Globe-Union, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1976

222 N.L.R.B. 1081 (N.L.R.B. 1976)

GLOBE-UNION, INC. 1081
Globe-Union, Inc. and International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW). Case 7-CA-11843
February 25, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On September 29, 1975, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Respondent has excepted to the Administra-
tive Law Judge's finding that it violated Section
8(a)(5) and (1) of the Act by unilaterally transferring
some work out of the office clerical unit and by re-
ducing the complement in that unit, without giving
the Union adequate notice of such changes so as to
provide the Union with an opportunity to bargain
over them. We find merit in these exceptions.
As more fully set forth by the Administrative
Law Judge, the Union, which also represents
Respondent's production and maintenance employ-
ees, was certified on February 12, 1975,1 as the col-
lective-bargaining representative for the office cleri-
cal and technical unit involved herein. On February
17, the Union, by letter directed to Respondent's
manager of labor relations, Ross, requested informa-
tion concerning job classifications, etc., of the em-
ployees, necessary for the Union to be able to carry
on collective bargaining. This information was sent
by Respondent on March 5, and was received by the
Union sometime after March 7.
Nelson, the union representative who had dealt
with Respondent on matters concerning the produc-
tion and maintenance employees, was designated by
the Union on February 19 to deal with Respondent
respecting the office clerical unit.
On or about February 28, Ross, Respondent's cor-
porate personnel director, Steininger, and the manag-
er of Respondent's Owosso plant, Ball, held a meet-
ing to explore a cutback of salaried personnel,
1 All events occur in 1975, unless otherwise noted
including employees in the office clerical unit. Al-
though no final determinations were made, certain
tentative plans were made to reassign some of the
unit work outside of that unit.
Ross telephoned Nelson on February 28, told Nel-
son of Respondent's tentative proposals, and in-
formed him that the unit would probably be reduced
by some six personnel on March 7. Ross was not able
to give Nelson the names of the people who would be
affected by the changes, as management was still in
"the raw stage of formulating" the proposed changes.
Ross also told Nelson that his call was "off the rec-
ord" (Ross and Nelson had a longstanding practice
whereby Nelson was not obligated to report an "off
the record" conversation to the employee bargaining
committee.)
During the February 28 conversation, Nelson did
not request that the parties get together and bargain
about the proposed changes. Rather, he stated his
belief that the Union's certification was a guarantee
that the work could not be removed from the unit.
On March 4, Ball informed Ross that management
had given final approval for the plan formulated on
February 28. At this time Ross told Ball that he
would inform Nelson, and that Ball should make
himself available for any discussion of the plan Nel-
son might request. Ross also advised Ball that if Nel-
son was unable to discuss the matter that week, Ross
would consider deferring implementation of the plan
to a later date than March 7.
On March 5, Ross informed Nelson that the plan
had been finalized, and gave Nelson some details of
the plan, including the names of six employees in the
unit who would be affected. Although Ross did not
tell Nelson of the possible deferral of the implemen-
tation of the plan pending discussion, he did mention
to Nelson that the matter was bargainable, and that
Ball would be available for any discussion Nelson
might desire. Nelson did not request bargaining and,
except for objecting that one employee had been se-
lected for reduction out of seniority, merely reiterat-
ed his position that the certification was a guarantee
of the work for the unit.
Nelson telephoned Ball on March 6 or 7, and they
briefly discussed the personnel reduction, developing
nothing which had not been discussed between Ross
and Nelson. Ball told Nelson'that the planned reduc-
tion would take place on the afternoon of March 7.
Nelson did not request any bargaining on the issue,
but threatened to file charges if the work was trans-
ferred out of the unit.
On March 7, Respondent's plan went into effect.
Aside from reassignment of job duties within and
without the office clerical unit, five employees (not
six, as had been planned) were removed from the
222 NLRB No. 173
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. Three were terminated and two, exercising se-
niority rights, transferred to the production and
maintenance unit. As a result, the unit diminished in
size from approximately 17 employees to approxi-
mately 12.
Although the Administrative Law Judge found
that Respondent's motivation for reducing the size of
the unit and transferring job duties was economic in
nature and justified by the record, he found that Re-
spondent had failed to-give the Union adequate no-
tice of the planned reduction to enable it to bargain
prior to the time the reduction occurred, citing Flori-
da-Texas Freight, Inc., 203 NLRB 509 (1973), enfd.
489 F.2d 1275 (C.A. 6, 1974), and Walter Pape, Inc.,
205 NLRB 719 (1973). In so finding, he reasoned,
inter alia, that the February 28 conversation between
Ross and Nelson did not constitute notice in that
there was no final plan at that point over which the
parties could have bargained. Further, according to
the Administrative Law Judge, the fact that this con-
versation was considered by both parties as "off the
record" indicates that neither Ross nor Nelson con-
sidered it to be notice that the reduction would be
put into effect.
The Administrative Law Judge also found that the
notice given by Ross to Nelson on March 5 was in-
adequate for the reasons that there was too short a
period before the reduction was to take place for the
Union to be able to prepare for meaningful negotia-
tions; the Union was newly certified and did not
have a full understanding of the ramifications of the
reduction; the Union had not yet received the infor-
mation requested of Respondent in its February 17
letter; and even the March 5 notice did not contain
the full details of the reorganization.
We do not agree that the Union was not given
adequate notice or that Respondent's implementa-
tion of its reorganizational plan, including the reduc-
tion of the personnel in the office clerical unit, con-
stituted a violation of Section 8(a)(5) and (1) of the
Act.
Ross first learned of Respondent's tentative plan
for reorganization and the possible reduction in the
unit on February 28, and informed Nelson by tele-
phone on the same day. By doing so, Ross did not
present Nelson with a fait accompli, but rather noti-
fied him of changes contemplated by Respondent, to
be put in effect on March 7 if adopted. Unlike the
Administrative Law Judge, we do not believe that the
tentative nature of the plan announced to Nelson de-
tracts from the effectiveness of such notice. To the
contrary, we find such action as taken by Ross more
effectively allowed for meaningful collective bargain-
ing than would his forestalling such notice pending
final approval of the plan by management, such ap-
proval not being handed down until March 4.
The facts in Florida-Texas Freight, supra, relied on
by-the Administrative Law Judge, are distinguisha-
ble. In that case the company, in response to a pro-
posal by the union for a contract clause prohibiting
subcontracting, merely informed the union that it
contemplated subcontracting in the future if it found
it necessary, and wanted to reserve the right to do so.
The gravamen of that situation, and the reason for
the finding of a violation, was that the company did
not put the union on notice at that time that it was
already nego iating, and close to agreement with an-
other company, for subcontracting the work for
which the un on had been certified. Rather, the work
was subcontracted and the jobs in the unit were elim-
inated without any prior notice to the union .2
We also do not agree that the notice given in this
case was inadequate because the February 28 con-
versation was "off the-record." The fact that by so
classifying th,- conversation Nelson would not be ob-
ligated to to 1 the employee bargaining committee
and the added fact that Ross may have wished the
employees not to know of the layoffs beforehand do
not detract f -om the adequacy of the notice to the
Union. Nolscn was the designated representative of
the Union with authority to deal with Respondent.
The Administrative Law Judge's finding that
Respondent's failure to supply the Union with the
information iequested in its February 17 letter until
after the March 7 reductions precluded the Union
from being able to effectively bargain over the reduc-
tions is likewise not persuasive. Nelson admittedly
did not need that information to bargain over the
reductions, nor did he request such information for
that purpose.
At the time Ross first notified Nelson on February
28 that Respondent planned reductions in the unit,
Nelson did not request that the parties bargain about
such reduction. Rather, he simply put forth his posi-
tion that Respondent was precluded from transfer-
ring work from the unit because the Union's certifi-
cation was a guarantee of such work. Similarly, on
March 5, when Ross informed Nelson that the plan
had been finalized, and gave details of the plan, in-
cluding the r ames of the employees involved, and
again on March 6 or 7 when Ball conversed with
Nelson about the reorganization, Nelson simply ad-
hered to his position that the certification guaranteed
the work for he unit, and threatened to file charges.
Even despite Ross' March 5 advisement that the is-
2 Similarly, in Walter Pape, Inc, supra, the finding that the company had
violated Sec 8(a)(5) resulted from its withholding from the union the fact
that it had decided to terminate its distribution routes and lay off its em-
ployees, and was already negotiating with another company to take over
this work -
GLOBE-UNION, INC. 1083
sue was bargainable, and that Ball would be avail-
able for such discussion, Nelson declined to request
that the parties bargain over the issue.
Although the -evidence does not show that Nelson
was aware at the time that Respondent was willing to
defer action on the reductions in the unit pending
such bargaining, it cannot be gainsaid that Nelson,
by his adherence to his position that Respondent was
precluded-from transferring such work, did not in
any way put Respondent's willingness to bargain to a
test. At a time when it was incumbent on the Union
to prosecute its right -to engage in collective bargain-
ing over the- issue, it chose to limit its reaction to
protesting the actions taken, followed closely by its
filing of unfair labor 'practice charges in the instant
proceeding,3
Accordingly, based on all of the evidence, we con-
clude that Respondent- did not redistribute- some of
the work- of the office clerical unit or reduce-its em-
ployee complement without giving the Union ade-
quate notice of such actions, and we will therefore
dismiss the- complaint.
ORDER
spondent also transferred work from that unit, in each in-
stance, without giving the Union a meaningful prior oppor-
tunity to bargain over its decision to make said changes in
the unit employees' terms and conditions of employment.
In its answer which was also duly filed and amended on
the record at the hearing, Respondent denied the commis-
sion of any unfair labor practices.
For reasons which appear hereinafter, I find and con-
clude that Respondent did refuse to bargain with the
Union in violation of Section 8(a)(1) and (5) of the Act
essentially in the manner alleged in the complaint.
At the hearing, the General Counsel, the Charging Party,
and Respondent were represented by counsel. All parties
were given full opportunity to examine and cross-examine
witnesses, to introduce evidence, and to file briefs. Each
party waived the opportunity to make a closing statement
at the conclusion of the hearing. A memorandum brief has
subsequently been received from the General Counsel, a
brief has been received from the Charging Party and a
brief and proposed findings of fact have been received
from the Respondent.
Upon the entire record in this case,' including the afore-
mentioned briefs and proposed findings, I make the follow-
ing:
FINDINGS OF FACT
Pursuant to Sect-ion 10(c) of the National Labor
Relations Act, as-amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
3 American Buslanes, Inc., 164 NLRB 1055 (1967).
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on June 30, 1975, at Detroit, Michi-
gan, pursuant to a charge filed by International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), hereinafter referred to
as the Union or Charging Party, on March 13, 1975, and
served by registered mail upon Respondent, Globe-Union
Inc.,' on or about March 14, 1975, and a complaint and
notice of hearing issued by the Regional Director for Re-
gion 7 of the National Labor Relations Board on April 30,
1975. The complaint, as amended on the record at the
hearing, alleges that Respondent, since on or about March
7, 1975, has refused to bargain with the Union in violation
of Section 8(a)(1) and (5) of the Act in that, on or about
March 7, 1975, Respondent unilaterally terminated or
transferred various employees from a certain collective-
bargaining unit represented by the Union - and that Re-
1 The style of Respondent's name was changed by agreement of the par-
ties at the hearing
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Delaware.
At all times material herein, Respondent has maintained
its principal office and place of business at 5757 N. Green
Bay Avenue in the city of Milwaukee and State of Wiscon-
sin. Respondent maintains other plants throughout the
United States including one at Owosso, Michigan, here in-
volved. Respondent is, and has been at all times material
herein, engaged in the manufacture, sale, and distribution
of automobile batteries and related products.
During the year ending December 31, 1974, which peri-
od is representative of its operations during all times mate-
rial herein, Respondent, in the course and conduct of its
business operations, manufactured, sold, and distributed at
its Owosso, Michigan, plant, products valued in excess of
$500,000 of which products valued in excess of $50,000
were shipped from said plant directly to points located out-
side the State of Michigan.
The complaint alleges, the-answer admits, and I find that
Respondent is now and has been at all times material here-
in an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act. -
2 The transcript of the record in this proceeding has been hereby correct-
ed.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Relevant Supervisory Hierarchy
The complaint alleges, the answer admits , and I find
that at all material times herein the following named per-
sons occupied the positions set opposite their respective
names, and have been and are now supervisors of the Re-
spondent , acting on its behalf, within the meaning of Sec-
tion 2(11) of the Act, and its agents:
Edward A. Ross Manager, Labor Relations
Donald A. Ball Plant Manager of the
Owosso Plant
B. The Appropriate Collective-Bargaining Unit,- the Union's
Certification
The complaint alleges, the answer admits , and I find that
the following unit is appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
All office clerical employees and technical employ-
ees including battery test technicians, quality control
analysts, switchboard-receptionists , secretaries, main-
tenance coordinators, senior accounting clerks, ac-
countants, senior payroll clerks , associate financial
control analysts, order service clerks, clerk typists,
buyer-expeditors, senior cost analysts, senior produc-
tion control analysts, facilities engineers I, process/
equipment engineers I, and manufacturing engineers
I, employed by the Respondent at its Owosso, Michi-
gan plant; but excluding all confidential employees,
managerial employees, professional employees , guards
and supervisors as defined in the Act and all other
employees.
This unit will sometimes be referred to hereinafter as the
office clerical unit.
On October 25, 1974, the Union filed a representation
petition in Case 7-RC-12757 seeking a Board-conducted
election in the foregoing collective-bargaining unit. On
February 4, 1975, pursuant to a Decision and Direction of
Election, issued on January 6, 1975, a majority of the em-
ployees in the above unit, by secret ballot election, desig-
nated and selected the Union as their exclusive bargaining
representative . Thereafter, on February 12, 1975, pursuant
to Section 9(a) of the Act, the Regional Director certified
the Union as the exclusive bargaining representative of the
employees in said unit for purposes of collective bargaining
with respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment.
At all times since February 12, 1975, the Union has, by
virtue of the Certification of Representative issued in Case
7-RC-12757, been the representative for purposes of col-
lective bargaining of the employees in the unit described
above and, pursuant to Section 9(a) of the Act, has been,
and is now, the exclusive bargaining representative of all
the employees in said unit for the purpose of collective
bargaining with respect to wages, hours , and other terms
and conditions of employment.
C. Background and Sequence of Events
Respondent acquired its Owosso plant on July 1, 1972.
From that time until the end of 1974 there was a 30-percent
reduction of the salaried employees at the plant including
five employees in November 1974 in what is now the col-
lective-bargaining unit 3
During the first quarter of 1975 Respondent's business
declined substantially due to the downturn in the automo-
tive industry, a principal source of Respondent's orders.
This resulted in a layoff of some 200 out of 350 employees
in the Owosso plant 's production and maintenance unit,
which is also represented by the Union. The decline also
occasioned a shutdown of all plants in Respondent's bat-
tery division during the last week of January 1975.
In the meantime the Union obtained its certification as
the exclusive collective -bargaining representative of the of-
fice clerical unit at the Owosso plant on February 12, 1975.
On February 17, 1975, the Union directed a letter to Ed-
ward A. Ross, Respondent 's manager of labor relations,
requesting detailed information in respect to the bargain-
ing unit so as to enable the Union to represent these em-
ployees in collective -bargaining negotiations . The informa-
tion requested by the Union included, inter alia, the job
classification of each unit employee and a job description
or summary of each employee 's duties and functions. Al-
though the Respondent complied with the foregoing re-
quest in a letter, dated March 5, 1975, this letter with the
enclosed information was not received by the Union until
after the changes in the office clerical unit , which changes
took place on March 7, 1975, and constitute the gravamen
of the alleged unfair labor practices herein.
On or about February 19, 1975, the Union through its
regional director , Don Ellis, designated Dean Nelson as
the International representative assigned to negotiate and
service the office clerical unit . Nelson was well known to
Respondent's officials because Nelson has also been the
Union 's service representative for the production and
maintenance unit at the Owosso plant for about a year and
a half prior to the events in question here.
On or about February 28, 1975, a meeting was held at
Respondent's Milwaukee office attended by its labor rela-
tions manager, Ross, its corporate personnel director,
Steininger , and Ball, the manager of the Owosso plant. The
purpose of this meeting was to explore the possibilities of
cutting back salaried personnel including employees in the
office clerical unit . No specific arrangements were devel-
oped nor was any final determination made at this meet-
ing, if only for the reason that Ball desired to discuss the
matter with his own supervisors at the Owosso plant before
making any commitments . Certain tentative plans were
made , however, to reassign some of the office clerical unit's
work outside of that unit. In view of these latter plans Ross
decided to contact Nelson , the unit's union service repre-
sentative.
Hence, on February 28, 1975, Ross telephoned Nelson at
3 These reductions took place, of course , prior to the Union's certification
on February 12, 1975
GLOBE-UNION, INC. 1085
Nelson's office at Flint, Michigan. In the ensuing conversa-
tion Ross informed Nelson of Respondent's discussion in
respect to the office clerical unit and the proposal to reas-
sign some of the unit's work outside of the unit. Ross told
Nelson that some six personnel mostly from the office cler-
ical unit would be reduced a week later, March 7, 1975.
Ross did not go into any detail as to what jobs would be
affected and could not provide Nelson with any names
because Respondent's management itself was just in the
"raw stage of formulating" the proposal in this regard.
"Ross also advised Nelson that the call was "off the record."
For his part Nelson disagreed with Ross that work could
be removed from the unit telling Ross that the Union's
certification was a guarantee of this work a
- The significance of Ross' "off the record" denomination
of the conversation was to call into play an arrangement of
long standing between Ross and Nelson (in respect to their
dealings in the production and maintenance unit) so that
Nelson would not have to repeat the conversation to
Nelson's bargaining committee for the office clerical
unit-a committee which had already been formed.
On March 4; 1975, Ball informed Ross on the telephone
that the reduction proposal of February 28, 1975, dealing
with the office clerical unit had been discussed with
Respondent's local officials at the Owosso plant and that a
plan had been definitely formulated to effect that reduc-
tion. Ross told Ball that he, Ross, would inform Nelson of
the plan and that if Nelson wanted to discuss the matter
further with Ball, Ball should make himself available. Ross
also advised Ball that if Nelson contacted Ball and if Nel-
son then stated that he, Nelson, would be unable to meet to
discuss the matter that week, he, Ross, would consider de-
ferring the proposed reduction past its scheduled imple-
mentation on March 7, 1975.
On March 5, 1975, Ross telephoned Nelson and told
Nelson that the planned reduction of the office clerical had
been agreed to by Respondent's management. Ross also at
this time gave Nelson a few of the details of the plan. Thus,
he told Nelson that six named employees in the office cleri-
cal unit would be affected, that some work would be as-
signed outside that unit (including an assignment to one
supervisor who would perform about 60 percent of the
work previously performed by a unit employee), and that
the changes `would occur on March 7, 1975. Nelson again
took the position that the certification was a guarantee of
the work. While Ross disagreed with Nelson's position,
Ross admitted to Nelson that the matter was bargainable,
that he, Nelson, had talked the matter over with Ball and
that if Nelson wished to pursue the matter further, Ball
would be available. Nelson also objected that one employ-
ee, Adams, had been selected for reduction out of senior-
4 These findings are based on the credible testimony of Ross in this re-
gard, which I found to be morn certain than that of Nelson. The differences
in Nelson's version are, in any event , irrelevant to the ultimate issues in the
case. Nelson testified that other matters were discussed in this conversation
including the production and maintenance unit and the makeup of the bar-
gaming committee for the office clerical unit-matters which, according to
Ross, were discussed in a telephone conversation between the two men
several days earlier. It is clear, however, that this bargaining committee for
the office clerical unit had been formed and that both Ross and Nelson
were aware of this fact when they spoke on or about February 28
ity. Nelson did not make a request to bargain about the
reduction. On the other hand, in the absence of any show-
ing that Ross told Nelson that the scheduled reduction
might be postponed if bargaining were requested, I con-
clude that no mention was made by Ross of this possibili-
ty.5
On March 6 or 7, 1975, Nelson telephoned Ball and
briefly discussed the personnel reduction in the office cleri-
cal unit. This conversation developed nothing that had not
been mentioned in the Ross-Nelson conversation of March
5, previously discussed, except that Nelson threatened to
file charges if unit work were assigned to individuals out-
side the unit. Nelson did not request bargaining in respect
to the reduction. On the other hand, there is no indication
that Ball told Nelson that there was a possibility that the
reduction could be postponed, if bargaining were request-
ed. Ball rather told Nelson that the action was planned to
take place late in the afternoon on March 7, 1975.
A personnel reduction did occur on the afternoon of
March 7, 1975. It included five employees (not six as Nel-
son had been previously advised by Ross). Nelson was nev-
er notified by Respondent in regard to the actual reduction
(viz five employees) prior to its occurrence. Three unit em-
ployees were terminated-Judith Adams, Carol S. Seelhoff,
and Donald F. Shenk. Two other unit employees, G. R.
Fairchild and Larry Ott, were also removed from the unit
but, exercising certain seniority rights they possessed in the
production and maintenance unit, they transferred thereto.
The job descriptions of these five individuals were out-
lined in detail in Joint Exhibit 1 received in evidence at the
hearing herein. This same exhibit shows the disposition of
each of the functions of each of these five employees, e.g.
"dropped," reassigned to another employee, or reassigned
to a supervisor or other nonunit personnel. More particu-
larly, various duties of all five employees (Seelhoff, Ott,
Fairchild, Shenk, and Adams) have been reassigned to su-
pervisors and nonunit personnel-in Shenk' s case , 75 per-
cent of his duties were thus reassigned. In addition to the
reassignments reflected in this Joint Exhibit, it was also
shown that the duties formerly performed by employee
Carlton (a unit employee to whom most of Ott's duties
have been reassigned) have been reassigned to Lewis Cole,
another supervisor. Finally, as the result of the reduction
the office clerical unit has declined to some 12 employees
at the time of this hearing (from about 17 before the reduc-
tion).
After March 7, 1975 (on a date not disclosed by the
record, but obviously before negotiations in the office cleri-
cal unit began on April 1, 1975), the Union received the
Respondent's letter dated March 5, 1975, containing the
information requested by the Union on February 17, 1975,
in respect to the job functions, date of hire, etc. of unit
personnel.
As previously noted, the charge herein was filed on
March 13, 1975.
5 These findings are based on the credible testimony of Ross in this re-
gard, whose testimony, as I have already held, impressed me as more certain
than that of Nelson The principal difference between Ross' version and
that of Nelson is that Ross, unlike Nelson, testified that he told Nelson that
six named employees would be removed from the unit as the result of the
force reduction . Nelson testified that only Adam 's name was mentioned.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent received the Union's first bargaining pro-
posal on April 15 or 16, 1975.
As mentioned the complaint and notice of hearing in the
present case issued on April 30, 1975.
On May 6, 1975, during the course of further negotia-
tions regarding the office clerical unit, Ross broached to
Nelson the subject of the reduction of March 7, 1975. Ross
told Nelson that, despite the pendency of the present pro-
ceedings, Respondent and the Union were eventually going
to have to resolve the issues at the bargaining table. Dis-
cussions continued on this matter between Ross and Nel-
son from May 6, 1975, until the time of the hearing herein,
but there is no indication that the matter has been finally
resolved.
Concluding Findings
The General Counsel, without demur from the Charging
Party, conceded on the record at the hearing that the
Respondent's reduction of the complement of the office
clerical unit was not accomplished for discriminatory rea-
sons. In view of this concession and the undisputed evi-
dence of the decline of Respondent's business at the time
in question, I conclude that Respondent's motivation for
the reduction was economic.
This notwithstanding, where a reduction in unit person-
nel will, as here, result in substantial part from the reas-
signment of unit work to individuals working outside the
unit, the proposal to effect such a reduction becomes a
mandatory subject of bargaining between an employer and
the exclusive collective-bargaining representative of his
employees. And the employer has the obligation to bargain
about the proposed reduction prior to the time scheduled
for it to occur.6
None of the foregoing is in dispute in the present case.
What is disputed is whether Respondent did, in fact, give
the Union adequate notice of the proposed changes in its
operations in sufficient time to provide the Union with an
opportunity to bargain prior to the time the reduction oc-
curred. I conclude that no such adequate notice was pro-
vided by Respondent to the Union here.
To begin with, there was no notice at all of the final
reorganization plan which was implemented; that is, the
reduction of five employees instead of six involved in the
first plan. While it is possible that the final plan was a
lesser plan entirely encompassed by the earlier version, the
record does not show this. That is, it is unclear whether the
proposal to eliminate six employees would have involved
merely the reallocation of the work of the sixth employee
to certain personnel (in addition to the now existing ar-
rangements for reallocation of the duties of the five em-
ployees who were separated from the unit) or whether the
original plan called for a totally different reallocation of
the work of all six employees. All that the record shows in
this regard is that the plan to remove the sixth employee
from the unit had changed because of an injury to him.
This change in the plan was believed by Ross to have oc-
curred sometime between March 4 and 7, 1975.
But even if the change in plan was merely a lesser plan
simply included in the larger plan and involved no differ-
ent reallocation of duties except for the sixth employee, I
nonetheless conclude that Respondent did not give ade-
quate notice to the Union of its intentions. I reach this
conclusion for the reason that Ross' "off the record" com-
munication to Nelson on or about February 28 was not
intended to be, nor was it recognized as, notice of the im-
pending reduction on March 7.
Thus, it was Ross who told Nelson that the communica-
tion of February 28 was "off the record." This meant, as
with previous communications between the two individuals
(on matters dealing with the production and maintenance
unit), that Nelson would not have to tell_ his bargaining
committee. And, according to Ross, Ross did not want
Nelson to tell the bargaining committee because, Ross tes-
tified, Ross did not want "everyone to get upset about
something-that was very, very tentative at that point " Ross
admitted that at the time Respondent wasn't even sure it
was "going to have a reduction." Further indication that
neither individual considered the conversation of February
28 to be notice that the reduction was going to be put into
effect was that neither mentioned the conversation in the
initial investigation, of the case. Nelson did not mention it
at all in his prehearing affidavit given on March 25, 1975.
Ross did not mention it in Respondent's first two state-
ments of position in the case dated March 20 and April 9,
1975, wherein Respondent gave its version of the facts of
the case.
Moreover, as of February 28, 1975, there was no plan to
bargain about, as Ross admitted. Matters were at best
"very, very tentative" and were dependent on the results of
Ball's deliberations with Owosso plant officials the follow-
ing week. When Ross spoke to Nelson on February 28,
Ross provided Nelson with no details of the reduction and
no names of employees expected to be affected for the
reason, according to Ross' testimony, that "we
[Respondent's officials] were just in the raw stages of for-
mulating that ourselves" and because Ross "couldn't give
him [Nelson] any names or details."
In all the circumstances, it is obvious that Ross gave
Nelson no notice of a reduction- plan when the two men
spoke over the telephone on February 28 .7 Indeed there
was no plan at that point about which the parties could
have bargained.
The eventual notice of March 5, 1975, by Ross to Nelson
was likewise inadequate for several reasons. Primarily, it
was given with too short a period remaining for the Union
to prepare for and engage in meaningful negotiations be-
fore the reduction was to take place on March 7, 1975.
Further, it must be recalled that this was a newly certified
unit and the Union did not have the full understanding of
the ramifications of the reduction which it might have had
on the basis of longer bargaining experience.s Nor had the-
6 Fibreboard Paper Products Corporation v N L R.B, 379 U.S. 203 (1964).
The Respondent has, as already found, admitted that the office clerical unit ' See Florida-Texas Freight, Inc, 203 NLRB 509, 510 (1973), enfd. 489
is appropriate and that the Union at all pertinent times herein was the F.2d 1275 (C.A. 6, 1974).
exclusive bargaining representative of the employees in this unit within the s Respondent attempted to show that Nelson was familiar with the unit
meaning of Section 9(a) of the Act. based on his prior visits to the plant and on the basis of the transcript of the
GLOBE-UNION, INC_ 1087
Union at that time or any time before March 7, 1975, been
provided with the information it had requested of Respon-
dent almost 3 weeks previously to enable it to conduct
knowledgeable negotiations for the office clerical unit. Fi-
nally there is no showing by Respondent that the oral no-
tice given by Ross to Nelson on March 5, 1975, contained
the full details of the reorganization and all duty realloca-
tions.
Therefore, I conclude based on all the foregoing that no
notice was given by Respondent to the Union in respect to
any reorganization or reduction of its employees in the of-
fice clerical unit until March 5, 1975, and thereafter, and
that such notice was inadequate to provide the Union with
an opportunity to represent the employees meaningfully in
any negotiations about such changes which were scheduled
to, and did occur, on March 7, 19,75 .1
By redistributing some of the work of the office clerical
unit outside that unit and reducing its employee comple-
ment on March 9, 1975, after failing to give the Union
adequate notice of such redistribution of work and conse-
quent force reduction, I further conclude that Respondent
has refused to bargain with the Union in violation of Sec-
tion 8(a)(5) and (1) 10 of the Act.ll
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
the Union is a labor organization both within the meaning
of the Act.
2. The following employees constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of the Act:
All office clerical employees and technical employ-
record in the representation proceeding. Nelson's previous contacts at the
plant were, however, too limited or casual to provide him a basis to under-
stand fully the work of the unit or the functions of the employees. As to the
transcript of the pnor proceeding, there is no showing that the data therein
would continue to be accurate in the light of Respondent's efforts to cut
back its personnel in all areas of its operations. These efforts continued into
late 1974 and early 1975.
9 See Walter Pape, Inc., 205 NLRB 719 (1973)
10 Id.
11 In holding that Respondent failed in its bargaining obligation pnor to
March 7, 1975, I note that such a finding is warranted not only on the basis
of the evidence recited as to events pnor to that date but also on the basis of
Ross' admission on May 5, 1975, that the issues as to the reduction were
eventually going to have to be resolved at the bargaining table Since Ross
admitted that the requirement to bargain over this matter remained, it fol-
lows not only that Respondent had the obligation to bargain over the reor-
ganization and reduction of March 7, 1975, but also that it had not, prior to
May 5, lived up to this obligation.
ees including battery test technicians, quality control
analysts, switchboard-receptionists, secretaries, main-
tenance coordinators, senior - accounting clerks, ac-
countants, senior payroll clerks, associate financial
control analysts, order service clerks, clerk typists,
buyer=expeditors, senior cost analysts, senior produc-
tion control analysts, facilities engineers I, process/
equipment engineers I, and manufacturing engineers
I, employed by the Respondent at its Owosso, Michi-
gan plant; but excluding all confidential employees,
managerial employees, professional employees,
guards, and supervisors as defined in the Act and all
other employees.
3. The Union was at all times material herein the exclu-
sive bargaining representative within the meaning of Sec-
tion 9(a) of the Act of the employees in the above-de-
scribed appropriate unit.
4. By unilaterally reassigning the functions and duties of
the employees in the above-described appropriate unit on
March 7, 1975, to individuals outside that unit and conse-
quently reducing the unit complement without first giving
the Union adequate notice of the opportunity to bargain
over this reassignment of work and employee reduction,
Respondent has violated, and is violating, Section 8(a)(5)
and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act by unilaterally reassigning the
duties and functions of employees in its office clerical unit
to individuals outside that unit and reducing the comple-
ment of that unit without giving the Union adequate notice
of the opportunity to bargain about such changes, I shall
recommend that Respondent be ordered to cease and de-
sist from such unlawful acts and to take certain affirmative
action designed to effectuate the policies of the Act includ-
ing the posting of an appropriate notice.
Both the General Counsel and the Charging Party re-
quested that I recommend the restoration of the status quo
ante with full backpay to the employees affected by the
change. I reject this because the motivation for
Respondent's action here was concededly not discrimina-
tory, and, as I have found, was economic in nature. More-
over, Respondent has not hired other employees to per-
form the work done by these affected employees nor has it
subcontracted such work. Indeed some of the work has
been eliminated and part of the remainder has been redis-
tributed to employees in the unit.
I do deem it necessary, in order to effectuate the purpose
of the Act, to recommend an order requiring that the Re-
spondent bargain with the Union concerning the effects of
the reorganization on its employees and I shall further rec-
ommend a limited backpay order designed both to make
whole the employees for losses suffered as the result of the
violations and to recreate in,some practicable manner a
situation in which the parties' bargaining position is not
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entirely devoid of economic consequences for the Respon-
dent.
In making this recommendation I am not unmindful that
the parties have bargained to some extent since May 6,
1975, about this matter. However, the entry of this order
will make clear that Respondent is obligated to bargain
about the effects of this reorganization upon the employees
in the unit.
The limited backpay order I will recommend is anala-
gous to the backpay order issued by the Board in Walter
Pape, Inc., supra. Thus the Respondent shall pay the sepa-
rated employees 12 backpay at the rate of their normal wag-
es when they last worked for Respondent in the office cleri-
cal unit from March 7, the date the employees were
separated from that unit, until the occurrence of the earli-
est of the following: (1) the date the Respondent bargains
to agreement with the Union on those subjects pertaining
to the effects of the work reassignments and reductions on
the employees separated; (2) a bona fide impasse in bar-
gaining; (3) the failure of the Union to request bargaining
within 5 days of this decision or to commence negotiations
within 5 days of the Respondent's notice of its desire to
bargain with the Union; 13 or (4) the failure of the Union to
bargain in good faith, but in no event shall the sum paid to
these employees exceed the amount he would have earned
as wages from the date on which Respondent effected the
reduction to the time he secured equivalent employment
elsewhere or the date on which the Respondent shall have
offered to bargain, whichever occurs sooner; provided,
however, that in no event shall this sum be less than these
employees would have earned for a 2-week period at the
rate of their normal wages when last employed by Respon-
dent in the office clerical unit.
[Recommended Order omitted from Publication.]
13 If upon compliance Respondent can demonstrate that it did in fact
12 offer to bargain on or after May 6, 1975, about the effects of the reorganiza-
Judith Adams, Carol S. Seelhoff, Donald F Shenk, G. R Fairchild, tion and the Union thereafter refused to bargain about that subject, then
and Larry Ott this contingency should be deemed to have occurred.