retaliatory Motive for not Agreeing to
Concessions
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) in that the Sea Hawk decision was made in
reprisal for the Union 's failure to agree to concessions.
As previously mentioned , employees of Respondent's fa-
cilities in Bolling Green and Lexington accepted the con-
cessions that the employees at Cedar Rapids rejected.
Price admitted that the request for concession emanated
from him , that he received periodic reports from J. D.
Lewis concerning the status of negotiations of Cedar
Rapids, that he was very disappointed that Cedar
Price testified in a positive and unhesitant manner . The fact that he
was no longer employed by FMC places him in a category of a some-
what disinterested witness. His testimony was not controverted but rather
supported by other evidence of record which influences favorably his
credibility.
Rapids' employees refused what other employees accept-
ed, and that the disparity in wage rates was a factor in
the ultimate decision to produce the Sea Hawk in Boll-
ing Green . Price, however, denied any connection
among the concessions, negotiations , and decision. Price
testified that he made the decision during the week of
March 23 , that the Union flatly rejected any economic
concessions on March 26 , and that the decision was com-
municated to Bolling Green officials during the week of
March 29 . In sum , the General Counsel contends that the
Company's articulated business reasons are a pretext to
camouflage the Company 's retaliatory motive . That con-
tention is based almost entirely on the timing of Price's
decision in relation to apparently stalemated concession
meetings . The evidence also shows however, that at the
same time that Price made the Sea Hawk decision, other
of Respondent 's managers were making efforts to bring
work into Cedar Rapids from other companies and FMC
divisions . Union witness Dusil testified that he attended
the April 7 meeting and that McCafferty spoke about his
efforts to bring work from other companies including
Gardner-Denver , and that at that time the Company had
decided not to produce the Sea Hawk in Cedar Rapids.
When such alleged retaliatory treatment of employees is
coupled with evidence of favorable or beneficial conduct
Board cases have held no reprisal was involved. See
Service Spring Co., 263 NLRB 812 (1982); Rice Food Mar-
kets, 255 NLRB 884 (1981 ). I am constrained to conclude
that the General Counsel 's alleged retaliation against the
Union for refusing to agree to concessions was the
motive behind the Sea Hawk decision must fall in view
of the evidence that the Respondent made efforts at the
same time of the Sea Hawk decision to secure work for
its Cedar Rapids plants.
As for the interrogation by foremen and other supervi-
sors and other statements concerning connecting the Sea
Hawk decision with the Union 's refusal to agree to con-
cessions, I am not persuaded that Respondent either au-
thorized or condoned such lower echelon people to
make such statements nor do I believe that the remarks
truly reflected Respondent's reasons for its Sea Hawk de-
cision. Moreover, the lower echelon supervisory person-
nel were as anxious to have the Sea Hawk built in Cedar
Rapids to protect their own jobs as were the rank-and-
file employees . I view their remarks as merely expressing
their individual opinions as well as indicating their frus-
trations over the decision to build the Sea Hawk in Boll-
ing Green and not Cedar Rapids . I shall therefore rec-
ommend the dismissal of the 8(a)(3) allegation with re-
spect to the interrogations and remarks by the superviso-
ry personnel concerning the Sea Hawk decision.
1. The concession meetings
On or about March 23 , Respondent instituted a wage
freeze and benefits reduction for salaried employees at all
plants and for hourly employees at Bolling Green and
Lexington , Kentucky. Such became effective on April 1.
At the same time Respondent sought the comparable,
economic, and certain noneconomic changes from the
Union for both the Cedar Rapids and Woodstock,
Canada plants. An initial eight-point proposal was pre-
FMC CORP. 495
pared by J. D. Lewis, Cedar Rapids' director of person-
nel, and presented by him at the outset of concession
meetings . The first three proposals were purely econom-
ic and involved freezes on wages and "COLA" and the
elimination of personal days off. The balance of the re-
quest involved noneconomic issues effecting plant pro-
ductivity . The concession meetings took place in seven
separate sessions from March 26 through April 15.
Respondent and the Union have been parties to succes-
sive bargaining agreements , the most recent of which is
effective by its terms from April 1, 1981, until April 1,
1984. The agreement applies to employees employed at
two plants located in Cedar Rapids.
ment , but, instead , sought to obtain temporary economic
and noneconomic relief in order to make Cedar Rapids
competitive . That remained the Company's position with
respect to similar union requests at all subsequent meet-
ings.
3. The March 29 meeting
Lewis reviewed the eight-point concession proposal
and then discussed the relatively sudden increase and
available operating capacity at Bolling Green due to
order cancellations and its implications for the higher
cost and less efficient Cedar Rapids plant.l o
2. The March 26 meeting
On March 26 a meeting was held between representa-
tives of the Respondent and the Union . The Union was
informed the sales prospects were bleak and that conces-
sions were necessary in order for the Cedar Rapids facili-
ty to compete with other clients within the corporation
and with outside competitors . At the conclusion of the
meeting, Respondent proposed , and the Union agreed,
the Respondent be permitted to meet with the employees
and inform them of conditions in the marketplace. At no
time did the Union agree that Respondent could meet di-
rectly with employees to discuss proposed concessions
and contract modifications . Bill Stewart, the Union's
International representative , informed Respondent's rep-
resentatives that in the absence of financial data disclos-
ing the need for concessions, the Union would not dis-
cuss economic matters further but would be willing to
discuss noneconomic matters.
In attendance at that meeting , besides Bill Stewart,
was James Hurtt , then local president of the Union, who
acted as chief spokesman for the union negotiating com-
mittee . Stewart appeared at the first meeting and at the
final meeting only. J. D. Lewis acted as the principal
company spokesman at all the meetings. Also present on
behalf of Respondent was Ronald Weaver , division man-
ager of manufacturing . Lewis and Weaver spoke initially
about the cost-saving instituted for salary and nonunion
hourly employees and the glum outlook facing both the
Company and its industry . Lewis then stated that the
Company was seeking comparable concessions at Cedar
Rapids . Stewart responded saying that when companies
request concessions, it is the UAW policy and practice to
request financial information supporting the need for
same. Steward then requested it. Lewis replied that
FMC was not asking for concessions because it could not
afford to meet the contract terms, that if the Union did
not agree to economic concessions, the Company
"would honor the contract" and further, if the Union
preferred to talk about noneconomic matters, the Com-
pany would do that instead . That remained the Compa-
ny's position with respect to financial information
throughout concession meetings.
Stewart asked if the Company would consider certain
quid pro quos for concessions and mentioned such mat-
ters as profit sharing, a layoff moratorium , and a guaran-
tee that work not be transferred from Cedar Rapids in
the future. Lewis repeated that the Company was not in-
terested in reopening the collective -bargaining agree-
4. The meetings of March 30 and April 7, 8, 12,
and 15
The meetings after March 29 followed somewhat the
same pattern as the earlier meetings without reaching
agreement on any of the concession requests or other
matters . The Union refused to deviate in any respect
from the contract and the Company refused to entertain
requests for financial information or to expand discus-
sions to include fringe benefits such as profit sharing,
early retirement , or a moratorium on layoffs and trans-
fers.
After the March 30 meeting , the Union at the Compa-
ny's request agreed to and distributed to its members
copies of FMC's modified five-point concession proposal.
The Union did not bring this proposal to a membership
vote.
5. The alleged refusal to bargain in good faith
during concession meetings
The complaint in Case 18-CA-7654 alleges, in effect,
that Respondent 's overall conduct, and particularly its
refusal to provide relevant financial information and to
consider the Union's proposals, constitute the type of
bad-faith bargaining prohibited under Section 8(d) and
Section 8(a)(5) and (1) of the Act.
Section 8(d) of the Act expressly relieves both parties
to a collective-bargaining agreement of any obligation to
bargain concerning modifications that are to be effective
prior to expiration of the agreement . In the instant case,
Respondent , during the first year of a 3-year agreement,
10 The Union never asked for any financial information or other data
to buttress the comparisons that McCafferty made at that meeting be-
tween the costs at Bolling Green and Lexington and Cedar Rapids. How-
ever, Union President Hurtt questioned the statements or stressed that the
Kentucky plants were nonunion and naturally less costly for that reason.
Hunt then referred to recent Ford and General Motors settlements
asking whether the Company would negotiate over profit-sharing and
similar matters and suggested the Company undertake further cutbacks in
its salaried work force. Lewis declined. Lewis then said the contract was
still in effect and would not expire until April 1984. The Union then re-
peated its request for general financial information and Lewis again re-
fused stating that the books would not be opened and that there would
not be any opening of the contract. He further stated that to open books
was saying that they cannot financially meet their obligations under the
contract and that the Respondent was not saying that, that they could
meet their financial obligations under the contract and that was not the
issue at hand.
On either March 29 or the day after the Respondent altered its eight-
point concession proposal and presented a five-point proposal instead. It
modified its wage freeze proposal and three of the productivity requests.
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposed that the Union accept certain concessions and
contract modifications . The Union , of course , could have
refused to consider or discuss such matters . However,
faced with representations that concessions were neces-
sary for survival and to remain competitive , the Union
met with Respondent and seriously considered its pro-
posal . Respondent refused , however , to provide the
Union with what the General Counsel considers the in-
formation necessary and relevant to the Union 's evalua-
tion of Respondent 's claims . The Respondent, on the
other hand , stated its position clearly and emphatically
that it could afford to continue with the existing contract
and that the financial condition of the Cedar Rapids
plants was not relevant and, accordingly , refused to pro-
vide the financial information requested by the Union.
I am persuaded by the evidence that the Company
acted with as much "good faith" as the Union . With re-
spect to the allegation of surface bargaining , the evi-
dence shows that seven separate concession meetings
were held within less than a 3-week period and apparent-
ly all but one were considerably lengthy . The Interna-
tional representative was invited by the Company to
attend and did participate in the first and last meetings.
An examination of the transcribed minutes of these meet-
ings shows that each party listened to the concerns about
concession proposals of the other . The Union discussed
the 4-day work schedule , the pay raise for and layoffs
among the salaried work force, the staffing and perform-
ance of the Cedar Rapids personnel department , and the
number of arbitration cases, among other things. The
Company modified its original concession list and agreed
to discuss only noneconomic issues and, when the Union
asked , the Company committed itself to reconsider its
position on short-term concessions if such were granted
and business then improved . The meetings appeared to
be conciliatory , open , and responsive throughout. If
agreement were possible , it appears that both were seek-
ing it.
It is true that the Company did not agree to union pro-
posals with respect to early retirement , profit sharing,
and job security. And the Union refused to accept any of
the Company 's original or modified concession proposals
or to put the proposals to a membership vote. Each
party continually reminded the other that the contract
was the law . In the circumstances , I believe that there
was a full and fair airing of a wide variety of subjects at
the concession meetings and despite the absence of
agreement on any proposal advanced by either party,
substantive good faith prevailed . I therefore will recom-
mend dismissal of those allegations of the complaint al-
leging bad-faith bargaining on the part of Respondent.
The contention that Respondent independently violat-
ed Section 8(a)(5) by failing to provide the Union with
division financial information it requested as soon as the
Company asked for concessions is also unsupported by
the evidence.
The record shows that Respondent has never claimed
"inability to pay" or any financial impediment to meeting
its contractual commitments . Rather, from the beginning,
Company Negotiator Lewis consistently reassured the
Union that it could afford to meet its contract obligations
and would honor them even if its concession efforts
failed . Moreover, Company Representative McCafferty,
in a session on April 15 , provided specific evidence of
the Company 's ability to pay when he said that the divi-
sion had earned approximately $500,000 in fiscal 1981.
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
What was relevant , however , was the data presented
by the Company to support the Company's unfavorable
comparison of Cedar Rapids productivity , quality con-
trol, and other costs with the Boiling Green and Lexing-
ton plants . However, the Company's claims in that
regard did not precipitate any information or request
from the Union . The Union merely argued the validity
of the comparison or excused them on the grounds of
any advantage the Kentucky plants possess is attributable
to their nonunion status . The Union did not seek the kind
of information truly relevant to the issues under discus-
sion.
I am persuaded , therefore, that the complaint allega-
tions alleging that the Company refused to provide the
Union relevant financial information violated Section
8(a)(5) should be dismissed and I shall so recommend.
6. The alleged bypassing
The complaint in Case 18-CA-7654 alleges that the
Company bypassed the Union by threatening employees
or questioning them with respect to their attitude toward
concession proposals . The General Counsel contends the
Respondent bypassed the Union and took its case direct-
ly to its employees , and interrogated and threatened
them concerning the proposed concessions and contract
modifications . It further contends that Respondent's
overall conduct and particularly its refusal to provide
relevant financial information and to consider the
Union's proposals constitute the type of bad-faith bar-
gaining prohibited under Section 8(d) and Section 8(a)(5)
and (1) of the Act. The General Counsel cites Goodyear
Aerospace Corp., 204 NLRB 831 (1973), enfd . in part 497
F.2d 747 (6th Cir. 1974), stating that the material facts in
Goodyear are in virtually all respects identical to the facts
herein.
I disagree . In that case, the employer proposed mid-
term concessions and contract modifications; claimed
that it was not competitive because of its relatively high
labor costs; refused to supply any financial information
to document its claim ; and dealt directly with and threat-
ened its employees with regard to the proposed conces-
sions . In those circumstances , the Board concluded:
"Where, as here, a party proposes an unsettling change
during the contract term , he indicates a desire not to
hold firm to the terms and conditions of the contract, at
least with respect to the change . In this situation there is
no reason for not requiring him to fulfill his normal bar-
gaining obligation about the proposal which he himself
initiated, if the other party requests it." 204 NLRB at
832.
Unlike Goodyear, the Respondent in the instant case
did not indicate a desire not to hold firm to the terms
and conditions of the contract but did just the opposite.
It stated that it could and would meet the conditions of
the contract if the union refused to grant the conces-
sions . In Goodyear, in view of the employer 's statement
FMC CORP.
that it could no longer afford the higher labor costs, the
financial information to support the employer's position
was indeed relevant and necessary to the Union in the
bargaining process . The Employer's normal bargaining
obligations do not include a duty to provide irrelevant in-
formation.
The evidence shows that employee meetings were not
unusual at the Cedar Rapids plants and that particular
meetings in question took place only after concession
proposals were presented to and thoroughly discussed
with the Union and after the Company had informed the
Union of its intention to meet with employees and to
obtain the Union's agreement and encouragement. More-
over, one or more union officers were invited to and did
attend every meeting to listen and monitor what took
place.
The General Counsel 's position is that although the
meetings between the company officials and the employ-
ees are not alleged as unlawful bypassing in the com-
plaints, the record evidence summarized here is impor-
tant in determining whether Respondent bargained in
bad-faith concerning the proposed concessions and con-
tract modifications . The General Counsel further con-
tends that that does not however , preclude a finding that
Respondent in fact bypassed the Union and dealt directly
with employees . To offset Respondent 's contention that
the presence of employer officers of the local union pre-
cludes such a finding the General Counsel cites the letter
sent by the Union President Hurtt as expressing the
Union's vigorous opposition to the Company's con-
duct. 111
I do not agree with the General Counsel that the
manner in which the Company planned and held em-
ployee meetings , its solicitation of union cooperation and
the Union's presence at those meetings supports the com-
plaint allegation of bad faith on the part of Respondent. I
shall therefore recommend dismissal of those allegations.
Moreover, I do not find any "by-passing."
7. Case 18-CA-7971 and the 10(b) issue
On May 24, the union committee was informed that a
decision to transfer parts and fixtures in connection with
its decision to transfer work on its small crawler crane
line from Cedar Rapids to Kentucky had been reached
and would be implemented within the month . On being
I I There is in evidence , G.C Exh 11, a letter dated March 31 from
"Jim J . Hurtt, UAW President ," to "Bob Price" that reads as follows:
Dear Bob:
This is to serve official notice to FMC Crane and Excavator Divi-
sion of the Union 's Notice to Terminate the Companys [sic] dealing
directly to [sic] our union membership . The Company is trying to
renegotiate contract language and benefit by acting to undermind
[sic] the representing union UAW, Local 299. We demand this repa-
titish manor [sic] be stopped immediately.
Also the company has made comments of a threatening nature to
our membership of cheaper labor costs and routing of work on a
comparison of non -union FMC plants . We will reserve the legal
rights [sic] to pursue this action in a manor [sic] of not freedom of
speech but damaging to union and company . N.L.R.B . Section
8(aX5), 8(aX3) and 8(aXl).
Apparently , though not entirely clear , the above letter was making ref-
erence to Respondent's conduct at the meetings. There is no evidence the
union representatives who attended made any protests to Respondent's
representatives at the time the alleged conduct was taking place.
497
so informed , Local President Hurtt immediately served
notice on Respondent that he would grieve and file
NLRB charges . He said that the transfer violated the
parties' letter of agreement regarding subcontracting,
that the Union would grieve the action and file NLRB
charges . On June 3 the Union did grieve . On June 21,
the Union also sought and obtained ex parte a temporary
restraining order prohibiting the transfer of tooling, fix-
tures, and parts from Cedar Rapids . However, the Union
did not file a charge with the NLRB until December 1, 6
months and 6 days after the day that it had been in-
formed of the transfer.
Respondent 's decision was announced by Ron Weaver
at a company -union meeting held May 24 . He read a
letter from Group Operations Manager Smith, dated
May 20, as follows:
With the next (non-division) structure basically in
place, we are now proceeding to implement some of
the concepts recommended by the task force.
Within the next 30 days , we will move assembly op-
erations of the small cable crawlers to the Boiling
Green plant ; fabrication, welding , and related ma-
chining operations to the Lexington plant with
much of the gear and shaft operations remaining at
the Cedar Rapids plant.
Weaver then stated that the transfer of parts ultimately
to be fabricated , welded, and assembled would com-
mence on June 21 , and on the same day, due to contin-
ued poor business conditions , a plant shutdown of ap-
proximately 4 to 6 weeks' duration would begin. Ac-
cording to Weaver 's testimony the June 21 date for both
shutdown and parts transfer was intentionally coincident
in order to accomplish the latter with minimum disrup-
tion from what otherwise would be normal plant activi-
ties. Weaver also stated that he anticipated that machin-
ing or manufacturing of gears and shafts, then being per-
formed at all plants, eventually would be centralized at
Cedar Rapids.
At no time since the announcement on May 24 has the
Union orally requested bargaining about the decision or
the possible effects thereof on the unit . On June 3, Local
President Hurtt gave Weaver a letter with a four-page
questionnaire form attached. The letter stated that the
Company had violated the contract and purported to
seek "effects" bargaining . Beginning June 20, William
Holz, labor relations manager, responded to the letter
and to other informational requests. Holz delivered to
the Union much data and explanatory cover material in
response to the Union 's request.
on June 29, after hearing, the TRO was dissolved and
the transfer of fixtures and parts resumed. The plant
shutdown caused by general economic conditions ended
in the first week of August and employees laid off as a
result were recalled . Through October 1, the work force
continued to build small cranes in accordance with the
established production schedule, and Cedar Rapids con-
tinued to fabricate gears and other parts to the end of the
year. However, in the last quarter of 1982, Bolling Green
assembled five small crawler cranes , each of which re-
quired 200 standard labor hours.
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. Conclusions with respect to the 10(b) issue
It is well established that the Board and courts have
held that the 6-month statute of limitations in 10(b) starts
to run on the date the union (or employee) is fully and
fairly informed of the facts that give rise to the alleged
unlawful conduct. Southeastern Michigan Gas Co., 198
NLRB 1221 (1972), enfd. 485 F.2d 1239 (6th Cir. 1973).
As previously stated, the Union first learned of the relo-
cation at a meeting held on May 24. The actual reloca-
tion of work commenced on June 21. The charge involv-
ing the relocation of the small crawler cranes was filed
on December 1.
According to the General Counsel, the 10(b) period
commenced on June 21 and not on May 24 as contended
by Respondent. The General Counsel relies, inter alia, on
Farmingdale Iron Works, 249 NLRB 98, 99 (1980), to
support its contention that in 8(d) cases generally, it is
the act and not the announcement of the act that triggers
the commencement of the 10(b) period. In Farmingdale
however, the act and not the announcement became the
starting point because the announcement was not clear
and unequivocal. Here however, and the record is clear,
on May 24, the union committee was clearly and un-
equivocally informed that a decision to transfer parts and
fixtures from Cedar Rapids to Kentucky had been
reached and would be implemented within the month.
Union President Hurtt understood precisely what was
said and its implications because he immediately served
notice on the Company that he would grieve and file
NLRB charges. Not only did the Union know of facts
that could support a charge but acted on that knowledge
with every apparent intention of filing one. Notwith-
standing, nothing was done until after 6 months from the
announcement of the decision. The TRO proceeding
commenced; the arbitration was heard; and only after
that, on December 1, did the Union file its charge. In ad-
dition, there was no obligation to furnish the Union with
information with respect to the parts transfer because
that bargaining obligation was subsidiary to and depend-
ent on the existence of an obligation to bargain about the
decision itself. Accordingly, if indeed a bargaining obli-
gation did arise, it arose with the announcement of a
company decision on May 24, a date beyond the 10(b)
period.
In the circumstances, the informational delay and re-
lated allegations in the complaint cannot revive a legally
defunct charge. I will therefore recommend dismissing
the complaint allegations based on the language of the
December 1 charge as untimely under Section 10(b) as
well as other allegations in the complaint deriving from
that charge including the informational delay and related
allegations in the complaint and the allegation that the
parts transfer was in retaliation for the Union's failure to
agree to concessions a year earlier. That allegation was
never made a subject of a timely charge and therefore it
too must be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not violated Section 8(a)(1), (3), and
(5) of the Act as alleged in the complaint.
3. The charge filed with regard to the relocation of
the small crawler crane and the complaint based thereon
are barred by Section 10(b) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.)
James L. Fox, Esq., for the General Counsel.
Richard H. Schnadig (Vedder, Price, Kaufman & Kamm-
holz), of Chicago, Illinois, for the Respondent.
Jerome Schur, Esq. (Katz, Friedman, Schur & Eagle), of
Chicago, Illinois, for the Charging Party.
SUPPLEMENTAL DECISION
WILLIAM A. GERSHUNY, Administrative Law Judge.
By Order dated 30 October 1985, I was designated to
supplement the findings and conclusions of the 23 Octo-
ber 1983 decision of Administrative Law Judge George
Norman (now retired), in accordance with the Board's
remand order of 6 July 1984.
I conducted a telephonic pretrial conference on 15 No-
vember 1985, the parties filed statements of position in
January 1986 about the issues to be decided, and Re-
spondent filed a motion to dismiss on 19 December 1985,
alleging mootness based on the expiration of the labor
agreement, the permanent closure of the plant, and a 1
March 1985 termination agreement incorporating "a
complete understanding by the parties concerning the
shutdown [of the plant], employee termination and the
effects of both." The agreement and the other factual as-
sertions of the motion are undisputed and are made a
part of the record for purposes of this supplemental deci-
sion. With this exception, the findings and conclusions
herein are made on the existing record and briefs. Credi-
bility resolutions are made, of course, without consider-
ation of witness demeanor.
1. The Motion to Dismiss: Respondent seeks dismissal
on grounds of mootness, based on uncontroverted facts
occurring subsequent to the 1983 hearing. In remanding
these cases, the Board expressed the "opinion that a full
disposition of the issues in this proceeding [including
those held in abeyance] requires additional factual and
legal findings." Given such explicit, limiting instructions,
I am without authority to entertain the motion. Never-
theless, the termination agreement and other factual as-
sertions concerning expiration of the contract and plant
closure have been received in evidence, to permit the
Board, if it is so disposed, to consider Respondent's
mootness contention.
2. The 8(a)(1) Allegations in Case 18-CA-7654: (a)
Paragraph 5(a) of the complaint alleges that Plant Man-
ager McCafferty, at a meeting of employees, threatened
a loss of existing jobs if concessions were not accepted.
The only witness to support this allegation, former Stew-
ard Brundrett, was uncertain whether the threat was
made by McCafferty or by Division Manager Weaver.
Both admittedly are supervisors. None of the other nine
witnesses called by the General Counsel to testify about
those meetings confirmed Brundrett's testimony of a
threat. Indeed, one such witness, Dusil, testified that no
FMC CORP.
such threat was made. Based on the record evidence
alone , I am unable to creidt the testimony of Brundrett
for the reasons that it is vague , uncertain , and totally un-
supported in this respect by any other witness called by
the General Counsel . Accordingly , paragraph 5(a) of the
complaint is dismissed for want of evidence.
(b) Paragraph 5(b) of the complaint alleges that
Powers unlawfully interrogated employees concerning
their position on concessions and unlawfully threatened
loss of jobs . The latter is unsupported by any testimony
and is dismissed for want of evidence . Brundrett testified
that such an inquiry was made of him by Powers, who,
admittedly , is a supervisor. Powers, employed elsewhere
at the time of the hearing , did not testify . There is no
reason to discredit Brundrett 's version of this one -on-one
conversation with a company supervisor . It was an in-
nocuous question-what did the "guys out in the shop"
think of the concessions-and was combined with an
opinion by Powers that the salaried employees were
making greater concessions than the hourly employees.
Brundrett 's response-that it would destroy the Union
and was one-sided-indicates that Brundrett certainly
was not intimidated by the inquiry , but this, of course, is
irrelevant . Tested objectively, the interrogation was co-
ercive in nature and , hence, violative of the Act.
(c) Paragraph 5(c) alleges that Chesmore unlawfully
interrogated employees concerning their position on con-
cessions and threatened them with loss of work. Ches-
more admittedly is a supervisor . Employee Campbell tes-
tified that he and several other employees were asked by
Chesmore what they thought of the concessions and that
Chesmore was afraid the facility might lose the Sea
Hawk project . None of the other coworkers was called
to testify . Chesmore denied making the inquiry , but ad-
mitted that he and other foremen were instructed to
learn employee sentiment . I credit Campbell's testimony,
despite its vagueness about the details of the inquiry and
other remarks and, on this record , find that the inquiry
was violative of the Act despite its informal nature. As I
stated above , the question , viewed objectively , was a co-
ercive one. Moreover , I find that Chesmore 's remarks, in
response to a general employee question , that "the Com-
pany could shut the door Monday morning if it wanted
to" and that he was "afraid we would lose the Seahawk
project," are sufficiently suggestive of a threat of loss of
jobs if concessions were not agreed to, as to constitute
an independent violation of Section 8(a)(1) of the Act.
(d) Paragraph 5(d) alleges that Klingman , admittedly a
supervisor , interrogated employees concerning their posi-
tions on concessions . Employee Feiereisen testified with-
out contradiction that Klingman "asked ... what I
thought ... was the feelings of the employees about the
concessions ." Tested objectively , the question constitutes
a coercive, and thus unlawful, interrogation.
(e) Paragraph 5(e) alleges that Uldrich , admittedly a
supervisor, threatened employees with loss of work if
concessions were not agreed to. Employee Rhoads was
the General Counsel 's only witness . He testified that he
and two other employees were urged to vote for the
concessions and that , later, he overheard Uldrich say to
two other supervisors that the Sea Hawk crane would be
built elsewhere unless concessions were granted. Al-
499
though the remark was not addressed to Rhoads and not
intended to be heard by him, he interjected, "at least
we'll get to build a prototype." He testified that Rhoads
replied , "No, it goes south , too." Uldrich denied the
latter conversation (the only one alleged as a violation)
and the General Counsel did not call any of the other
participants . Under the circumstances , I cannot find that
a threat was made , in the absence of corroborating testi-
mony . But, even assuming the statement to have been
made, it does not constitute a violation . The conversation
during which the statement was made was a private one,
between supervisors in a supervisor 's office. It was not
intended for employee consumption . The fact that it was
overheard by a unit employee who voluntarily entered
the office in the midst of the conversation does not con-
vert an otherwise lawful statement into an unlawful
threat of loss of employment . This allegation is dis-
missed.
(f) Paragraph 5(f) alleges that Hootman , admittedly a
supervisor, unlawfully interrogated an employee con-
cerning his and other employees' views on concessions
and threatened him with loss of employment if conces-
sions were not accepted . Brundrett testified that Hoot-
man asked him on 5 April what he thought about the
concessions. Brundrett "believed" Hootman also said: "If
we wanted to protect our jobs we probably ought to
accept those concessions"; there was insufficient work
for all the Company's plants; and (after reviewing his af-
fidavit), "if we wanted that contract we'd probably
better make the concessions ." I am unable to credit
Brundrett 's testimony . Again , it was too vague and un-
convincing to carry the General Counsel 's burden . Clear-
ly, Brundrett was confusing several different conversa-
tions with more than one supervisor . Clearly, he was
unsure what was said by Hootman and , clearly , he used
his affidavit as a prop, rather than as a refresher. This
alone tends to destroy any confidence in his testimony.
Accordingly, this allegation must be dismissed for want
of proof.
(g) Paragraph 5(g) of the complaint alleges that Wolfe,
admittedly a supervisor, threatened employees with loss
of jobs if concessions were not granted . Employee
Brown testified that , on 6 April, Wolfe came into his
work area, slammed some doors , and said , "You guys
have done it now . You didn't take those concessions, and
now we are going to move [the work] out of cedar
Rapids," and "It won 't make any difference anyway.
They are going to close the plant within 30 days." An-
other employee who was present was not called by the
General Counsel . Wolfe could not recall making such
statements , but, as chief steward for 8 years, Wolfe testi-
fied he was aware that threats were unlawful . On this
record, I have no basis for not crediting the testimony of
Brown . Wolfe's remarks clearly reflected his frustration
about deteriorating business conditions at the plant. Nev-
ertheless, when taken in context, they amounted to an
explicit threat that jobs would be lost unless concessions
were granted to the Company and, thus , were violative
of Section 8(a)(1).
3. The 8(a)(5) and (1) Allegations in Case 18-CA-7971:
In its remand order, the Board noted that , in Case 18-
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CA-7971, Judge Norman "did not fully address the fac-
tual and legal aspects of the Union's requests to bargain
about the effects of the transfer decision ... or to pro-
vide certain requested information in that case and Re-
spondent's compliance therewith." The Board ordered
that specific factual and legal findings be made (1) "re-
garding Respondent's alleged refusal to bargain about the
effects of its decision to transfer work" and (2) its al-
leged refusal to provide certain requested information,
including, but not limited to, the relevance of the infor-
mation requested and the degree to which Respondent
complied with this request."
(a) Effects Bargaining: First, it should be noted that the
remand order seeks further findings only with regard to
the effects bargaining allegations of paragraph 10 of the
complaint. Further findings about the decision bargaining
allegations of the same paragraph are not encompassed in
the Order.
Second, it should be noted that the relevant facts
about effects bargaining are not in dispute. The decision
to relocate was announced at a company-union meeting
on 24 May 1982. The Union announced that it would
grieve the action and file an unfair labor practice charge.
A grievance was filed on 3 June and denied on 20 De-
cember. A restraining order was obtained by the Union
in the district court on 21 June and was dissolved on 29
June. The charge was filed on 1 December, more than 6
months after the initial announcement. Admittedly, a
written request for effects bargaining was made by letter
dated 2 June and, by letter dated 6 August, the Company
replied that it was ready at the Union's request "to dis-
cuss any other subject that relates to the transfer of work
and which has impact on the bargaining unit personnel."
There is no evidence of any further union request, oral
or written, and, admittedly, no effects bargaining was
conducted. Counsel do not suggest what further findings
might be appropriate under the Board's remand order.
Because the issue of whether an obligation existed to
engage in effects bargaining is closely intertwined with,
and dependent on, the decision bargaining issue that the
Board has held in abeyance, I am unable to make conclu-
sions of law at this time.
(b) Request for Information: Approximately 61 individ-
ual requests for information were submitted by the
Union, and the Company provided voluminous docu-
ments in response. The posthearing briefs of the parties
do not address the items individually, the relevance of
each, or the adequacy or inadequacy of each piece of in-
formation provided. The General Counsel treats the in-
formation issue only by way of footnote, noting that
"Although Respondent ultimately furnished some of the
requested information . . . the relocation [of the work]
already has been consummated," but failing to discuss
any particular request or response. Respondent com-
ments only that "It is beyond the scope of this brief and
the reader's endurance to attempt a detailed analysis of
the propriety and relevance of each of the [61] questions
originally propounded by the Union in its June 2, 1982
letter." The Charging Party's brief (as supplemented on 8
January 1986) makes only limited reference to individual
items of requested information. Presumably counsel have
recognized that the posture of this case, both at the time
of the hearing and at present, does not warrant the time
and expense of preparing the type of detailed analysis
that would be essential to the factfinder. I am reluctant,
at this late date in the proceeding, to direct counsel to
prepare such an analysis and, not having presided over
the receipt of this voluminous documentary evidence, I
am unable to do the analysis apparently directed by the
Board.
In addition, I take note of the fact that almost 4 years
have lapsed since the decision to relocate; that the con-
tract expired in 1985; that the Cedar Rapids plant has
been permanently closed since June 1984; and that the
Union and the Company have entered into a termination
agreement on 1 March 1985 encompassing severence pay
and benefits of unit employees. Under these circum-
stances, I do not believe the Board intended to require
the kind of detailed analysis of the information requested
and provided, which its Order appears to suggest.'
' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.