General Electric Co.

National Labor Relations Board - Board Decisions

Apr 22, 1960

127 N.L.R.B. 346 (N.L.R.B. 1960)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Electric Company and Hanford Atomic Metal Trades
Council . Case No. 19-CA-1731. April 22, 1960
DECISION AND ORDER
On September 14, 1959, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The General Counsel filed a brief in support of the Intermediate
Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding and adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
The Trial Examiner concluded that the Respondent violated Section
8(a) (5) and (1) of the Act by promulgating and putting into effect
a new procedure for determining the qualifications of its utility op-
erators for promotion, without first consulting or bargaining with
the duly authorized representative of the employees. This finding was
based on the Respondent 's announcement of December 11, 1958, to
employees of the new selection program, allegedly prior to consulting
or bargaining with the Union, and the Trial Examiner's subsidiary
finding that , at a subsequent meeting between the parties on Decem-
ber 17, 1958 , the Respondent refused to bargain about the matter.
The Respondent contends , inter alia that: ( 1) it was not required
to bargain about the promotion procedure because the contract im-
plicitly gave it the right to determine qualifications for promotion;
(2) the Union was required to utilize the grievance procedure pro-
vided in the contract ; ( 3) the Respondent did not in any event,
refuse to bargain in good faith , but did in fact offer to bargain with
the Union about the new promotion procedure before it was actually
instituted . We find it unnecessary to pass on the first two contentions,
as we find merit in Respondent 's third contention , for the reasons
noted hereafter.
The Union was, at all times material, the incumbent bargaining
representative of the Respondent 's employees . On December 11, 1958,
the Respondent held a meeting with all available union stewards,'
i Several days before , the Respondent had requested the Union 's chief steward to attend
the meeting with a number of other stewards . After initially agreeing to attend, he in-
127 NLRB No. 51.
GENERAL ELECTRIC COMPANY 347
at which time explanatory material was distributed on the new pro-
motion program for utility operators. Shortly thereafter, the Re-
spondent held meetings with the employees concerned, at which time
the same explanatory material was distributed. In this material, the
Respondent stated it was discussing the program with representatives
of the Union and planned to implement it on February 1, 1959. In
the meantime, prior to December 11, the Respondent had agreed to
meet with Williams, the union business agent, on December 17, the
earliest available date, to discuss the program.
At the December 17 meeting, Respondent, as the Trial Examiner
found, expressed doubts as to whether the program was a bargainable
matter. However, the Trial Examiner fails to advert to the uncon-
tradicted testimony of Amacker, Respondent's spokesman at this
meeting, that he offered to set this question aside and to discuss why
the program was needed and to listen to what the Union might say
"as to whether or not the program was necessary at all." In view of
this testimony we find no refusal to bargain at the December 17
meeting.
In a letter of January 20, 1959, the Respondent offered to meet with
the Union and "to discuss" and "explain" the new program. Relying
largely on the testimony of Maguire (a plant manager), the Trial
Examiner found that this offer was merely it proposal to discuss
changes in the program, foreclosing however, any discussion of the
question of whether or not to adopt the program, and that "GE
intended to put the new selection program into effect whether or not
the Council [Union] protested." 2 However, this testimony refers
only to the meeting of December 11 with the union stewards. Maguire
was not one of Respondent's representatives at the December 17 meet-
ing, nor does it appear that he participated in the drafting of the
January 20 letter to the Union. Furthermore, even if we adopt the
Trial Examiner's narrow construction of this letter as merely an offer
to discuss changes in the program, in the absence of any effort by the
Union to seek to broaden the scope of the discussions, we are unwilling
to conclude that such effort would havebeen futile.
formed the Respondent on December 10 that he would not attend because Williams, the
union business agent , wanted a meeting "downtown " Williams did not have the security
clearance necessary to attend meetings on the plant premises.
2 The following additional testimony by Maguire however, not mentioned by the Trial
Examiner, indicate, that it was the policy of Respondent to negotiate fully with regard
to a program of the type here involved Q. "Was the union relations manager to discuss
with the union the question of whether or not there would be this type of program as
approved by the plant managers"' A "This would be his normal designation that here
is a program that we approve and think should be done and he should discuss all of the
aspects of that with the union , whether i t should be done, whether it should be done this
way or so forth . I actually don't know what he would discuss with them except 'Here
Is our program ' and he would discuss it " [Emphasis supplied 7
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union did not in fact, seek a meeting I with the Respondent
after December 17, although the Respondent, as noted above, offered
to meet and discuss the program.4
We find, therefore, under all the circumstances here related, that the
mere announcement of the program on December 11, did not violate
Section 8(a) (5) or (1) of the Act; that the Respondent did not refuse
to bargain about the promotion program at any time before it was
made effective; and that the implementation of the program on Feb-
ruary 1, 1959, after the Union failed to avail itself of the opportunity
afforded it by the Respondent to discuss the matter further, did not
violate Section 8 (a) (5) and (1) of the Act.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
3 The cross-examination of Williams, business agent of the Union, revealed the follow-
ing Q "Have you specifically requested any further meeting with the Company?"
A. "No, the Company, as far as we are concerned, made its position quite clear." Q. "In
other words, you were not willing to continue with the discussions"' A. "They never
requested any additional meetings"
d The final paragraph of a letter dated January 20, 1959 (approximately 20 days before
the charges herein were filed), from the Respondent to the Union stated: "In closing,
we should again like to emphasize that the announced testing program, even at this date,
is still in the formative stage and we are quite willing, as we were in the December 17
meeting, to again meet with the Council and discuss this subject if you desire."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on February 10, 1959, by Hanford Atomic Metal Trades
Council, herein called the Council, the General Counsel of the National Labor Re-
lations Board, herein respectively called the General Counsel' and the Board,
through the Regional Director of the Nineteenth Region (Seattle, Washington),
issued a complaint, dated April 30, 1959, alleging that General Electric Company,
herein called GE, has engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act.
Copies of the charge and complaint, together with notice of hearing thereon,
were duly served upon GE and upon the Council.
Specifically, the complaint alleged that GE, (1) on or about December 8, 1958,
unilaterally and without consultation with, or notice to, the Council, the statutory
collective-bargaining representative of the employees here involved, instituted a
drastic change in the method of selecting its utility operator for promotion to pile
operator positions; and (2) has at all times since said date, despite the Council's
prompt protest, refused either to rescind the change or to bargain with the Council
with respect thereto.
GE duly filed an answer and an amended answer denying the commission of the
unfair labor practices alleged.
Pursuant to due notice, a hearing was held from June 22,,through June 25, 1959,
at Richland, Washington, before the duly designated Trial Examiner. All parties
were represented by counsel who participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
i This term specifically includes counsel for the General Counsel appearing at the
hearing.
GENERAL ELECTRIC COMPANY 349
evidence pertinent to the issues, to argue orally at the conclusion of the taking of
the evidence, and to file briefs on or before July 30, 1959.2 Briefs have been re-
ceived from the General Counsel and from counsel for GE which have been care-
fully considered.
Upon the basis of the entire record in the case, and from his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF GE
GE, a New York corporation doing business throughout the United States, is now
engaged, and during all times material has been engaged, at Hanford Works, Rich-
land, Washington, in the manufacture of plutonium under contract with the United
States Government. In performance of its commitments with the Government
GE's annual out-of-State purchases aggregate more than $100,000, and its annual
compensation, under the aforesaid Government contract, exceeds $100,000.
Upon the above undisputed facts, the Trial Examiner finds that during all times
material GE was engaged in and now is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the
Act for the Board to assert jurisdiction of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Council is a labor organization admitting to membership employees of GE's
Hanford project.
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
The Board herein is called upon to determine the narrow question whether GE
by instituting the program now under attack, for promotion of utility operators to
pile operators violated Section 8(a)(5) of the Act.
In 1949 the Council was certified by the Board as the exclusive bargaining repre-
sentative in an appropriate unit. Since said certification GE and the Council have
maintained bargaining and contractual relationships. The most recent bargaining
contract was entered into on November 10, 1955, as of the previous August 29, and
will continue in effect, under its terms, until October 1, 1960.
The jobs here involved are those of utility operators and pile operators in the
irradiation processing department and are concerned with .the operation of reactor
piles in the processing of materials to produce plutonium by irradiation of uranium.
The utility and the pile operators, whose duties have not undergone any substantial
change since 1946, are included in the bargaining unit.
Up to the present year promotions from utility operator to the more remunerative
and responsible job of pile operator have been mainly on the recommendation of
the employees' operating supervisor.3
2 At the request of counsel the time to file briefs was extended to August 21, 1959.
"During the course of the hearing the parties entered into the following written
stipulation
1. One hundred (100) pile operators, promoted from utility operators during the
period approximately 1949 to the beginning of 1959, if called, would testify that they
were not given written tests prior to promotion from utility operators ; that during
the period of time that they worked as utility operators they received training; that
as part of that training their supervisor from tine to time asked them questions,
and many of such pile operators would testify that on some occasions they wrote
down the answers to questions, but all pile operators would testify that all testing
was informal and those who had written answers to questions would testify that they
had not thought of that as a "written test "
2 The afore-mentioned one hundred (100) pile operators, If called, would testify
that they did not have to pass a written test to qualify as a pile operator but the
vast majority of them would concede that to qualify as a pile operator meant that
they had to demonstrate the ability to be a pile operator ; that their supervisor had
to recommend them for promotion , and either that the supervisor considered their
answers to questions, oral or written, as the case might be, in deciding on their
ability, or that they do not know what the supervisor considered in deciding on their
ability.
3. Fifty (50) supervisors or former supervisors, serving as supervisors during the
period approximately 1949 to the beginning of 1959, if called, would testify that
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsection lb of article II of the current bargaining contract provides:
Subject only to any express limitations stated in this Agreement, or in any
other agreement between the Company and the Council, the Company retains
the exclusive right to manage its business, including (but not limited to) the
right to determine the methods and means by which its operations are to be
carried on, to direct the work force and to conduct its operations in a safe and
effective manner.
Section 6 of article XIII provides in part:
Seniority will be a major factor in upgrading in a classification but ability
will be given consideration as the employee must be qualified to do the avail-
able work . .. . seniority will be a major factor when considering bargaining
unit candidates if all other qualifications are equal.
Under date of November 7, 1955, a written memorandum, in letter form, was
entered into between GE and the Council, the portion pertinent to this proceeding
reads as follows:
Utility Operators (Reactor) who have been on the job rate of that classifica-
tion for not less than six (6) months, and who have demonstrated their ability
to qualify as candidates for Pile Operator jobs, will be upgraded to Pile Opera-
tors in accordance with the transfer rules until a ratio has been reached of ap-
proximately five (5) Pile Operators to two (2) Utility Operators (Reactor) in
the Reactor Section.4
The record discloses, and the Trial Examiner finds, that GE had issued a training
manual which described the training programs for its Hanford Works employees,
including utility and pile operators. The procedure adopted by GE in this manual,
with respect to selecting utility operators to fill pile operators jobs, in addition to a
requirement for a minimum period of service, consisted of (1) a physical examina-
tion; (2) satisfactory job performance; (3) promotability appraisal by the candidate's
immediate supervisor together with an appraisal by supervisor of the candidate's
choice; and (4) a job knowledge test.
The procedure regarding on-the-job training of utility operators was largely left
to the discretion of their individual supervisors. In most instances, the training
consisted of discussing, either individually or in groups, the problems connected with
the employee's job. There was no established uniform type of questions asked, but
in 1955, GE inaugurated a program of written tests for file operators. The Council
objected to such a program maintaining, among other things, that the pile operators
"felt the results of the tests would affect job status "
At a meeting held on November 11, 1955, the Council presented its protest to the
aforementioned written tests. There, after a Council representative had stated in
detail the Council's reasons for its protest,
Donnell 5 stated the tests are being given solely as a training measure; read
letter from McGuire 6 to Reactor supervisor which stated the tests were for train-
ing purposes only; stated the tests were identified as to individuals because the
Company wanted to supply training on individual basis as tests indicate it is
needed; stated the tests are not to be used to affect individual ratings, have
nothing to do with so-called Specialists, and have no connection with ratio
during the training period of utility operators they conducted examinations, some-
times written and sometimes oral, to determine the ability of utility operators ; that
they did not recommend for promotion any utility operator who did not eventually
adequately answer such questions either written or oral ; but that all such question-
ing was informal and that there was neither a plant-wide requirement for such
informal testing nor a formal test, the passing of which was a necessary prerequisite
for promotion to pile operator
4It is significant to note here that while this agreement recognizes that utility operators
must be qualified to perform the tasks of pile operators, it makes no reference as to how
such qualifications are to be determined. In fact, in the administration of the current and
former contracts, there had geen grievances filed and informal discussions held between
GE and the Council on individual cases where utility operators had been bypassed for
promotion In such conferences and discussions the question of written tests was never
mentioned
8 One of the four GE representatives present.
6 Reactor production superintendent
GENERAL ELECTRIC COMPANY 351
arrangement; stated the Council would be immediately supplied with a letter
from G.E. which would clearly explain all these points; stated Company would
check on poor presentation by supervision to which Roberts referred.
the Council was satisfied with Donnell's explanation and raised no further objection
to the program which was discontinued after it had been in effect for several months.
Early in 1958, GE revised its training manual, which provided, among other
things, for the giving of certain written tests. The Council again objected to the
introduction of formal written tests.
At a meeting held on March 19, 1958, between GE representatives and Council
representatives, the following, among other things, took place, according to the
memorandum of David E. Williams, the Council's business representative and one
of its legal counsel, which the Trial Examiner finds to be substantially in accord
with the facts:
Reining inquired re training program with particular reference to tests.
Clough and Amacker [GE representatives] said the tests were for training
purposes only. Shafer [a Pile Operator and a Council representative] pointed
out that there was such a diversity in administration of the tests, that they had
no genuine meaning-"There were as many ways of giving tests as there were
supervisors." Shearer [another Pile Operator and a shift steward] and others
present inquired regarding possibility of further and more uniform and formal
training prior to tests. Amacker said Company recognized desirability of train-
ing in advance of tests on subjects covered by tests and "will see that this is
done."
Union representatives pressed for further and more formal training which
would not be interrupted by regular work; it was emphasized that there is
simply not enough time for adequate training, men should be pulled completely
away.
Shearer asked whether or not tests would affect future status of Operators-
Amacker said tests were exclusively a training measure, would not affect job
status of individual employees.
Hubbard [GE representative] said training program as outlined should be
gone through every 2 years. Reining [Council representative] stated some
"training" was not training at all but consisted of advanced technical lectures,
piecemeal comments, and rushed discussions; repeated that Union wanted more
training, wanted it to be consistent and adequate.
Shearer said that information was out that each Operator would be given 2
opportunities to take tests and if he fails, he will be fired. Clough denied this,
said he had no information to this effect-other Company representatives made
no comment.
Clough said it was his theory that training should be done thru supervision
and 'SI intend to see that they are trained."
Reining said that many crafts are the sole judgment as to who is and who is
not a journeyman-said Chemical Workers wished to participate in training
program. Weston [GE representative] and Amacker stated, in effect, Company
is not interested in such an approach.
Shafer said Chemics do not want any test which leaves their own immediate
area-do not want unwarranted blemishes on record etc. Clough said tests
will be under control of immediate supervisor.
It was re-emphasized by Shafer that Union wanted training, but wanted it on
a good, solid, understandable basis and did not want tests to serve as foundation
for penalty.
Amacker said training will be administered in the building shift by immediate
supervisor, tests are not intended to interfere with job status, rather are to
measure effectiveness of training program.
Question was asked if records will be kept-Amacker said it was not neces-
sary-also agreed this was a matter for handling by shift supervisor, there will
be no central records kept; matter is basically in the hands of the shift
supervisor?
T Outside of the utility operators, GE has not utilized written tests to any appreciable
degree in determining qualifications of employees for promotion. The single exception
has been the written tests given to instrument technicians for promotion. That program,
however, wag worked out, after a number of meetings, between the Council and GE
In 1953-54.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 4, 1958, the parties to the bargaining contract again met and dis-
cussed, among other things, the Council's objections to the written tests. According
to Williams' credited memorandum the following transpired thereat with respect to
that subject matter:
Reining said Company was giving tests to operators grading the same, and
keeping records-said this was contrary to past understandings, explained that
men resented tests, resented them being graded-said this was not to be con-
strued as opposition to training-however, men resented being tested on physics,
chemistry, etc. when they had no education in such subjects. Hubbard acknowl-
edged that Company had agreed there would be no central grading, central
records but said that supervisors would be permitted to give tests. Shafer
raised question concerning lack of uniformity, pointing out that program varied
from shift to shift, area to area. Miller [GE representative] agreed that train-
ing varied from shift to shift due to different qualifications of supervisors,
acknowledged that efforts had to be expended to see that all men received same
quality training insofar as possible. Shafer pointed out that writing answers is
very difficult for many men, better progress would be made by oral discussions,
men dislike putting names on written test. Reining said men are being tested
on matters in which they have not been trained, this is harmful, is in no way
helpful. Reining said if men were fully trained there would be no fear of
taking written tests. Reining said further that Clough's test program in "B" was
in accordance with union's understanding, was working fine, this was only place
where proper application was being made. Schier said he understood Union's
position, Company would review the matter in IPD report to Union. Shafer
asked that testing be held in abeyance until answer is forthcoming. Shoen said
that Company would answer, one week from Monday, in meantime tests would
go on. Schier asked whether Union would agree to a program where there
are no grades.
While GE was assuring the Council that its aforementioned written test program
was for hiring purposes only and would in no way affect the employee-status of the
utility or pile operators, it was formulating a new program for promoting utility
operators. Thus, the credited evidence discloses that in the summer of 1958, work
was started on such a program; that in August a draft program was completed; that
on or about November 20, 1958, the drafters of the plan referred it to GE's Indus-
trial Relations Council of the Irradiation Processing Department, whose approval
had to be secured for all such programs; and that after certain changes had been
made in the program, the Industrial Relations Council of the Irradiation Processing
Department, to quote from the testimony of A. Russel Maguire, the plant manager
of the BC Reactor Operation and member of the Industrial Relations Council referred
to immediately above, "finally, by December 4th, we (the Industrial Relations
Council) were [sic] agreed that the program was ready for use." Maguire further
testified, and the Trial Examiner finds, that he and another GE official had been
designated by other members of the Industrial Relations Council to arrange a meeting
with the chief steward of the utility and pile operators; that he had , as in the past
when a new program was about to be put into effect, say to the chief steward, "This
is our program, we intend to do it, here are our reasons"; that after the chief
steward was "satisfied" with the proposed program, he would put it into effect
and then, about a week or so later, would discuss the matter with Council's business
agent and some of its other officials; and that he told the manager of GE's Union
Relations "to set up a meeting with the chief steward" so as to disclose to said
steward "that we had a program which we were going to use to test utility operators
to become pile operators." When Maguire was asked, "Was the purpose of this
meeting [with the chief steward] to receive the union's approval?" He replied,
No, it was only to tell them that it was there. I don't think that approval-well,
we were the ones that approved the program,8 we had listened to comments
and suggestions for improving it; but the need for it is dictated by our
relationship with the Commission,9 so I don't see where the union would come
into approving it. We could discuss with them things like where would the
tests be conducted and what would be a fair way to grade them, this type of
thing; but I don't know what else would be discussed, but it was mainly to
communicate to them that we had this program and I would say that the
discussions from that point on would take place as indicated, .. .
8 Presumably the Industrial Relations Council of the Irradiation Processing Department.
s The Atomic Energy Commission had promulgated certain licensing requirements for
pile operators. These requirements were not applicable to GE's Hanford plant personnel.
GENERAL ELECTRIC COMPANY 353
About December 9, 1958, shortly after the Industrial Relations Council had
approved the new program, R. B. Shoen, the manager of Union Relations for the
Irradiation Processing Department, requested Eugene T. Hubbard, the DR processing
subsection manager, to inform Fred H. Butcher, the reactor section chief steward,
that Respondent desired to meet with Butcher on December 11, to discuss a pile
operator selection program. Hubbard thereupon telephoned Butcher and said, "I
would like to have a meeting with you, have yourself [sic] and a couple or three
stewards and come to work tomorrow and we will have a meeting on this test for
the utility operators." Butcher replied that he would do as requested. However,
after thinking the matter over, Butcher informed Williams, the Council's business
agent and one of its legal counsel, of Hubbard's telephone call. Williams told
Butcher that he would contact Amacker, and arrange to have the proposed meeting
"downtown." 10
Pursuant to arrangements made by Williams, a meeting between the parties was
set for December 17, and Butcher informed Hubbard that he would not attend
the meeting which Hubbard had called for December 11. Between the time of
Hubbard's call to Butcher and the latter's announcement that he would not attend
the December 11 meeting, the supervisors had been given material for distribution
to the reactor personnel. Despite the fact that a meeting had been arranged for
December 17, to discuss the new selection program with Williams and other Coun-
cil officials, GE told its irradiation process managers that if Butcher did not attend
the December 11 meeting, they were to contact any steward who might be in their
building between 3 and 3:15 p.m. on December 11, and inform them of the new
selection program.
At 3 p.m., or shortly thereafter, on December 11, the irradiation processing super-
visors announced to the nonsupervisory personnel the new selection program. In
some instances , the stewards were informed of the program a few minutes before
the supervisors had distributed the material to the employees.
The parties met as planned on December 17. The Council protested the insti-
tution of the new selection program without first consulting or bargaining with it.
It then requested that the program not be put into effect" until there had been
bargaining conferences with respect thereto. The GE officials expressed doubts
as to whether the program was a bargainable matter and refused to state whether
or not the question of employee promotability was subject to the bargaining con-
tract's arbitration clauses. Said officials, however, offered "to discuss" the program
and "explain" it and would gladly receive whatever "constructive" suggestions the
Council might desire to submit.
Under date of December 22, 1958, the Council wrote GE as follows:
On the basis of the meeting of December 17, 1958 regarding the above
subject, it is the Council's understanding that the Company does not regard
the institution of the written test program as a "bargainable" matter under
Federal law. It was our further understanding that the Company also took the
position that a by-pass of a senior employee in a promotion situation is not
subject to arbitration under the current HAMTC-GE Agreement.
Please be advised that the Council regards institution of the program as
aforesaid as a significant change in working conditions which is legally subject
to collective bargaining with the Council.
You may be assured that the Council is willing to meet and confer in good
faith with the Company about this announced change in working conditions for
bargaining unit employees.
On the other hand, the Council will be required to regard any unilateral
institution of such testing program as violative of the rights of said employees
and the Council as the same are established by the National Labor Relations
Act, as amended.
Under date of January 20, 1959, GE wrote the Council as follows:
In replying to the Council's letter of December 22, 1958, we first should like
to apologize for the delay in providing you with our response in this matter.
As was explained in our phone conversation, the Council's original letter ap-
10 Hubbard and the other GE official had planned to hold the meeting in the plant's
working area. Williams, however, did not have the necessary security clearance to enter
the working area and therefore all the meetings with GE which he attended were held
either at one of GE 's administration buildings or at the Council's headquarters.
u GE announced that the program would become operative on February 1, 1959.
560940-61-vol. 127-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parently was mislaid by our office force, hence the request for a copy which
you supplied last week.
Secondly, we believe there is some misunderstanding regarding the various
discussions held on the Pile Operator Selection Program. As you will recall,
we had arranged for a December meeting with Council representatives in the
field to discuss details of the formalizing of our selection program to be insti-
tuted in February or March, 1959. It was our intention to fully acquaint the
Council and union representatives with our plans, its timetable for being
adopted, etc. sufficiently in advance of the start of the formal program to permit
consideration of constructive suggestions the Council representatives might have
regarding any phase of the program. Unfortunately, some of the representatives
chose not to attend this meeting. The December 17 meeting was scheduled
with the Council's Business Representative to further discuss the subject. Our
intentions in this meeting were the same as mentioned above.
In regards to the Company taking any position as to arbitrability of a "by-pass
of a senior employee in a promotion situation," we feel the record speaks for
itself on these situations. In those cases in the past where employees have
been by-passed due to lack of qualifications, no formal differences of opinion
have been registered. In view of this past history, it would not be prudent of
the Company to take a position on arbitrability unless a controversy should arise,
at which time all of the facts of the specific case could be considered.
In closing, we should again like to emphasize that the announced testing
program, even at this date, is still in the formative stage and we are quite
willing, as we were in the December 17 meeting, to again meet with the
Council and discuss this subject if you desire.
Without further consultation or further meeting with the Council, GE on February
1, 1959, put into effect the new selection program and since said date promotions to
the position of pile operator have been open only to employees passing written
tests.
B. Concluding findings
The credited evidence, as epitomized above, leads to the inescapable conclusion
that GE, in violation of Section 8(a)(5) of the Act, over the Council's protest,
promulgated, and put into effect, a promotion program, without first consulting or
bargaining with the statutory collective-bargaining representative of the employees in
the appropriate unit.12 This finding is buttressed by, not only the position taken
by GE, as disclosed above at the above-referred to meeting of December 17, GE's
December I1 announcement of the new selection program to the rank-and-file reactor
employees involved, prior to consulting or negotiating with their duly selected and
designated representative, but its adamant refusal to bargain about the matter even
after the program had been announced to the employees. It is true that GE was
willing "to discuss" and "explain" the program and receive "constructive" sugges-
tions with respect thereto but it would do nothing more. In short, GE handed its
employees a ready-made program which drastically changed their employee status
regardless of its obligations under the Act. This conclusion finds support in the
testimony of Maguire who clearly stated that GE intended to put the new selection
program into effect whether or not the Council protested.
GE reliance upon the so-called management prerogative clause in the current
bargaining contract in defense of its position is ill placed.
GE's further contention that one of the reasons it adopted the new method of
promoting utility operators to pile operators without prior discussion or prior nego-
tiation with the officials of the Council, was primarly based on the fact that in the
past, it, after securing the consent of the chief steward, made whatever changes in
the employees' working conditions it intended to make and then discussed the
changes with the Council, and hence it did not deviate from past accepted practice,
is without merit. It only adopted the procedure it had always used when putting
into effect a new employee program. Whatever, may be said of that argument the
fact remains that the Council, immediately upon being apprised of the new test,
protested. GE ignored the protest, refused to bargain about the tests, and hence
violated the Act.13
11 See, for example, American Gilsonite Company, 122 NLRB 1006 (Supplemental Deci-
sion) , Beacon Piece Dyeing and Finishing Cc , Inc, 121 NLRB 953 ; I B.S. Manufacturing
Company, et al, 96 NLRB 1263.
11 The fact that it was willing to discuss the program with the Council after it had
unilaterally put it into effect does not "cure the earlier violation." See footnote 16 of
Beacon Piece Dyeing and Finishing Co., Inc, supra.
GENERAL ELECTRIC COMPANY 355
Upon the entire record in the case, the Trial Examiner is convinced, and finds, that
GE refused to bargain in violation of Section 8(a) (5) of the Act, by unilaterally, and
without notice to the certified labor organization, putting into effect, and thereafter
maintaining, a pile operator promotion program; and thereby also violated Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connec-
tion with the operations of Respondent, as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and, such of them as have found to constitute unfair labor practices, tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (5) of the Act, the Trial Examiner will recommend that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
The Trial Examiner finds that by merely ordering GE to cease and desist from
the unfair labor practices found above it would not effectuate the policies of the Act
unless GE was also ordered to restore the status quo. To permit the pile operator
promotion program to remain in effect in the face of the clear mandate of the Act
would enable GE to retain the fruits of its unfair labor practices and thereby give it
an advantage at the bargaining table when and if the issue of the program was
properly raised at the appropriate time. Therefore the Trial Examiner recommends
that GE revoke its pile operator promotion plan and revert to the method and
manner of promoting utility operators to pile operators in effect immediately prior
to the institution of the new program.
Except for the unlawful conduct flowing out of GE's modification of the pile
operator promotion program, the record does not disclose that a danger exists that
GE in the future may commit other unfair labor practices unrelated in kind to that
found. Under the circumstances, it will not be recommended that the Board issue
the usual broad cease and desist order.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. General Electric Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hanford Atomic Metal Trades Council is a labor organization within the
meaning of Section 2(5) of the Act.
3. All GE's weekly salaried production and maintenance employees employed in
and about the Hanford Works, excluding clerical employees and all other personnel,
as more fully set forth in the certification of representatives issued by the Regional
Director for the Nineteenth Region under date of February 24, 1949, now constitute,
and at all times material constituted, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The aforesaid labor organization was on February 24, 1949, and at all times
thereafter has been, the exclusive representative of all employees in unit found
appropriate for the purposes of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing to bargain collectively with the aforesaid labor organization as the
exclusive representative of its employees in an appropriate unit, GE has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of
the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, GE has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
[Recommendations omitted from publication.]