Garcia Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1976

222 N.L.R.B. 558 (N.L.R.B. 1976)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lange Company, A Division of Garcia Corpora-
tion and Pattern Makers League of North America,
Denver Association , AFL-CIO. Case 27-CA-4466
January 23, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On September 30, 1975, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, The Lange Company, A
Division of Garcia Corporation, Broomfield, Colora-
do, its officers, agents, successors, and assigns, shall
take the action set forth in the Administrative Law
Judge's recommended Order.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in Denver, Colorado, on July 29
and 30, 1975. The complaint and notice of hearing was
issued on May 23, 1975, by the Regional Director for Re-
gion 27 of the National Labor Relations Board, on the
basis of an unfair labor practice charge filed on March 27,
1975, and alleges violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act.
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses, and to argue orally and file briefs. Based on the
entire record, upon the closing comments by counsel for
the Charging Party and the briefs filed on behalf of the
General Counsel and Respondent, and upon my observa-
tion of the demeanor of the witnesses, I make the following
findings of fact and conclusions of law.
1. JURISDICTION
At all times material, The Lange Company, a Division of
Garcia Corporation, herein called Respondent, has been a
corporation duly organized under and existing by virtue of
the laws of the State of New Jersey and has maintained its
principal office and place of business at Broomfield, Colo-
rado, where it has engaged in the manufacture and sale of
ski equipment. In the course and conduct of these business
operations, Respondent annually sells and ships goods and
materials valued in excess of $50,000 directly to points and
places outside the State of Colorado.
Therefore, I find that Respondent has been at all times
material herein an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Pattern Makers League of North America, Denver Asso-
ciation, AFL-CIO, herein called the Union, has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
III. ISSUE
Whether Respondent has failed and refused to bargain
collectively with the Union as the representative of
Respondent's pattern shop (and tooling) employees, in vio-
lation of Section 8(a)(5) and (1) of the Act, by failing and
refusing to meet and bargain with the Union, taking the
position that the collective-bargaining unit no longer exists,
taking the position that the certified bargaining unit is not
appropriate, unilaterally transferring a substantial number
of employees from the unit to positions outside the bar-
gaining unit and changing their rates of pay, and unilater-
ally granting benefits to employees represented by the
Union by extending coverage under Respondent's pension
plan and group life insurance policies in order to under-
mine the Union and to destroy its support by the majority
of the employees.
IV. FINDINGS OF FACT
A. Postcertification Bargaining
On November 1, 1974, the Regional Director for Region
27 issued a Decision and Direction of Election in Cases
27-RC-4888 and 4908 in which he concluded, inter aha,
that two separate bargaining units of employees at
Respondent's Broomfield facility were appropriate: a pro-
duction and maintenance unit for which United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-
CIO sought certification as the bargaining representative I
1 A majority of the employees in that unit did not vote in favor of repre-
sentation at the representation election
222 NLRB No. 91
LANGE COMPANY
and a pattern shop unit 2 for which the Union sought certi-
fication as the bargaining representative. So far as the rec-
ord discloses, no request for review of this Decision was
filed and, accordingly, despite Respondent's contention
that such a unit is not appropriate, I find that it is an
appropriate unit. A majority of the employees in the pat-
tern shop unit voted in favor of representation by the
Union and on December, 13, 1974, the said Regional Direc-
tor certified the Union as the exclusive representative of
the employees in that unit.
On January,9, 1975,3-Respondent's executive vice presi-
dent, Emil DeSimone, authored a letter to the Union's then
business manager and financial secretary, Lawrence Wil-
liam Berg, in which, among other things, the Union was
invited to forward whatever proposals it intended to make
so that they could be studied prior to commencing negotia-
tions. On January 20, Berg mailed copies of these proposals
to DeSimone and to James N. Graham, Respondent's
Broomfield plant general manager,4 along with a covering
letter stating that he had been unable to prepare these pro-
posals at an earlier date. In this letter, Berg also pointed
out:
We have attempted to cover all the things which we
are going to request in our first contract with you,
however we cannot go into all these items in full detail
at this time.
Examination of the proposals transmitted to Respondent
shows that matters such as recognition, union security, job
description, pay rates, seniority, vacations, holidays, and
leaves of absence were covered. Also listed were:
15. Group Insurance
(a) Health
(b) Sickness and accident compensation pay
* * *
17. Pension
(Pattern Makers Pension Trust Fund)
No request for a bargaining meeting on any specific date
was made in the letter and there were apparently no further
communications between the parties until early-February
when Respondent's attorney, Joseph S. Oberwager,
reached Berg by telephone and requested that Berg and the
employees on the negotiating committee meet in Vail, Col-
orado, where Oberwager was skiing on vacation. Berg
pointed out that it would be difficult for the employees to
journey to Vail, but as he had intended to go there for a
weekend of skiing, he would be able to attend such a meet-
ing.
On Saturday, February 8, Berg participated in a dinner
meeting with Oberwager and Graham at Vail. Berg testi-
2 As described in the certification of representative, the unit is
All pattern. shop (and tooling) employees at the Employer 's Broomfield,
Colorado, plant ; BUT EXCLUDING office clerical employees , and all guards,
professional employees and supervisors as defined in the Act, and all
other employees.
3 Hereinafter, unless otherwise stated , all dates occurred in 1975
4 Respondent did not deny the allegations in the complaint that DeSi-
mone and Graham were supervisors within the meaning of Sec 2 ( 11) of the
Act and agents of Respondent
559
fied that his primary objective was to reach agreement
upon a date for the commencement of negotiations, but
that he had also wanted to discuss, Respondent's position
on the Union's proposals. However, during the meeting,
Oberwager said that since Respondent's sales had not ma-
terialized as expected and since Respondent was experienc-
ing financial difficulties, it would probably be too costly to
bring out a new model ski boot in the coming year. Conse-
quently, said Oberwager, Respondent intended to effect
layoffs and transfers of pattern shop employees because
there would not be a need for the present complement of
pattern and mold shop employees as the pattern shop
would be needed only to maintain existing equipment. Ob-
erwager then listed the names of at least some of the em-
ployees who would be laid off or transferred and requested
Berg not to report this to the employees, -as Respondent
wanted to break the news itself. Berg testified that he felt
that Oberwager's request, "was probably proper also, and I
honored that." Although neither Oberwager nor Graham
invited Berg to express an opinion concerning the layoffs
and reductions and while there was no discussion of alter-
native steps that might be taken, Berg testified that:
The reason I didn't protest or try to bargain, I wasn't
aware that this was an option. I felt if the Company's
production was slowing down, it was their option to
operate their plant as they saw necessary, and I didn't
realize that there was-that this was a possibility, or
that there was anything that we could resolve.
Thus, on Monday, February 10, Respondent notified the
employees of the changes that were to be effected, as de-
scribed more fully infra. Three days later, on Thursday,
February 13, the same three persons who had met in Vail
again met, this time with the Union's president, Bob Chilel-
li, and employees Val Kimmel and Robert Claycomb in
attendance. In essence, the first part of the meeting was
absorbed with a more detailed description by Oberwager
of the financial plight of the ski boot industry in general
and of Respondent in particular. When Oberwager sug-
gested that, in view of the situation, negotiations be defer-
red until the following year when financial conditions
might be more stable, Chilelli protested- that the certifica-
tion would expire by that time. Oberwager then proposed
that negotiations be postponed until fall, thereby falling
within the certification' year. This proposal was also reject-
ed by the Union. When the subject of wages arose, the
Union took the position that inasmuch as Respondent had
previously executed written agreements with patternmak-
ers Kimmel and Edward Wilke to grant them an annual
cost-of-living increase, a similar increase should be granted
to other employees in the departmental unit. Oberwager
replied that Respondent could hardly give an increase to
one segment in the plant without considering the effect on
the remaining employees. Following a caucus, the Union
then proposed that a contract be executed embodying only
noneconomic matters, such as recognition, union security
and seniority, save for a cost-of-living increase similar to
that which Respondent had already promised to Kimmel
and Wilke. Such a contract, proposed the- Union, would
also contain a provision whereby it could be reopened in
the fall for discussion of other economic matters, such as
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
holidays, vacations, and pensions. Oberwager replied that
he did not feel that Respondent could enter into such a
contract, but that he would have to speak with Garcia Cor-
poration officials in New Jersey and notify the Union of
the final answer to this proposal. Oberwager also pointed
out that, in view of the transfers and layoffs that had oc-
curred in the department, he had been meeting with the
Union as a courtesy and did not have to meet at all inas-
much as the unit was no longer sufficiently populated.
As promised, by letter dated March 4, Oberwager noti-
fied Berg that he did not believe that it would "be possible
at this time to make any binding commitments" due to the
"uncertain economic situation" which had led to a decision
not to change patterns "for next season, and perhaps sever-
al seasons thereafter," thereby making a pattern depart-
ment unnecessary as "only one pattern maker will be need-
ed and the dispersal of the other employees, either in other
departments, or on layoff is also certain." More cogently,
the letter goes on to state:
In effect, as I originally said to you, the bargaining
unit no longer exists. Whether it will ever be reconsti-
tuted is not certain. This would depend on the econo-
my, and the fortunes of the ski business.
On March 8, Berg transmitted a reply letter to that sent
by Oberwager. In his letter Berg states, in pertinent part:
You stated that you had told me that our bargaining
unit no longer existed. I do not remember you saying
that at our meeting, but at this time I feel that we still
have a unit, even though the men from that unit have
different supervisors, they are still doing the same
work and are actually in the same shop working on the
same benches.
We would like to get on with the negotiating of a con-
tract. If we don't hear from you in regards to a meet-
ing within ten days we will retain counsel again and
file charges of unfair labor practice which would not
be in the best interest of good employer-employee re-
lations.
Upon receipt of Berg's letter, Oberwager replied, by letter
dated March 17, stating, inter alia:
Regarding your letter of March 8th, I fear that the
information being received by you with regard to
Lange operations is inadequate. As I told you in my
March 4th letter, the Pattern Makers unit no longer
exists. The Company will not create a new line of
boots for this year and possibly next year and the year
thereafter. It is not economically feasible, and the ex-
penditure of a quarter of a million dollars unjustified.
Further, the ruling of the Board was not and is not
acceptable, in the sense that apart from Wilke and
Kimmel, the other men in that department were nei-
ther pattern makers nor helpers nor apprentices. As a
matter of courtesy to you personally, we were willing
to discuss mutual problems, but under normal circum-
stances, I would certainly challenge the Board's ruling
through Board proceedings and ultimately into the
courts.
There then followed a hiatus in communications be-
tween Respondent and the Union until on May 9, Farrell
Gerland , newly elected business manager of the Union,
wrote to Oberwager , renewing the Union's request "for a
definite date and time for a meeting with that firm [Res-
pondent] to begin negotiating a contract .... " At
Oberwager 's direction , Graham called Gerland on May 27
and, following a brief discussion concerning letters sent by
the Union to Respondent's outlets in connection with this
matter , offered to meet but only for the purpose of review-
ing the history of Respondent 's relationship with the
Union and not to negotiate a contract . Although a meeting
was scheduled for June 10 or 12, after conferring with the
Union 's attorney , Gerland decided that as the purpose for
which Respondent wanted to meet involved only subjects
which were then covered by unfair labor practice charges,
the best that could be obtained would be a rehash of old
matters and such discussions might prejudice the Union's
charge. Consequently , by letter dated June 9, Gerland can-
celed the meeting , although in the letter he again invited
Respondent to bargain concerning "wages, hours of em-
ployment , and conditions of employment ." This invitation
was never accepted.
B. Operations in the Pattern Shop
The production of polyurethane ski boots through the
Langeflex or cast method of production is initiated in the
pattern shop. Working from engineering drawings, a wood-
en pattern is first produced, possessing all cosmetics, i.e.,
lettering, straps, etc., which will be contained by the final
boot. If the model is one which will be used for production,
the pattern is normally made by employees classified as
patternmakers, but if it is a prototype, it usually is made by
somewhat less experienced employees classified as mod-
elmakers. In either event, the wooden pattern is not a sin-
gle piece, but is cut down the middle, toe to heel, so that it
comes in two parts.
A final boot could be produced directly from the wood-
en pattern. However, as wood does not last as well as plas-
tic, the two wooden pattern halves are given to employees,
classified as tooling finishers, for preparation of plastic
models. This is accomplished by first casting epoxy over
the two halves of the wooden pattern, thereby producing a
female epoxy tooling. Once the latter is cured, it is then
used to make two types of male patterns. The first is made
by pouring epoxy directly into the female epoxy tooling
halves and, once this is cured, by removing the two male
halves created, "bucking" them together, plating or bolting
the completed unit to aluminum plates and, finally, scrap-
ing, adding cosmetics, and polishing it. This is referred to
as the male master tooling. A second male pattern is creat-
ed by lining the female epoxy tooling halves with wax to
the thickness of the boot shell that will ultimately be pro-
duced and by then pouring epoxy into the remainder of the
cavities of the female epoxy tooling halves. Once cured, the
male epoxy halves thereby formed are removed and
"bucked" together to form what is known as the plug.
Once these operations are finished, the pattern shop work
on the boots is completed and the male master tooling and
plug are sent to the mold repair department, located in
another building across the street from that in which the
LANGE COMPANY 561
pattern shop is housed. At the time of the Decision and
Direction of Election, there were two employees classified
as patternmakers, one employee classified as a modelmak-
er, and four employees classified as tooling finishers, one
of whom bore the special title of tooling leadman.
To complete the process, in the mold repair department,
the male master tooling is placed in an aluminum backing
frame or box, after which urethane or polyurethane plastic
is poured into the frame around the tooling to create an-
other female mold, this time called the production female
mold. Once postcured in an oven, the frame is broken
away from the production female mold and the plug is
then inserted into that mold, thereby permitting the final
boot shells to be manufactured by pouring polyurethane
into the space between the production female mold and the
plug.
C. The Decision To Cease Utilizing the Langeflex Process
There is no contention that Respondent's decisions in
connection with pattern shop employees were motivated
by their activity on behalf of the Union or by the fact that
the Union had become the bargaining representative of
those employees. Rather, for some time, Respondent had
been experiencing considerable financial difficulty at the
Broomfield facility in the highly competitive ski boot man-
ufacturing industry where, like the automotive manufactur-
ing industry, sales success is determined in considerable
measure by the ability to develop popular new models. In
June 1974, Respondent had two boot models under devel-
opment: its own Super Banshee boot and the Post boot for
which Respondent had paid a royalty fee to the inventor
with whom Respondent then began work to develop the
boot. During that month, Respondent had one of its peri-
odic meetings of high marketing officials from facilities
throughout the world. At this meeting, discussion ensued
concerning the merits of continued production using the
Langeflex method, which by this time was being used by
only one other ski boot manufacturer, versus conversion to
the considerably less costly injection-method which was
then being utilized by independent shops for Respondent's
Italian facility. No decision was reached at this meeting.
At a similar meeting in December 1974,5 a decision was
initially reached to discontinue development of both the
Super Banshee and Post models as neither model appeared
to have sufficient sales potential to justify the expenditures
which continued development under the Langeflex method
would entail. However, at the suggestion of Graham and of
Broomfield director of engineering, Edward Chalmers, it
was ultimately decided to send the Super Banshee model to
Italy for production of a single-size prototype using the
injection-method. Apparently those present harbored some
hope that the savings in cost over the cast method might
justify further production development of this style boot.
At the same time, the Post boot was also sent to Italy for
further development.
Thus, by the end of 1974, the production of prototype
ski boots had ceased at Broomfield. In view of this, during
5 The record does not disclose whether this meeting was conducted prior
a January meeting of Graham, Chalmers, and DeSimone, a'
decision was made to retain only patternmaker Edward
Wilke in the pattern shop and to either lay off or transfer
the remaining employees in that department. This decision
was not implemented, however, until the Monday follow-
ing Oberwager and Graham's Vail meeting with Berg. On
that Monday, it was announced that Wilke would continue
to work in the pattern shop; patternmaker Val Kimmel and
moldmaker Al Mirabel would be laid off; tool finisher
Dave Carlson would be permanently assigned to the ma-
chine shop where he had been working temporarily since
January; tool finisher Jack Newman and tooling leadman
Robert Lee Claycomb would be transferred to the mold
repair department; and tool finisher George Doyle would
become an expediter in the maintenance department.
D. Post-February 10 Pattern Shopwork
Wilke continued working in the pattern shop after Feb-
ruary 10, performing primarily patternmaker's duties, but,
consistent with Respondent's January decision, beginning
also to perform some of the duties of tooling finishers.
However, he was not alone in the pattern shop, for Clay-
comb continued to work there, save for a 2-week period in
April when he reported to the mold repair department, un-
til July 3, when he was advised that his duties would be
taken over by Wilke, that he would be transferred perma-
nently to the mold repair department to perform mold re-
pair duties, and that his pay rate would be reduced from
$5.55 to $4.52 an hour and his workweek changed from one
of 10 hours a day, 4 days a week to one of 12 hours a day,
3 days a week. Baum testified that Claycomb's wages were
reduced in July because he had begun to work at a lower
labor grade and that his wages had not previously been
reduced because, until July 3, Claycomb had continued to
perform tool finishers' work.
Following the implementation of the February 10 an-
nouncement, Claycomb and Wilke spent 3 weeks together
reworking a prototype, presumably the Super Banshee,
which had been under development and which was then
sent to Italy for further development. Although Respon-
dent contends that this was "carryover work," work in pro-
gress which had to be completed on February 10, it did not
dispute Claycomb's testimony that this work had not been
done until March or April nor Wilke's testimony that it
had not been done until June.
After February 10, Claycomb continued to repair dam-
aged male master toolings for patterns already in produc-
tion, estimating that between July 1, 1974, and June 30, he
had spent 25 to 30 percent of his time performing this type
of work. Both Claycomb and Wilke testified that this type
of work had always been performed by tool finishers in the
pattern shop and had not been performed by employees in
the moldroom or mold repair department. However,
Respondent's witnesses-Graham, Chalmers, and Baum-
each testified that minor repairs to male master toolings
had always been handled by mold repair department em-
ployees and that only when the damage was substantial
were the repairs effected by tooling finishers. In explica-
tion, Baum testified,that minor damage would be a matter
to or after the representation election in Cases 27-RC-4888 and 4908. such as a chip to a nontextured or nongrained area. How-
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, he acknowledged that approximately 80 percent of
the surface of the textured boot used for illustration pur-
poses during the hearing was grained or textured. More-
over, while Baum testified that, during the year ending July
1, only- twice was there major damage to a male master
tooling, Claycomb testified that during that 1-year period,
he had performed approximately 30 or 40 repair jobs.
Baum also testified that major damage could be repaired in
either the pattern shop or in the maintenance department.
However, no evidence of specific repairs by maintenance
department personnnel was produced. Further, neither
Graham nor Chalmers made any reference to the mainte-
nance department when testifying concerning these repairs
and both referred only to effecting repairs in either the
pattern shop or the mold repair department.
Significantly, although Claycomb did spend 2 weeks in
the spring working in the mold repair department, the work
which he performed was modification of soleplate epoxy
tooling. Baum conceded that this was work which was nor-
mally done by tool finishers and not by mold repair de-
partment 'employees. Of equal significance were the cir-
cumstances of Claycomb's return to the pattern shop, for it
was occasioned by an assignment to recast size nine male
master toolings. This led Claycomb to request that he be
permitted to return to working in the pattern shop as most
of the supplies and equipment he would need to perform
this work were located there. The request was granted and
Respondent concedes that this job, which lasted 2 months,
was work that had been performed by the tooling finishers
during the time that the pattern shop had been in opera-
tion. Indeed, the latter could not be disputed, for Clay-
comb had to repour female epoxy toolings, make new male
master toolings from them, and then plate the latter (see
IV, B, supra).
While both Claycomb and Wilke testified to one or two
occasions when Newman had worked in the pattern shop,
this appears to have occurred only sporadically and for
limited periods of time. Further, although Wilke testified
that Carlson had done both soleplant tooling and soleplate
modification in the pattern shop, Carlson did not corrobo-
rate this testimony, although he did testify that following
his transfer to the machine shop, he had done the same
work as he had performed in the pattern shop for approxi-
mately 15 percent of his working time. He conceded, how-
ever, that 85 percent of his time was spent on prototype ski
tooling and maintenance work, clearly, not pattern shop
functions.
-
Following Claycomb's departure from the pattern shop
in July, Respondent then subcontracted modification of
the toe area of a male master tooling for one size of a boot
already under production. It is clear that patternmaking
work and tooling work not normally performed in the pat-
tern shop had been subcontracted in the past. However,
Graham admitted that "epoxy master tooling for making
boots was never subcontracted." Yet, at no point did Re-
spondent choose to explain what had led it to break with
tradition and subcontract this work. Nor did it explain why
it had provided materials which it had purchased previous-
ly to the subcontractor, Denver Pattern, in this instance
when this had not been its practice in the past.
E. The Pension Plan
In March, Garcia Corporation instituted a new pension
plan, applicable to all of its employees, including those at
Broomfield. Graham testified that in November 1974 he
became aware that the plan would be instituted. Between
February 12 and 15, 500 copies of the plan and of covering
letters from Thomas T. Lenk, Garcia Corporation's presi-
dent, were received at Broomfield for distribution to the
employees, but only after clearance for distribution was
secured from Executive Vice President DeSimone. The sec-
ond page of Lenk's letter states, in pertinent part:
This means that the employees of our Lange Broom-
field division, our largest; of Simplex, our tennis rack-
et manufacturing division; and others shall enjoy the
same pension benefits as those employees at corporate
headquarters. The only exceptions are the few employ-
ees in the Lange pattern department, who must be
considered separately, and the small number of hourly
paid employees of our American Eagle tennis racket
gut division, in Chicago, who are covered by a sepa-
rate pension plan.
Graham testified that, when he subsequently spoke with
DeSimone, he expressed concern about the pattern shop
exclusion as Respondent was "in a situation of collective
bargaining" and as the effect of the exclusion would be to
preclude Wilke's participation in the plan. Apparently De-
Simone found merit in these observations for he and Gra-
ham then authored a letter, dated March 13, which states,
inter aba:
We are happy to add this personal note to Mr. Lenk's
letter to Garcia employees. We are delighted that you
are now included in the Pension Plan of The Garcia
Corporation and shall have the same pension benefits
that Garcia corporate headquarters' employees have.
Lange pattern shop employees are included in the
Pension Plan, a decision made since the date of Mr.
Lenk's letter.
The entire package-the copies of the plan, Lenk's letter,
and the March 13 letter-were then distributed to the em-
ployees. Graham conceded that at no point did he notify
the Union of Respondent's intention to institute the pen-
sion plan and there has been no bargaining concerning the
plan.
V. ANALYSIS
A. The February Transfers and Layoffs of Pattern Shop
Employees
In appraising- the legality of Respondent's conduct from
January through July, it should not be forgotten that there
is no allegation that Respondent was attempting to dis-
courage membership in the Union in violation of Section
8(a)(3) of the Act by any of the actions which it took.
Consequently , the validity of the reasons advanced by Re-
spondent to support the actions which it took is not disput-
ed in this regard.
Further, although the complaint alleges that Respondent
LANGE COMPANY 563
has failed and refused to meet and bargain with the Union
since December 30, 1974, it is clear that no violation of
Section 8(a)(5) can be predicated upon Respondent's con-
duct prior to February. Thus, while DeSimone's letter of
January 9 makes reference to "correspondence" between
Berg and Graham, no such correspondence was produced
at the hearing and no other evidence was offered that
would show that Respondent had been failing to meet and
bargain with the Union following the certification of De-
cember 13, 1975. Indeed, in the January 9 letter, DeSimone
invited the Union to submit its proposals prior to meeting
so that negotiations could be facilitated. Yet, it was not
until 11 days later that the Union complied with this re-
quest and then, the proposals forwarded were not, as Berg
observed in his letter and as shown by the quite summary
"Group Insurance" proposals, complete in all respects.
Moreover, neither in his January 20 letter nor at any other
time that month, so far as the record discloses, did Berg
attempt to arrange for a meeting on any specific date with
Respondent. In fact, it was Oberwager who initiated the
action which led to the February 8 meeting at Vail. In this
regard, in his brief counsel for the General Counsel at-
tempts to portray this meeting in a casual fashion by as-
serting that, on February 8, the parties "all happened to be
in Vail skiing and had dinner together." Yet, it is abun-
dantly clear that Oberwager did make an effort to conduct
a formal session on that date for, when he contacted Berg
to arrange for this meeting, he requested that the employ-
ees on the Union's bargaining committee also attend.
While the latter proved impractical, this can hardly be held
to have been Respondent's fault, particularly as there is no
evidence showing that Respondent had been avoiding bar-
gaining at an earlier date.
Therefore, I find that Respondent did not violate Section
8(a)(5) and (1) of the Act prior to February.
It is equally clear that, on February 8, Respondent did
advise Berg that, due to financial difficulties which made it
too -costly to bring out anew ski boot, Respondent intend-
ed to lay off and transfer employees from the bargaining
unit. Berg neither protested such action nor requested that
Respondent bargain concerning either the decision itself or
the effects of that decision. As the United States Court of
Appeals for the District of Columbia Circuit pointed out in
International Ladies' Garment Workers Union, AFL-CIO v.
N.L.R.B., 463 F.2d 907, 918 (C.A.D.C., 1972):
It is well settled that when a union has sufficiently
clear and timely notice of an employer's plan to relo-
cate, close or subcontract and thereafter makes no
protest of effort to bargain about the plan, it waives its
right to complain that the employer acted in violation
of Section 8(a)(5) and (1).
In view of the fact that Berg failed to protest or make an
effort to bargain about the decision, there is a substantial
basis for finding that the Union waived its right to com-
plain thereafter about the layoffs and transfers.
True, as is pointed out in the General Counsel's brief,
Oberwager did not detail the course of action which Re-
spondent had decided to pursue in not developing a new
model boot at Broomfield and in deciding to experiment
with the Super Banshee model in Italy. Yet, he did notify
Berg of the items of prominent concern to the Union-that
employees which it represented would be laid off and
transferred. It was left to Berg to ask whatever questions he
desired. At no point did Oberwager attempt to conceal any
facet of the decisions reached by Respondent in arriving at
the decision concerning unit personnel. So far as the record
discloses, he would have told Berg about the underlying
decisions had the latter inquired. In these circumstances, I
find that Respondent did provide adequate notice to Berg,
sufficient to enable the Union to ask questions regarding
the matter or to propose bargaining had it so desired. See:
International Offset Corp., et al., 210 NLRB 854 (1974);
U.S. Lingerie Corporation, 170 NLRB 750, 751-752 (1968).
Accordingly, it cannot be found that Respondent acted to
foreclose bargaining about this matter. Kingwood Mining
Company,-210 NLRB 844 (1974). Indeed, examination of
the conversations and correspondence in this matter dis-
closes that the Union has still not made any request to
bargain concerning either this decision itself or the effects
of that decision.
Counsel for the General Counsel, however, argues that
Respondent's conduct is tainted by virtue of the fact that it
had already made the decision to transfer and lay off em-
ployees before advising the Union. Yet, in no case has the
Board held that an employer must defer making a decision
concerning terms and conditions of employment until it
has first conferred with the representative of its employees.
The requirement is that, after reaching the decision, the
employer must then notify the representative and afford
the opportunity to discuss that decision and to consider
alternative proposals. Thus, in. Ozark Trailers, Incorporated,
161 NLRB 561 (1966), the Board made it clear that the
illegality lay not in the fact that the employer had first
made the decision before consulting with its employees'
representative. The illegality lay in the implementation of
that decision prior to affording the representative an op-
portunity to advance and discuss alternative courses of ac-
tion. Id at 568.
This is also illustrated in Moffitt Building Materials Com-
pany,_ et al., 214 NLRB No. 110 (1974), where the Board
found that the employer had not violated the Act even
though it had made a decision to liquidate its business
without so much as a fare-thee-well to the bargaining rep-
resentative, and where the latter then learned of that deci-
sion, but made no effort to bargain-with the employer. Id.
Similarly, in Association of Motion Picture and Television
Producers, Inc., 204 NLRB 807 (1973), the representative
first learned of the decision when it was announced by the
employer. Nonetheless, no violation was found as no bar-
gaining was thereafter requested by the representative. If,
as is contended in the instant case, it were the making of
the decision prior to consulting with the representative that
constituted the violation, then violations would have been
found in both of these cases. See also: A-V Corporation,
209 NLRB 451, 453-454 (1974).
Indeed, to accept the General Counsel' s argument in this
matter would be to create great instability in bargaining
relationships, for if formulation of decisions had to be de-
ferred, then bargaining would be reduced to being con-
ducted hypothetically in a vacuum. Employers are entitled
to first reach a decision. This provides the starting point for
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any bargaining which then might follow. However, em-
ployers must then be willing to consider the alternatives
proposed by the bargaining representatives before imple-
menting those decisions .6 Thus, once the employer notifies
a representative of a decision affecting employees which
the latter represents, the burden is upon the representative
to indicate whether it wishes to pursue the matter by ob-
taining further details and by bargaining with the employer
concerning the matter. Conversely, it is the burden of the
employer to supply the union with whatever information
concerning the decision which the latter seeks and to listen
with an open mind to whatever alternative proposals are
advanced. Here, the Union neither sought further informa-
tion nor bargaining.
Before passing from this subject, one final facet of the
matter is worthy of consideration. In International Ladies'
Garment Workers, AFL-CIO, supra at 919, the Court
points out that: "Notice, to be effective, must be given
sufficiently in advance of actual implementation of a deci-
sion to allow reasonable scope for bargaining." Here, the
announcement to the employees of the layoffs and trans-
fers occurred on February 10. As Berg was first notified of
this matter at a dinner meeting 36 hours earlier, it might
seem that Respondent's notice failed "to allow reasonable
scope for bargaining."
Yet, in view of Berg's belief that "if the Company's pro-
duction was slowing down, it was their option to operate
their plant as they saw necessary," it is clear that the Union
would not have requested bargaining concerning the mat-
ter even if it had been notified immediately after DeSi-
mone, Graham, and Chalmers had reached the decision to
lay off and transfer employees in the pattern shop. Indeed,
even after the Union was told that the implementation of
the decision had reduced its unit to one person, it still did
not request bargaining about the matter. Rather, at the
February 13 meeting and in the letters of Berg on March 8
and of Gerland on May 9, the Union continued only to
request bargaining for a contract. U.S. Lingerie Corpora-
tion, supra.
In fact, the Union appears to have shared responsibility
for failing to meet prior to February 8. While true that
Graham was not available to meet for much of January
because he was on vacation, it is equally true that, when
DeSimone made an effort to obtain the Union's proposals
to expedite negotiations, the Union was unable to furnish
any proposals until January 20 and even then, the propos-
als furnished were still not complete in all respects. More-
over, the earliest initiative thereafter to meet appears to
have been Oberwager's call to Berg to arrange for the Feb-
ruary 8 meeting. This is singularly significant for although
Respondenthad made the decisions much earlier concern-
6 As it is unnecessary to reach the question, for purposes of this decision
I am assuming that an employer must bargain regarding a decision not to
produce an annual new model and concerning a decision to experiment with
a different method of production (as opposed to a decision to actually com-
mence operating under a new method of production) It should be noted,
however, that both of these areas raise issues concerning changes in the
nature of a business and, as such, may not be the types of decisions about
which an employer need bargain. Summit Tooling Company, 195 NLRB 479,
480 (1972) In view of my disposition of the Union's failure to request bar-
gaining, however, it is not necessary to reach this question
Ing cessation of prototype development at Broomfield and
regarding the disposition of pattern shop personnel, it did
not implement the latter decision until after Oberwager
had first met with Berg. Not until the February 10 an-
nouncement to the employees, so far as the record disclos-
es, had any irrevocable step been taken to cease prototype
production at Broomfield and, accordingly, while Respon-
dent appears to have been firm in its decisions regarding
this matter, it was still in a position to continue deterring
implementation pending bargaining and in a position to
modify its decisions had it been presented with alternative
solutions to its plight. In these circumstances, although one
might speculate as to Respondent's reaction had the Union
sought to bargain about the matter and had the Union
presented viable suggestions for alternative courses of ac-
tion, the record will not support the inference that Respon-
dent delayed notification to the Union in an effort to fore-
close negotiations about the matter.
Therefore, I find that Respondent did afford sufficient
notice of its intent to lay off and transfer pattern shop
employees and that by failing to seek further information
regarding the basis for this decision and by failing to seek
bargaining concerning the decisions leading to this pro-
posed course of action, the Union foreclosed a finding of a
violation of Section 8(a)(5) and (1) of the Act in this re-
spect.
B. The Effect of the February Layoffs and Transfer on the
Unit
It is undisputed that Wilke continued to work in the
pattern shop as a patternmaker following the announce-
ments of the layoffs and transfers to Berg on February 8
and to the pattern shop employees on February 10. Thus,
Wilke clearly continued to be a member of the unit for
which the Union was certified as the representative.
Claycomb was transferred to the mold repair depart-
ment. However, the only practical effect of that transfer, at
least until July, was to change his immediate supervisor.
Both his workweek and his rate of pay continued as before
and, as illustrated by the events of July, both were different
from the workweek and pay rates of mold repair depart-
ment employees. Further, his work location was the same
as it had been prior to February 10 and the work which he
performed continued to be that which was found to be
included in the unit by the Regional Director in his Deci-
sion and Direction of Election. Thus, Claycomb continued
to repair damaged male master toolings. While some of this
work, when of a minor nature, was performed in the mold
repair department,' Baum admitted that the work which
Claycomb had been performing prior to July 3 was tool
finishers' work and that this accounted for the fact that his
wages had not been reduced prior to that time. According-
ly, it is not particularly significant that minor repair work
was\performed by mold repair department employees and,
in any event, I credit Claycomb's testimony that, during
the 1-year period prior to July 1, he had performed 30 to 40
repair jobs and that the repair work which he had per-
' I do not credit Baum's uncorroborated and unsubstantiated testimony
that major damage to male master toolings was repaired in the maintenance
department, as well
LANGE COMPANY 565
formed between February 10 and July 3 was the same that
he had been performing prior to February 10.
Although it is true that Claycomb did spend 2 weeks in
the spring working in the mold repair department, it is con-
ceded that the work which he performed, modification of
soleplate epoxy tooling, was tool finishers' work and, fur-
thermore, it is not disputed that he was returned to the
pattern shop because he had been assigned work which
tool finishers had performed traditionally and for which he
needed the tools and supplies available in the pattern shop.
Additionally, it is also worthy of note that, during the
spring, Claycomb worked for a period of time with Wilke
as the two reworked the Super Banshee prototype to ready
it for shipment to Italy.
In these circumstances, notwithstanding the organiza-
tional transfer of Claycomb from the pattern shop, the rec-
ord does demonstrate that, following February 10, he con-
tinued to perform pattern shopwork, at a location in the
pattern shop, at a rate of pay and on a work schedule
consistent with that of pattern shop employees and differ-
mg from that of mold repair department employees, and he
worked in conjunction with Wilke, who concededly contin-
ued to work as a unit employee. Consequently, I find that,
after February 10, Claycomb continued to remain a mem-
ber of the bargaining unit.
Although there was testimony that following February
10 Newman returned to the pattern shop on one or two
occasions to perform work, there is no evidence that he
remained there working for any significant period of time
on either occasion. Accordingly, his post-February 10 work
appears to have been no more than sporadic and, as such,
has not been sufficient to warrant his continued inclusion
in the unit following his transfer to the mold repair depart-
ment.
A similar result is warranted regarding Carlson who,
while transferred permanently to the machine shop,8 con-
tinued to spend 15 percent of his working time performing
duties which he had performed while assigned to the pat-
tern shop 9 -duties connected to ski boot production
which, of course, differ significantly in purpose from duties
in connection with ski production which occupy 85 percent
of his working time. Other than the testimony of Baum on
this point, which I have already stated that I do not credit,
there is no evidence sufficient to support the conclusion
that ski boot work had been performed regularly in the
machine shop prior to Carlson's transfer from the pattern
shop. Accordingly, I find that, while Respondent did not
violate the Act by transferring Carlson from the pattern
8 I have considered the possible argument that Carlson's January transfer
to the machine shop constituted prenotification-to-the-Union implementa-
tion of Respondent's decision to transfer and lay off pattern shop employ-
ees. However, such a contention is not advanced by the General Counsel
who, along with Carlson, appeared to acquiesce in Respondent's assertion
that the transfer of Carlson to the machine shop at that time had been
temporary. There is certainly no evidence to refute this assertion.
Though some of Carlson's post-February 10 work involved scraping
aluminum molds, which were not manufactured at Broomfield, there was no
indication from the examination of Carlson that the scraping, as opposed to
the manufacturing, of aluminum molds had not always been done at
Respondent's Broomfield facility, particularly as Carlson listed it as one of
the duties that he had continued to perform following his transfer to the
machine shop
shop to the machine shop, I find that, following that trans-
fer, he continued to perform pattern shopwork regularly
for 15 percent of his working time and, as such, occupied
the status of a dual function employee. Berea Publishing
Company, 140 NLRB 516, 518-519 (1963). Taking this into
account, the fact does remain that, although Carlson regu-
larly spends 15 percent of his time performing pattern
shopwork, he performs this work in the machine shop
which is separate from the pattern shop, he apparently is
subject to immediate supervision by someone other than
the pattern shop supervisor, his workweek is not necessari-
ly that of the pattern shop, and there is no evidence that he
has any substantial contact with either Wilke or Claycomb.
In these circumstances, I find that Carlson, following his
transfer permanently to the machine shop, ceased to enjoy
a community of interest with the employees in the pattern
shop and, accordingly, should no longer have been consid-
ered a part of the bargaining unit for which the Union was
certified as the representative. Filler Products, Inc., 159
NLRB 1536, 1553 (1966).
C. Post-February 10 Conduct
Notwithstanding its protestations to the contrary, the
fact remains that, by its conduct on and after March 4,
Respondent clearly refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.
As the Board recently pointed out in Queen Mary Res-
taurants Corporation, and Q.M. Foods, Inc., 219 NLRB No.
134 (1975): "It is axiomatic that each party to the negotia-
tions must participate in bargaining with a sincere desire to
reach agreement and must make a sincere effort to reach a
common ground." Prior to March 4, Respondent appears
to have been making an effort to "reach a common
ground"-at least, the evidence will not support a contrary
conclusion. Thus, in view of the Union's delay in sending
the proposals sought by Respondent and in the absence of
any evidence that Respondent had been deferring the com-
mencement of negotiations, it cannot be said that Respon-
dent was at fault for delaying initiation of negotiations un-
til 2 months after the certification had issued. Similarly, as
found above, at the Vail meeting, Respondent advised
Berg of the steps that it intended to take with regard to unit
employees in view of the December decisions at
Respondent's management meeting. When the Union did
not protest Respondent's proposed course of action and,
indeed, appeared to agree with Respondent's right to pur-
sue that course of action, the layoffs and transfers were
effected. Again, therefore, no violation of Section 8(a)(5)
and (1) can be predicated upon these events.
At the February 13 meeting, Respondent first proposed
deferral of negotiations so that it could be ascertained
whether Respondent's economic plight would improve
and, when then faced with a proposal for a contract largely
devoid of changes ini economic items, tentatively declined
to agree because of the effect of increased wage rates for
pattern shop employees on employees in other departments
at Broomfield. The latter position is not necessarily unlaw-
ful for it was pointed out in Los Angeles Herald-Examiner,
Division of the Hearst Corporation, 197 NLRB 42, 44
(1972):
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, it does not follow as the General
Counsel in effect contends, that Respondent's negotia-
tions with the one unit involved herein are to be
viewed in a vacuum. Where any issue requires a deter-
mination whether an employer, on the one hand, is
bargaining hard, or on the other, has gone beyond and
has not met his obligations under the Act, subjective
factors are to be considered in the factual context of
the particular case. N.L.R.B. v. Stevenson Brick and
Block Co., 393 F.2d 234 (C.A. 4). And the Board has
recognized that an employer may conduct negotia-
tions with full realization of their likely impact upon
unorganized segments of employees at its other termi-
nals. Standard Trucking Co., 183 NLRB No. 17. See
McCullock Corp., 132 NLRB 201.
Consequently, of itself, it was not an unfair labor practice
for Respondent to take into account the effect of any wage
increase upon the reactions of other employees in its plant,
notwithstanding the fact that these other employees were
not included in the bargaining unit. Similarly, contrary to
the assertion in counsel for the General Counsel's brief, it
was not an indicia of bad-faith bargaining for Oberwager
to defer a final answer to the Union's counterproposal until
he had had an opportunity to confer with Respondent's
principal officers. The Union's counterproposal was, in re-
ality an offer for a final contract. Accordingly,
Oberwager's reaction did not display inability to strike
compromises on individual items, but rather was consistent
with a principal's right, be that principal an employer or a
labor organization's membership, to exercise final approval
on the terms of a complete contract.
It was during this February 13 meeting that Oberwager
first raised the subject of the effect upon the bargaining
unit of the layoffs and transfers that had been announced
earlier that week. However, during this meeting, he did not
refuse to bargain with the Union and it was not until his
March 4 letter that the February 13 comments crystallized
into an absolute refusal "to make any binding commit-
ments" because "the bargaining unit no longer exists."
This position was reiterated in his letter of March 17 in
which the assertion that "the ruling of the Board was not
and is not acceptable" was advanced with regard to the
bargaining unit finding in the Decision and Direction of
Election in Case 27-RC-4888. Faced with these clear and
unequivocal expressions of refusal to negotiate further,
Berg ceased attempting to deal with Respondent and, in-
stead, pursued the matter by means of the charge in -the
instant case. When Gerland then succeeded to the position
of business manager, he made a renewed effort to attempt
to bargain with Respondent, but passage of time had not
altered Respondent's resolve to cease attempting to reach a
contract with the Union., Thus, as shown by its answer to
the complaint in this matter, Respondent continued to ad-
here to its dual defense that the bargaining unit was inap-
propriate and that it was composed of but a single employ-
ee. Quite clearly, the evidence supports the conclusion that
Respondent was refusing to bargain further with the Union
on and after March 4.
With regard to the defense of inappropriate unit, no
proposition of law is more firmly settled than that which
states that employers are not free to continue to advance
and relitigate contentions already resolved in representa-
tion proceedings. As the Board observed in Bryant Chuck-
ing Grinder Company, 160 NLRB 1526, 1530, fn. 11 (1966),
enfd. 389 F.2d 565 (C.A. 2, 1968):
. .. the Respondent is estopped in this proceeding
from relitigating the scope of the appropriate unit and
from making contentions with respect to the unit
which it could have raised with the Regional Director
in the underlying representation case.
So far as the record disclosed, Respondent did not request
review of the Decision and Direction of Election. Rather,
following certification, Respondent corresponded with the
Union, sought to obtain the Union's contract proposals,
met with Berg as the representative of the employees in the
unit to advise him of the February layoffs and transfers,
and met with the Union's negotiating committee to discuss
proposals and counterproposals. Consequently, Respon-
dent not only failed to challenge the unit determination at
the appropriate time, but it accepted that determination by
bargaining with the Union as the representative of the em-
ployees in that unit. Only when it discovered that it would
not be able to achieve its goals in bargaining did Respon-
dent then attempt to turn back the clock to the events of
late 1974 and challenge the appropriateness of the bargain-
ing unit. This it may not now do.
Turning to Respondent's second defense to its refusal to
bargain, the purported reduction in the composition of the
bargaining unit to one employee, I have already found that
both Wilke and Claycomb continued to remain a part of
the unit after February 10 and until July 3, when Clay-
comb was transferred to the mold repair department. Ac-
cordingly, Respondent is simply wrong in basing its refusal
to bargain further with the Union on and after March 4 on
the ground that the unit consisted of but one employee.
Although Respondent may have believed that the organi-
zational assignment of Claycomb to another department
removed him from the unit, such a belief, even if main-
tained in good faith, would not relieve Respondent of lia-
bility for its refusal to bargain. H & W Construction Compa-
ny, Inc., 161 NLRB 852, 854-855 (1966).
Therefore, I find that, by failing and refusing to bargain
with the Union on and after March 4, Respondent violated
Section 8(a)(5) and (1) of the Act.
During the time that both Claycomb and Wilke were
working in the pattern shop, Garcia Corporation imple-
mented a new pension plan, applicable to all employees
including those in the pattern shop at Broomfield. While
there is no evidence that this was done because of hostility
toward the Union, Respondent did not notify the Union of
its intent to apply the terms of that plan to employees
which the Union represented. Accordingly, by this action,
Respondent violated Section 8(a)(5) and (1) of the Act.
N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel
Products Co. 369 U.S. 736, 747 (1962). As was true above,
the fact that Respondent may have believed that there was
but one employee in the unit and may not have been moti-
vated by hostility toward the Union does not excuse its
violation. Nello Pistoresi & Son, Inc. (S & D Trucking Co.,
Inc.), 203 NLRB 905 (1973), enforcement denied on other
LANGE COMPANY - - 567
grounds, 500 F.2d 399 (C.A. 5, 1974).
Two other points are significant in this regard. First, al-
though Respondent did not say anything to the Union at
the meeting of February 13 concerning the plan, Lenk's
letter discloses that at the point in time when this meeting
was held, it was not contemplated that the employees
whom the Union represented would be embraced by the
plan's coverage. Thus, there would have been no need to
advise the Union of the plan at that time. Moreover, the
institution of the plan was not, as is contended by the Gen-
eral Counsel, inconsistent with Respondent's poverty plea
at that meeting, for there is no dispute that it was the
Broomfield facility that was experiencing financial difficul-
ties, while the plan was one which Garcia Corporation in-
tended to apply to all of its facilities There is, accordingly,
no inconsistency as Garcia Corporation's financial circum-
stances were never placed in issue in this matter. Second,
by distributing both Lenk's letters to the employees, the
one in which the pattern shop employees are listed among
the exclusions from participation in the plan, and the
March 13 letter, in which it is announced that they are
included, Respondent demonstrated the very danger
against which the Supreme Court has warned-that "the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up if it
is not obliged." N.L.R.B. v. Exchange Parts Company, 375
U.S. 405, 409 (1964).
Therefore, I find that Respondent violated Section
8(a)(5) and (1) of the Act by failing to notify and afford the
Union the opportunity to bargain about implementation of
a new pension plan insofar as that plan encompassed em-
ployees represented by the Union.
In July, less than a month, before the hearing in this
matter was scheduled to open, Respondent hastily transfer-
red Claycomb's work location from the pattern shop to the
mold repair department where he then commenced per-
forming mold repair duties. No reason was advanced for
this transfer. Yet, manifestly it had no relation to the De-
cember 1974 decision to discontinue development of the
Super Banshee and Post prototypes at Broomfield, for
while Claycomb did perform some work on the Super Ban-
shee model after February 10, the preponderance of his
work involved tooling repairs and soleplate modification-
work necessitated by production after February 10 and not
"carryover work," remaining for completion on February
10. In view of this fact and inasmuch as Claycomb contin-
ued performing pattern shopwork for almost 5 months af-
ter the Union had failed to seek bargaining regarding the
personnel actions described to Berg at Vail, I find that
there was no relation between the management decisions
which had led to the layoffs and transfers announced on
February 10 and Claycomb's July transfer to the mold re-
pair department. This being so, the Union's failure to de-
mand bargaining concerning the February 10 transfers and
layoffs cannot be said to preclude its right to notification
and an opportunity to bargain concerning Claycomb's July
transfer.
In the few cases where the issue has arisen, the Board
has normally adopted the rationale that it does not effectu-
ate the policies of the Act to require notification to the
bargaining representative prior to effecting changes in the
terms and conditions of employment of a single employee.
Quality Motels of Colorado, Inc., 189 NLRB 332, 338-339
(1971); Ordont Orthodontic Laboratories, Inc., 156 NLRB
49, 64-65 (1965); but see, Star Publishing Company, 187
NLRB 210, 211 (1970). However, the facts of the instant
case present employer-action having a somewhat more per-
vasive effect. Here, the effect of Claycomb's transfer was to
remove one-half of the employee-complement from the
unit for which the Union had been certified as the repre-
sentative. Further, not only was the unit reduced by half,
but the effect of the transfer was to preclude the Union
from further resort to the Board under the certification, as
"the principle of collective bargaining presupposes- that
there is more than one eligible person who desires to bar-
gain." Luckenbach Steamship Company, Inc., 2 NLRB 192,
193 (1937). Thus, the transfer had an immediate impact not
only upon Claycomb, but extending to both the Union and
also to Wilke, who was left unrepresented as Respondent
had already demonstrated that it did not intend to volun-
tarily recognize the Union as the representative of a single
employee. Finally, at no point did Respondent see fit to
explain the reason for making the decision to transfer
Claycomb. Cf. Quality Motels of Colorado, supra.
In fact, the timing of Claycomb's transfer indicates, ab-
sent another explanation, that it was effected to improve
Respondent's position that the unit had been reduced to a
single employee. This is supported by another fact-the
subcontracting of the modification of the toe area of a
male master tooling. Respondent conceded that this type
of work had never been subcontracted in the past. It is
undisputed that Respondent provided its own materials for
the subcontractor to perform this work and that this had
been the first time that Respondent had ever bestowed
such beneficence on a supplier. Of course, this is only one
instance of such subcontracting. But, only a small period of
time elapsed between the transfer of Claycomb and the
opening of the hearing in this matter. Consequently, there
was not a great deal of time for opportunities to subcon-
tract work of this nature and, as was true of Claycomb's
transfer, no reason was advanced for subcontracting the
modification of the toe area. In these circumstances, I find
that Claycomb was transferred to perfect Respondent's de-
fense that the bargaining unit was populated by only one
employee and that the toe area modification work was then
subcontracted because there was no tool finisher in the
pattern shop who could perform this work.
Therefore, I find that Respondent violated Section
8(a)(5) and (1) of the Act by transferring Claycomb from
the pattern shop to the mold repair department, thereby
removing him from the bargaining unit without prior, noti-
fication to the Union that this transfer would be effected
and affording the Union an opportunity to bargain about
it. I further find that, in view of this violation in transfer-
ring Claycomb, Respondent also violated Section 8(a)(5)
and (1) of the Act by subcontracting tooling finishers work,
both because it was an effect of the unilateral action of
transferring Claycomb from the. unit and because it was
done without affording prior notification to the Union of
the fact that this work would be subcontracted. Finally, I
find that by unilaterally changing Claycomb's workweek
schedule and unilaterally reducing his labor grade and
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages after transferring him to the mold repair depart-
ment, Respondent also violated Section 8(a)(5) and (1) of
the Act. These changes in conditions of employment were
the direct result of Claycomb's transfer without prior noti-
fication to the Union.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with the Respondent's operations described
in section II above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. A unit appropriate for collective bargaining is: All
pattern shop (and tooling) employees at Respondent's
Broomfield, Colorado, plant; excluding office clerical em-
ployees, and all guards, professional employees and super-
visors as defined in the Act, and all other employees.
4. At all times material, Pattern Makers League of
North America, Denver Association, AFL-CIO, has been
the exclusive collective-bargaining representative of the
employees in the above-described unit within the meaning
of Section 9(a) of the Act.
5. By failing and refusing to bargain on and after March
4, 1975, with Pattern Makers League of North America,
Denver Association, AFL-CIO, as the representative of
the employees in the above-described bargaining unit and
by basing that refusal to bargain on the contentions that
the unit was inappropriate and that the unit was composed
of but one employee, Respondent has committed an unfair
labor practice in violation of Section 8(a)(5) and (1) of the
Act.
6. By transferring Robert Lee Claycomb from the pat-
tern shop, where he was included in the above-described
unit, to the mold repair department, where he would no
longer be included in that unit; by changing Carlson's
work schedule and reducing his rate of pay; and, by sub-
contracting pattern shopwork, all without prior notifica-
tion to the Union and without affording the Union an op-
portunity to bargain about these matters, Respondent has
committed unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
7. By unilaterally and without consultation or negotia-
tion with the Union granting employees in the above-de-
scribed unit coverage under Respondent's pension plan in
March 1975, Respondent has committed an unfair labor
practice in violation of Section 8(a)(5) and (1) of the Act.
8. Respondent did not violate the Act in any other man-
ner.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action set forth below to effectuate the policies of the
Act.
Respondent will be ordered to transfer Robert Lee Clay-
comb back to the pattern shop and to his former position
as a tool finisher, and to make Claycomb whole for any
loss of earnings he may have suffered by reason of his
transfer to the mold repair department without affording
the Union prior notification and an opportunity to bargain
concerning that transfer. The backpay is to be computed
on a quarterly basis, making deductions for interim earn-
ings, and with interest to be paid at the rate of 6 percent
per annum. F. W. Woolworth Company, 90 NLRB 289
(1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
enforcement denied on other grounds 322 F.2d 913 (C.A.
9, 1963). -
Having found that Respondent failed and refused to
bargain with the Union, I shall recommend that Respon-
dent be required to bargain with the Union as the exclusive
collective-bargaining representative of the employees in the
above-described collective-bargaining unit.10 Moreover, as
the refusal to bargain occurred at a point when 9 months of
the Union's first year as certified bargaining representative
remained, I shall recommend that upon resumption of bar-
gaining and for 9 months thereafter the Union be regarded
as if the initial year of certification had not yet expired."
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER12
Respondent, The Lange Company, A Division of Garcia
Corporation, Broomfield, Colorado, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain collec-
tively with Pattern Makers League of North America, Den-
ver Association, AFL-CIO, as the collective- bargaining
representative of all employees in the appropriate unit of:
All pattern shop (and tooling) employees at
Respondent's Broomfield, Colorado, plant; excluding
10 In making this recommendation I reject Respondent 's argument that
the Union should not be accorded a bargaining order because it bargained
with the objective of obtaining a Board Order rather than a contract and
because the Union notified one of Respondent's customers that consumer
picketing would be conducted at the customer's premises There is no evi-
dence to support the former assertion and as to the contention regarding the
Union's announcement of consumer picketing , see N L R.B v. Fruit and
Vegetable Packers & Warehousemen, Local 760, et al, 377 U S 58 (1964)
Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350
F 2d 57 (C A. 10, 1965).
121n the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
LANGE COMPANY
office clerical employees, and all guards, professional
employees and supervisors as defined in the Act, and
all other employees.
(b) Transferring employees from the above-described
unit to positions outside the bargaining unit or making or
effecting changes in the wages, workweek schedule, pen-
sion plan benefits, or other terms and conditions of em-
ployment of employees in said unit without first giving no-
tice to the Union and affording the Union, as the
collective-bargaining representative of the employees in
that unit, an opportunity to bargain collectively with re-
spect to such change.13
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any right
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Reinstate Ronald Lee Claycomb to his former posi-
tion of employment in the pattern shop, dismissing, if nec-
essary, anyone who may have been hired or retained to
perform the work which he had been performing prior to
the time that he was transferred to the mold repair depart-
ment on July 3, 1975; restore the terms and conditions of
employment under which Claycomb was employed prior to
July 3, 1975; and, make Claycomb whole for the loss of
pay which he has suffered as a result of his grade and wage
reduction when he was transferred to the mold repair de-
partment, in the manner set forth above in the section enti-
tled "The Remedy."
(b) Upon request, recognize and bargain with Pattern
Makers League of North America, Denver Association,
AFL-CIO, as the collective-bargaining representative of
the employees in a unit of all pattern shop (and tooling)
employees at Respondent's Broomfield, Colorado, plant;
excluding office clerical employees, and all guards, profes-
sional employees and supervisors as defined in the Act,
and all other employees, respecting rates of pay, wages,
hours, or other terms and conditions of employment and, if
an understanding is reached, embody such understanding
in a signed agreement. Regard the Union upon resumption
of bargaining and for 9 months thereafter as if the initial
year following certification had not expired.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and other records necessary to compute the
backpay rights set forth in "The Remedy" section of this
Decision.
(d) Post at its Broomfield, Colorado, facility copies of
the attached notice marked "Appendix." 14 Copies of said
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
569
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges unfair labor practices
not found herein.
13 This is not to be construed as a requirement that Respondent rescind
increased benefits conferred by virtue of the pension plan Steel-Fab, Inc.
212 NLRB 363 (1974), In 1.
14 fn the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity except to
the extent that the employees' bargaining represen-
tative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
WE WILL NOT refuse to recognize and bargain collec-
tively with Pattern Makers League of North America,
Denver Association, AFL-CIO, as the collective-bar-
gaining representative of our employees in the appro-
priate unit of:
All pattern shop (and tooling) employees at
Respondent's Bloomfield, Colorado, plant; exclud-
ing office clerical employees, and all guards, profes-
sional employees and supervisors as defined in the
Act, and all other employees.
WE WILL NOT transfer employees from the above-
described bargaining unit to positions outside the bar-
gaining unit without first giving notice to the Union
and affording the Union an opportunity to bargain
collectively with respect to such transfer of employees.
WE WILL NOT make or effect changes in the wages,
workweek schedule, pension plan benefits, or other
terms and conditions of employment of employees in
the above-described bargaining unit without first giv-
ing notice to the Union and affording the Union an
opportunity to bargain collectively with respect to
such changes.
WE WILL NOT in any like or related manner interfere
with any of your rights set forth above which are guar-
anteed by the National Labor Relations Act.
WE WILL reinstate Ronald Lee Claycomb to his for-
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mer position of employment in the pattern shop, re-
store his terms and conditions of employment to those
which prevailed prior to July 3, 1975, and make him
whole for any loss of pay he suffered as a result of his
transfer to the mold repair department without prior
notification to the Union.
WE WILL, upon request , resume recognition of and
bargain collectively with Pattern Makers League of
North America , Denver Association , AFL-CIO, as
the collective-bargaining representative of our em-
ployees in the above-described bargaining unit, re-
specting rates of pay, wages, hours of employment, or
other terms and conditions of employment and, if an
understanding is reached, embody such understanding
in a signed agreement.
THE LANGE COMPANY, A DIVISION OF GARCIA COR-
PORATION