Owens-Corning Fiberglas Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1987

282 N.L.R.B. 609 (N.L.R.B. 1987)

OWENS-CORNING FIBERGLAS 609
Owens-Corning Fiberglas Corporation and Insulation
Production Workers Local Union No . 1. Case
17--CA-12843
5 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 29 May 1986 Administrative Law Judge Ber-
nard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General -Counsel filed an answering brief,
cross-exceptions, and a memorandum supporting
her cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.
Like the judge, and unlike our dissenting col-
league, we find that the employee purchase pro-
gram in this case is a benefit that accrued to em-
ployees out of their employment relationship with
the Respondent, and thus is clearly a mandatory
subject of bargaining. Such programs` have been
held to be mandatory subjects of bargaining in the
past. See Master Slack, 230, NLRB 1054, 1055
(1977), enfd. 618 F.2d 6 (6th Cir. 1980) (layaway
purchase program in employer's outlet store). See
also Central Illinois Public Service Co., 139 NLRB
1407, 1415 (1962), enfd. 324 F.2d 916 (7th Cir.
1963); Gulf Refining & Marketing Co., 238 NLRB
129, 132 (1978). Moreover, the employee purchase
program here had, been in effect for more than 20
years and apparently was of significant economic
benefit to participating employees. Consequently,
our colleague's reliance on Benchmark Industries,
270 NLRB 22 (1984), is misplaced. That case in-
volved token "gifts" of holiday lunches or dinners
1 In affirming the judge's conclusion that the Respondent violated Sec.
8(aX5), we do not imply that an employer may not lawfully fully develop
a plan for a change , in working conditions before announcing to the union
its intention to implement that plan. If such an announcement is made suf-
ficiently in advance of implementation to provide time for meaningful
bargaining and the union fails to request bargaining, the employer may
lawfully implement the plan. The gravamen of the Respondent's offense
here was that, according to testimony credited by the judge, the manage-
ment representatives who announced the plan to union representatives on
August 6 also made statements indicating that nothing could be done
about the plan. We further note the absence of evidence showing that
those management representatives lacked authority to communicate the
intent of the Respondent's headquarters regarding implementation of the
plan or that the union representatives should reasonably have believed
that the management representatives were not knowledgeable spokesmen.
and 5-pound hams; the latter had been given to em-
ployees for only 3 years.
Our colleague also appears to confuse the issue
of whether the employee purchase program was a
mandatory subject of bargaining with the question
of whether the Union waived its statutory right to
bargain over the terms of the program by its prior
actions. Again, we agree with the judge that no
such waiver was made. The Board will not lightly
infer waivers of statutory rights. See, e.g., Rockwell
International Corp., 260 NLRB 1346, 1347 (1982).
Where, as here, the terms of an employee purchase
program were never discussed during contract ne-
gotiations, we will not infer a waiver by the Union
of its right to bargain over proposed , changes in
that program. Rockwell, supra-2 Nor does the fact
that the Respondent previously changed the terms
of the program without bargaining preclude the
Union from effectively demanding to bargain over
the most recent change. A union's, acquiescence in
previous unilateral changes does not operate as a
waiver of its right to, bargain over such changes for
all time. Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120 (3d
Cir. 1983); NLRB v Miller Brewing Co., 408 F,2d
12 (9th Cir. 1969); Rockwell International Corp.,
supra at fn. 6.3
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by modifying its em-
ployee purchase plan without giving the Union an
opportunity to bargain, the judge correctly ordered
the Respondent,to reinstitute the purchase plan that
was in effect until 12 August 1985. However, we
agree with the Respondent and the General Coun-
sel that it was improper for the judge to order that
that plan be kept in effect for 6 months before the
Respondent could even bargain with the Union
over implementing its proposed new program.4 By
issuing such an order the Board would, in effect,
be imposing a substantive contract term on the par-
ties, rather than simply enforcing the requirement
z The Board stated (260 NLRB at 1347):
Where, as here, an employer relies on a purported waiver to estab-
lish its freedom unilaterally to change terms and conditions of em-
ployment not contained in the contract, the matter at issue must
have been fully discussed and consciously explored during negotiations
and the union must have consciously yielded or clearly and unmistak-
ably waived its interest in the matter [Emphasis added ]
s We are at a loss to understand our dissenting colleague's attempt to
portray the Board as some sort of officious intermeddler , interfering gra-
tuitously with the smooth functioning of the employee purchase program
at issue here . The Board is not attempting (to use his own analogy) to
force the Respondent and the Union to change the "boundary markers on
which [they] have long relied" Rather, the Board is acting at the request
of one of the "local inhabitants" to require ' the other to observe the
"boundary marker" that it unilaterally changed , to the detriment of its
neighbor, and in violation of the law that the Board is entrusted to en-
force.
4 The judge thought that bargaining would "amount to no more than a
charade unless the former program was reinstituted for 6 months.
282 NLRB No., 85
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain in good faith. The Board is not empow-
ered to issue such an order . H. K. Porter Co. v.
NLRB, 397 U.S. 99 (1970). Accordingly, we shall
modify the recommended remedy and Order to
eliminate the requirement that the former purchase
plan remain in place for 6 months after being rein-
stituted.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Owens-Corning Fiberglas Corporation,
Toledo, Ohio, its officers, agents, successors, and
assigns, shall take the action .,set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
"(a) 'Reinstitute for, the benefit of its employees
represented by the Union the employee purchase
program in existence until 12 August 1985, and
make whole, the union-represented employees for
any losses suffered by them, in the manner set forth
in the section entitled `The Remedy."'
2. Substitute the following for paragraph 2(b).
"(b) Bargain in good faith with the Union, as the
exclusive bargaining representative of the Respond-
ent's employees in the appropriate unit, concerning
any proposed modifications in the reinstituted em-
ployee purchase plan."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DoTsoN, dissenting.
I do not agree with my colleagues' adoption of
,the judge's fording that the Respondent's employee
purchase plan was a mandatory subject of bargain-
ing and that, therefore, the Respondent violated
Section 8(a)(5) by unilaterally altering the plan's
terms.
The Respondent has maintained an employee
purchase plan for more than 20 years whereby em-
ployees could purchase items manufactured by the
Respondent at a discount. Prior to 1977, the items
were sold through a store operated by the Re-
spondent, In 1977, however, the store was closed
and the sale of all items except insulation was dis-
continued. The Respondent, did not bargain with
the Union over these changes. Since then the plan
has continued to be administered entirely by the
Respondent. On 6 August 1985 the Respondent in-
formed the Union that changes in the terms of the
employee purchase plan would be implemented on
12 August. The effect of these changes was to in-
crease, the number and variety of items that could
be purchased under the plan, but the new rebate
would be smaller than the earlier discount and
there would be a limit on how much insulation
could be purchased.
Unlike the majority, I do not believe that the Re-
spondent's employee purchase plan constituted
terms and conditions of employment subject to the
bargaining requirement . It is more analogous to an
employer's grant of gifts to employees that the
Board has found not to be a mandatory subject of
bargaining.' Although the plan has been in exist-
ence for many years, the Respondent has exercised
exclusive control over its operation, including the
items offered for sale, the way in which sales are
handled, and the price of the items sold . The pro-
gram also was available to all employees regardless
of their performance, seniority, or any employ-
ment-related factor. Further, although the plan has
been in existence since at least 1962, it has never
been formally discussed in negotiations and has not
been referred to in any of the collective-bargaining
agreements . The Respondent also did not bargain
with the Union prior to the 1977 closing of the
store and limitation of purchases on insulation. This
silence on the part of the Union for such a long
period of time indicates an acknowledgement that
the employee purchase plan was not a bargainable
matter.2 Consequently, I do not consider the plan
to be within the scope of the Respondent's bargain-
ing obligation. Nor do I consider the Board's intru-
sion, after nearly a generation of mutual under-
standing between these parties about the status of
the employee purchase plan, a felicitous action.
Like the visiting surveyor who finds the boundary
markers on which the local inhabitants have long
relied suddenly to be misplaced, our handling of
these parties' affairs is simply disruptive. Accord-
ingly, I would find that the Respondent did not
violate Section 8(a)(5) and (1) by unilaterally alter-
ing the terms of the employee purchase plan.
' Benchmark Industries , 270 NLRB 22 (1984).
8 Arbitrators have found in analogous situations that one party's con-
tinued failure to object to the other party's interpretation of a contract
constituted acceptance of such interpretation so as to in effect make it
mutual. Elkouri and Elkouri, How Arbitration Work; 406, 407 (1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
OWENS-CORNING FIBERGLAS
WE WILL NOT fail to bargain collectively in
good faith with Insulation Production Workers
Local No . 1 as the exclusive representative of our
employees in the appropriate unit about substantial
changes in the employee purchase program.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reinstitute at the Fairfax plant in
Kansas City, for the benefit of our employees rep-
resented by the Union, the employee purchase pro-
gram in effect until 12 August 1985.
WE WILL bargain in good faith with the Union,
as the exclusive bargaining representative of our
employees in the appropriate unit , concerning any
proposed modification in the reinstituted employee
purchase plan.
WE WILL make whole, with interest , our union-
represented employees for any losses suffered by
them since 12 August 1985 as a result of being re-
quired to purchase insulation under the new pro-
gram instead of the old one , with interest as set out
in the Order of the Board.
OWENS-CORNING FIBERGLAS CORPO-
RATION
Julie Hughes, Esq., for the General Counsel.
Stanley E. Craven, Esq. (Spencer, Fane, Britt & Browne),
of Kansas City, Missouri, for the Respondent.
Dan Messer, of Kansas City, Kansas, for the Charging
Party.
DECISION
BERNARD RIEs , Administrative Law Judge. This case
was tried in Kansas City, Kansas, on 3 April 1986. The
complaint alleges a single violation of Section 8(a)(5) of
the Act, specifically, that Respondent Owens-Coming
Fiberglas Corporation acted unlawfully when, about 12
August 1985, it unilaterally changed an existing program
for employee discount purchases of its manufactured
goods.
Briefs have been filed by the General Counsel and Re-
spondent . My consideration of the record' and the briefs
leads me to the following conclusions.
I. BACKGROUND
Respondent produces wool fibrous glass products at
the Kansas City, Kansas facility involved here , where it
employs, inter alia, some 700-800 production and mainte-
nance workers.2 According to the complaint and the
1 Certain errors in the transcript have been noted and corrected.
2 This facility is known as the Fairfax plant . Respondent also operates
nearby a North Kansas City plant, which is not part of the Fairfax bar-
gaining unit , and also some other unrelated small proximate facilities.
611
answer , at all times material, "the Greater Kansas City
Building and Construction Trades Council and certain of
its affiliated Locals, including [Insulation Production
Workers Local Union No. 1, the Charging Party here],
have jointly been the designated exclusive collective-bar-
gaining representative of the Unit" of production and
maintenance workers and have been recognized as such
by Respondent , as embodied in successive collective-bar-
gaining agreements , the most recent covering the period
16 April 1984 to 16 April 1987. The relationship has ex-
isted since around 1947.
Although the bargaining agreements have never re-
ferred to the matter,3 over the years Respondent has
maintained at the Fairfax plant a program allowing em-
ployees to purchase at a discount items manufactured by
Respondent. For some period of time, ending perhaps in
1977, a small room in the plant was devoted to the dis-
count sale of mostly insulation products as well as a vari-
ety of Respondent-made items such as glasses, bows and
arrows, "elliptical pool tables,"4 etc. When the "store"
was discontinued , arrangements were made for the sale
to employees of insulation products only through the
personnel office at (according to the pleadings) Respond-
ent's cost plus 5 percent . To make a purchase, an em-
ployee would inform the personnel secretary of the em-
ployee's requirements ; after she had written an order, the
employee would pay her and take the receipt to the
warehouse gate to pick up the order.
An "intra-Company" memorandum , dated 30 July
1985 and received in Kansas City, according to Person-
nel Manager Browne, on 5 August, from the manager of
Respondent 's administrative services section located at
Respondent 's national headquarters in Toledo, Ohio, an-
nounced to "All Owens-Corning Managers" that "[a]
new Employee Purchase Program (EPP) for company
products begins August 12." It went on to state that Re-
spondent's active and retired employees "will be reim-
bursed 20 percent of the net product purchase price of
Owens-Corning bathing fixtures , residential building in-
sulation, and ceiling panels," and " 10 percent of the net
product purchase price of Owens-Coming shingles, roll
roofing, and Energy Shield R foam sheathing."6
The memorandum then described how the new pro-
gram would operate : employees would buy qualifying
products from local retail outlets, fill out and send to
Toledo, together with his or her sales receipt , two copies
of a printed three-copy "Employee Purchase Program
(EPP) Reimbursement Application," and thereafter re-
ceive his or her reimbursement.
The rebate form lists other restrictions on the reim-
bursable purchase of products : e.g., an employee can
only make such a purchase of insulation once every 4
years, and can buy only 2000 square feet each time.
8 Not, according to Personnel Manager William Browne , have the ne-
gotiations ever formally addressed the subject since he arrived in 1962.
* Presumably accompanied by the "twisted cue" and "elliptical billiard
balls" fantasized by Sir W S . Gilbert as a punishment befitting the crime
of "billard [sic] sharp" in "The Mikado."
S Requests for rebates for the latter product "must be approved by the
EPP Administrator in Toledo, OH, prior to purchase."
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are similar restrictions on four of the five other
products that come under the program.
The 30 July memorandum to "All Owens-Corning
Managers" also set out in some detail the manner in
which the program would be publicized to managers, su-
pervisors, retirees, and Toledo employees (materials, in-
cluding reimbursement applications , would be distributed
to the managers and supervisors responsible for the pro-
grams in their local area "during the week of August 5";
Toledo employees would receive an application and a
flyer by "desk-to-desk" distribution on August 12;
"[r]etirees will be informed of the program through an
article in the August issue of Dialog"; articles would also
appear in the "August 9" issue of Tower News and in
August and September plant publications), but apparent-
ly left to the discretion of local plant managers the
method and timing of the announcement to active em-
ployees.6
Business Agent Dan Messer, the highest ranking offi-
cer of Local 1, was first told about the new program at a
quarterly "communications" meeting on the morning of
6 August, when Personnel Manager Browne read to
Messer and a representative of another union the con-
tents of the 30 July memo . Messer asked Plant Manager
Jim Hansen "why we are having a change like this," and
further stated that he "did not feel that our members
would like this kind of change," Browne said that he had
heard at a personnel managers conference a year before
that the new program was being considered because of
complaints from retailers in Respondent 's plant areas of
price competition from Respondent resulting from the
current program . Hansen said that "they weren't doing
away with the employee purchase plan, that they were
altering it and, while you would not get as large a dis-
count on the building insulation , that you would have a
larger variety of products to choose from." A "lengthy
discussion ensued," which, boiled down, consisted of the
Union , "protest[ing] that we didn't like it" and manage-
ment saying that the program was "sent to them from
above, meaning Toledo, and that there was really noth-
ing that could be done."
On either G or 7 August, the personnel department
posted notices stating that "[e]ffective August 12, 1985,
Owens-Corning will introduce an employee purchase
program covering OCF manufactured products." The
notices , announced that 7 August would be the last day
that items could be purchased through the personnel
office; on 8 August, however, the notices were amended
to reflect that the existing program would be extended
through 12 August . Browne testified that the extension
was granted because "we had enough of a run on pur-
chases that we felt that it was only fair to give them a
couple of extra days."
By letter dated 15 August , Messer wrote to Manager
Hansen to make a "somewhat belated response" to three
of the issues discussed at the 6 August meeting. He first
broached the "unilateral decision" to discontinue "insula-
tion sales to employees on a direct basis," a longstanding
practice 'that the Union considered a "negotiable bene-
6 operates some 71 plants throughout the country and em-
ploys altogether about 25 ,000 employees.
fit." Messer went on: "We would like to meet with the
appropriate - Corporate officials to discuss the future of
this issue before proceeding in any other direction," and
he briefly stated sources of his dissatisfaction with the
new program-the higher cost to employees for insula-
tion and the "cumbersome reimbursement procedure."
Hansen's 26 August reply, while "agree[ing]" with
Messer that "the change in policy was arbitrary not only
for Kansas City but for all, locations," thought that the
new program had at least the advantage of providing dis-
counts for additional products . However, he wrote, "We
are currently trying to gain exemption for [sic] the new
policy and return to plant sales of insulation ." Evidently
nothing ever came of any such request for exemption
that Hansen may have made.
On 17 August, Steward Noland filed a grievance about
the new plan, calling it "a lessening of an employee ben-
efit" and a "break from a -longstanding past practice,"
but it was eventually withdrawn and the underlying
charge here was filed.
Personnel Manager Browne testified that, in addition
to the change from a "store" concept in 1977, the only
other modification of significance in the employee sales
area occurred in the late 1970s, when Respondent
stopped selling scrap insulation to employees at a-penny-
a-square-foot and raised the price to the manufactured
cost. There was no advance discussion of the change
with the Union.
Under the direct sales program in effect until 1985,
there were at the Fairfax plant in 1984 total insulation
sales to employees amounting to $36 ,824.63; this included
possible sales not only to about 930 Fairfax plant and
clerical employees but also to , roughly, 200 employees in
smaller Owens-Corning facilities in the Kansas City area.
Total labor costs in 1984 at the Fairfax plant, including
fringes, premiums , and taxes, ran about "35 plus" million
dollars. In 1985 , up to 12 August, $29,605. 61 in insulation
sales had been made; labor costs for that entire year
were about "34 and a half" million.
Steward Noland testified that he went through the
new procedure in January 1986 , buying insulation "on
sale" at a local store for "somewhere in the vicinity of
$11.00 a roll" for 37 rolls. About a week after filing for
reimbursement in Toledo, he received his 20-percent
rebate of about $85. A price list given to Business Agent
Messer showing the cost to employees of various items
as of the last days of sales under the old program shows
that Respondent 's cost to employees for the same prod-
uct at that time was $5 .75 per roll.
If we were to assume that, like Noland in 1986, each
employee who purchased insulation in 1984 bought 37
rolls at $5.75 apiece (or $212.75) it would mean that
some 173 employees (the distribution between union-rep-
resented and unrepresented purchasers is unknown) par-
ticipated in the program ($36,824 = $212.75 = 173) and
that each saved $112.85 by buying their insulation before
12 August 1985 . (37 x $11 = $407 less 20 percent
($81.40) = $325.60; 37 x $5.75 = $212.75; $325.60 -
$212.75 = $ 112.85 .) It hardly need be said that the
number of purchases and the amounts purchased could
have varied significantly from this supposition.
OWENS-CORNING FIBERGLAS 613
II. DISCUSSION AND CONCLUSIONS
The statutory injunction in Section 8(aX5) requiring an
employer to "bargain collectively" with the representa-
tives of his employees means , according to Section 8(d),
that he must "confer in good faith with respect to wages,
hours, and other terms and conditions of employment
. . ." Collective-bargaining agreements do not neces-
sarily reflect all the terms and conditions of employment
that may impose , by virtue of Section 8(aX5) of the Act,
a bargaining obligation on employers to the unions that
represent their employees . If, of course , a specific benefit
is spelled out in the contract, an employer normally may
not modify or rescind that term without the express con-
sent of the union . But the Board and the courts have also
recognized that the parties may adopt an employment
practice that becomes so integrated into the bargaining
relationship as "wages , hours , and other terms and condi-
tions of employment" that even though they may not be
contractually bound to adhere to it, neither may one of
them simply choose to revise or omit it without at least
bargaining with the other party in good faith about the
proposed alteration in the practice . E.g., Radio Electric
Service Co., 278 NLRB 531 (1986) (unilateral discontinu-
ance of Christmas bonus); Gulf Refining & Marketing
Co., 238 NLRB 129, 132 (1978) (employee discount pro-
gram a mandatory subject of bargaining); Master Slack,
230 NLRB 1054, 1055 (1977) (change in employer's prior
practice of allowing employees to purchase and lay away
its goods through its outlet store adversely affected "a
benefit which accrued to employees out of their employ-
ment relationship").7
There can be little doubt that the existence of a pro-
gram more than a quarter-century old under which em-
ployees received the benefit of purchasing materials at a
substantial discount could constitute such a prevailing
term of employment,8 and that before Respondent could
modify the program , it might be compelled , by doctrine
whose validity is not in doubt , to give the Union an op-
portunity to discuss the proposed change , with an eye to
convincing the employer to leave it untouched or at least
to offering suggestions to make the change more palata-
ble. E.g., NLRB v. Katz, 369 U.S. 736 (1962); NLRB v.
Central Illinois Public Service Co., 324 F.2d 916 (7th Cir.
1963) (employer unlawfully unilaterally terminated extra-
contractual 33-1/3-percent gas discount given to union-
ized employees for 36 years, thus affecting fewer than
half of his employees by charging them $48 on average
more for gas).
Respondent does not take direct issue with any of the
foregoing . Its first argument on brief, "The Employee
Purchase Plan is not a Mandatory Subject for Bargaining
in the Circumstances of this Case ," is premised on the as-
sertion that "since at least 1962 the Company has re-
' In a bargaining agreement, the parties may explicitly agree that there
are no cognizable terms or conditions of employment not specifically
mentioned therein, or that the employer is not required to bargain about
any such matters . That is not the case here. The contract does contain a
"management functions" clause, but I find nothing in it remotely touch-
ing on the subject at hand, and Respondent makes no contention on brief
relying on the clause.
s Personnel Manager Browne testified that the employee "store" had
been in operation even before 1959, when he first arrived in Kansas City.
tained unfettered discretion with respect to the operation
of the employee purchase plan, including the items of-
fered for sale, the way in which sales are handled, and
the price of the items sold." Respondent concludes from
this, and the fact that the program was never "the sub-
ject of negotiation or of any request by the Union for
discussions," that the administration of the program was
intended to "be left to the discretion of the Company."
There are two answers to this contention. One is that
the record fails to show that the Union did not, in fact,
seek an opportunity to bargain about any changes in
these matters in the past, but merely shows that there
was no bargaining. The other is that the historical
changes were not the same as this one, and it is reasona-
ble to assume that a union's desire to negotiate will un-
derstandably be based on the particular facts of a case in
deciding whether to press for a chance to bargain; no
overall waiver can be inferred from such circumstances.
NLRB it Miller Brewing Co., 408 F.2d 12, 15 (9th Cir.
1969).9
The second contention made by Respondent is that the
Union waived its right to bargain about the change. For
many years, the Board has taken the position that if a
union receives timely notice of a proposed bargainable
change in a term of employment , and fails to request the
opportunity to bargain, the union has "waived" that
right (or "acquiesced in" the change). This is so no
matter how vociferously the Union objects to the
change, or even if it files an unfair labor practice charge;
it must also make clear to the employer its desire to bar-
gain about the proposed new condition. American Bus-
lines, 164 NLRB 1055 (1967); Kentron of Hawaii, 214
NLRB 834 (1974); Talbert Mfg., 264 NLRB 1051 (1982).
As Business Agent Messer conceded, that did not
happen here. Messer learned of the new program, to go
into effect on 12 August, on the morning of 6 August;
that would ordinarily be considered sufficient time for
bargaining to take place . But Messer did not ask to bar-
gain on 6 August or at any time before 15 August. What
he essentially did, as he acknowledged at the hearing,
was to tell the plant officials that the Union was opposed
to the change.
The difficulties with the application of the "request-
bargaining-or-waive-bargaining" principle in these cir-
cumstances, however, are several. It is as true in this
case as in hundreds of its ancestors that the right to bar-
gain about a change in a mandatory subject is a statutory
one, and that any asserted claim of waiver by a union
must be a "clear and unmistakable" one. Timken Roller
Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th Cit. 1963).
9 In its ending "Summary," Respondent's brief; for the first time,
brings up the issue of the magnitude of the change in issue , but does not
appear to rely on it in order to claim that the subject was not a mandato-
ry one ('"This very slight impact, which to some extent would be offset
by a new discount opportunity on certain additionally available products,
explains the relatively short period of discussion for this issue"). In any
event, the hypothetical example previously given suggests that the
August change must have involved a substantial amount of money for a
significant number of people. Cf. Radio Electric Service Co., supra (Christ-
mas bonus); Pbletti's Restaurant, 261 NLRB 313, 317 fn. 16 (1982) (elimi-
nation of free desserts), Kay Fries Inc., 265 NLRB 1077 (1982) (institu-
tion of it proof requirement for funeral leave).
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record here shows, however , that when Messer
began to protest the news imparted to him on 6 August
by Browne, he was cut short when the managers made it
instantaneously clear that they were powerless to ignore
the marching orders from Toledo . Hearing this, it would
be understandable that Messer would not make a plainly
bootless effort to "bargain" with those powerless to bar-
gain.
'it may be asked, however, if Messer wanted to bar-
gain, and those who were capable of bargaining could be
found in Toledo , why did Messer not contact Toledo.
As shown above, Messer apparently did have bargain-
ing on his mind , certainly by the time he wrote his 15
August letter to Hansen ("We would like to, meet with
the appropriate Corporate officials to discuss the future
of this issue before proceeding in any other direc-
tion"). 10 But a preliminary question arises whether
Hansen unlawfully frustrated the bargaining process by
asserting his impotency to bargain on 6 August.
It seems to me that if the Kansas City plant was itself
the "employer" with whom the Union had its collective-
bargaining relationship , its management had, as a matter
of law, the authority , to reject the new program as ap-
plied to the Fairfax plant , and management's position
"that there was really nothing that could be done"
would have been , an improper response to Messer's pro-
test and an. exculpation of his failure to specifically re-
quest bargaining. See Penntech Papers v. NLRB, 706 F.2d
18, 27 (1st Cir . 1983). The question is not as clear as one
might suppose it to be.
The agreement, as shown , is made between the Unions
and "the Owens-Corning Fiberglas Corporation, Wyan-
dotte County, Kansas." What that designation signifies is
not clear. I doubt that there is a corporation so named,
or a division of Owens-Corning ' so styled. The signature
block (unsigned in the copy in evidence) simply reads
"Owens-Corning Fiberglas Corporation." The fact that
the unit description in the contract contains no geo-
graphic or divisional limitation suggests that it must per-
tain only to that part of Owens-Corning that is located in
"Wyandotte County" (clearly, the parties did not intend
to cover "all production and maintenance employees and
all other employees of the Company" throughout the
Nation), and yet the record shows that there is a "North
Kansas City" facility, as well as several other Owens-
Corning operations in the area , which are not regarded
as being within the scope of the agreement.
In the end, however, I conclude that the contracting
"employer" is the corporation and not just the Fairfax
plant. Various provisions in, the agreement (e.g., art.
6(30)) sound like delegations of authority to the plant
manager, which would be unnecessary if the plant man-
ager exercised independent control over the administra-
tion of the contract; and there being, so far as the record
10 Browne testified that at every set of negotiations in the past repre-
sentatives from the "corporate and industrial relations department" in
Toledo would come to Kansas City to serve as "chief spokesmen or
spokesmen for negotiations ." Messer had been an alternate steward and a
steward in 1981 and 1984, but he was "really not privy to too much of
the discussions at that point ." Whether this means he was unaware-of the
presence of the Toledo employees is unclear.
shows, only one corporate entity, it would seem that it
would have to be the party-employer."
Other principles of law govern here and, I think,
excuse the Union's failure to pursue to Toledo an effort
to bargain about the new program . The 8(d) obligation
to confer in good faith has repeatedly been construed to
obligate both parties "to enter into discussion with an
open and fair mind , and a sincere purpose to find a. basis
of agreement," Globe Cotton Mills v. NLRB, 103 F.2d 91,
94 (5th Cir. 1939), and to "honestly attempt to reach an
accord," Steelworkers of America v. NLRB, 390 F.2d 846,
850 (D.C. Cir. 1967). The Supreme Court has termed the
"essential" ingredient of bargaining "the serious intent to
adjust differences and to reach an acceptable common
ground," NLRB v. Insurance Agents, 361 U.S. 477, 485
(1960). In Intersystems Design Corp., 278 NLRB ' 759
(1986), quoting Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017 (1982), the Board has recently reiterat-
ed that if the employer "has no intention of changing its
mind, then the notice is nothing more than informing the
union of a fait accompli."
An employer is obviously entitled to fully develop, a
proposal before presenting it to a union. Lemon Tree, 231
NLRB 1168, 1176 fn. 35 (1977); Lange Co., 222 NLRB
558, 563 (1976). That decision, however, may not, under
Section 8(aX5), be a "final one," J. P. Stevens & Co., 239
NLRB 738, 749 (1978} because the law requires "the se-
rious intent to adjust differences,", Insurance Agents,
supra, it' "enjoins an employer who has made such a de-
cision to retain sufficient flexibility of purpose as to be
receptive to union arguments and counterproposals
which may result in a rescission or modification of the
plan." Ibid. In the present case , it appears to me that Re-
spondent had gone so far in implementing this program
by 6 August that it was, to all intents and purposes, a fait
accompli.
Personnel Manager Browne testified that he first heard
that such a change was in contemplation when he attend-
ed a personnel managers conference in 1984 ; his failure
to make mention of it then to the Union cannot be fault-
ed on the assumption that the program was simply under
consideration at that time .' 2 But the record shows that
11 The named Respondent in the charge and the complaint is "Owens-
Corning Fiberglas Corporation," which is alleged as, and admitted to be,
"a corporation with an office and place of business in Kansas City,
Kansas "
12 Browne gave two seemingly conflicting explanations of the basic
reason for the change . At first, he testified (and Messer confirmed) that
he told the Union on 6 August that
where it emanated from basically was out of the sales and marketing
area in regard to complaints from customers, particularly retail cus-
tomers about our practices in the various plants of selling at a lower
puce and the entry into the marketplace of material at a price below
what the retailers were able to sell it for.
When asked on cross-examination about the "inforn ation" regarding the
change given to him at the managers conference , however, Browne re-
plied:
The only thing I can tell you that is what stuck in my mind as a
result of it was that our people had always had trouble getting tub
showers, for example. . . . And they were trying to open things up
so that employees could have access to the more popular items con-
taining glass fibers produced by Owens-Corning.
OWENS-CORNING FIBERGLAS 615
by 6 August the new program was so completely set in
place that modification or rescission of it as a result of
discussion with a union seemed totally divorced from re-
ality.
The printed letter dated 30 July 1985 (numbered "OC-
42-2-R2") sent to all Owens-Corning managers flatly
and unequivocally announced that "[a] new Employee
Purchase Program (EPP) for company products begins
August 12." It went on to declare that active and retired
employees "will be reimbursed" various amounts for
specified items and that requests for a certain item "must
be approved by the EPP Administrator in Toledo, OH,
prior to purchase."
The letter then summarized the procedure to be fol-
lowed in order for employees to participate in the pro-
gram, and assigned responsibility for local administration
of the program to eight named managerial categories.
Thereafter, it stated that reimbursement applications,
flyers, and a cover letter "will be" distributed to the re-
sponsible managers and supervisors during the week of S
August. The letter went on to discuss the publicity plans:
"Retirees will be informed of the program through an ar-
ticle in the August issue of Dialog. Articles about the
program will also appear in the August 9 issue of Tower
News and the August and September issues of plant and
division publications."
The printed three-copy reimbursement application
("OC-14444") is carefully designed to accommodate nec-
essary information. The reverse side of the employee's
copy describes in detail how the program works. Under
"General Information," the following statement appears:
"The program begins August 12 and rebates will not be
given for purchases made before this date."
Given the foregoing obviously well-deliberated prepa-
ration for the program to commence on 12 August, it is
impossible to conceive that a 6 August request by Messer
for bargaining could have slowed the momentum of the
program. Everything was locked in-prices, procedure,
and administration. Many copies of the application, per-
haps thousands, had unquestionably been printed by 6
August and were very probably already in the mail,
along with the flyers and cover letters, to the local ad-
ministrators. Surely, the article which "will . . . appear"
in the 9 August issue of Tower News had already been
printed, if not, indeed, circulated; and the same is prob-
ably true of the pertinent article in the August issue of
Dialog.
As counsel for the General Counsel points out on
brief, the bargaining obligation refers to the opportunity
for "meaningful bargaining." See First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 682 (1981) ("in a
meaningful manner and at a meaningful time"). In Firch
Baking Co. v. NLRB, 479 F.2d 732, 736 (2d Cir. 1973),
the court said that the employer has "[a] basic duty of
allowing adequate time and opportunity for reasonable
discussion of the essential details of its offer." But when
an employer has committed itself to a change in employ-
ment conditions as emphatically as this employer had by
6 August, it is safe to say that no amount of discussion
between then and 12 August could have altered its deci-
sion.
Even in NLRB v. Sherwin- Williams Co., 714 F.2d 1095,
1102 (11th Cir. 1983), where the court disagreed with the
Board (260 NLRB 1321 ( 1982)) that the changed condi-
tion was an accomplished fact, the court nevertheless
recognized that an employer's decision can be "so abso-
lute as to preclude any possibility of bargaining on the
issue of [the changed condition ]." In my view, it is a fair
judgment that Respondent had placed itself in precisely
that position . Indeed , Respondent seems to accept the
point when it states on brief, "Given that the program is
administered out of Toledo for all corporate employees,
it is unlikely that either the Union or local management
thought the chances good for a modification of the pro-
gram for Kansas City ." But the issue is that had Re-
spondent not locked itself into the program before it first
notified the Union , chances would have been infinitely
better for effective collective bargaining not only for
Kansas City but for the whole corporation.13
Finally, Respondent argues that the parties "did dis-
cuss the intended program change on August 6 in ad-
vance of implementation ." Although Messer testified that
there was a "lengthy discussion" of the matter that day,
he later credibly explained that it amounted to Hansen
giving a summary of the new plan , the Union's protest
that "we didn't like it," and management 's stated position
that "it was sent to them from above, meaning Toledo,
and that there was really nothing that could be done."
Respondent also notes in the "Summary" section of its
brief that the change was implemented for "reasons unre-
lated to the bargaining unit and unrelated to issues that
could be addressed by bargaining in the unit (i.e., the
change was made due to the complaints of retailers who
were buying and selling the Company's products)." It
should be pointed out that this parenthetical explanation
was given by Browne, who was unspecific about the
source of such an explanation at the personnel managers
meeting the year before; furthermore , as set out supra,
on cross-examination Browne testified that the "only
thing" that "stuck in [his] mind" as an explanation of the
change was that the Company was "trying to open
things up" so that employees could have access to the
more popular items produced by Respondent.
In either event, there appears to be much that was bar-
gainable : the prices, the time and amount limitations for
purchases, and what Messer called in his 15 August letter
the "cumbersome reimbursement procedure " entailed in
obtaining a rebate-all were susceptible to modification.
In accordance with the foregoing , I conclude that Re-
spondent violated Section 8(a)(5) in these circumstances.
Normally, as Respondent points out , 6 days may be con-
sidered an adequate opportunity for a union to ask for
13 As indicated above, in Messer's 15 August letter to Hansen, he
asked lo "meet with the appropriate Corporate officials to discuss the
future of this issue before proceeding in any other direction." Hansen's
reply, dated 11 days later , ignored Messer's request to meet with Han-
sen'a appropriate superiors , saying supply, "We are currently trying to
gain exemption for the new policy and return to plant sales of insula-
tion." The record is silent as to what effort Hansen made toward that
end. It seems quite improbable that Respondent would have agreed to
exempt from the newly instituted program a bargaining unit which con-
stituted perhaps 4 percent of its entire work force throughout the coun-
try
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining and present its arguments . A review of the
cases shows that they generally involve issues in which
rescission or modification of the proposed change is a
reasonable and rather easily accomplished alternative.
See, e.g., Medicenter Mid-South Hospital, 221 NLRB 670
(1975); Holiday Inn Central, 181 NLRB 997 (1970). This,
however, is one of those cases in which the evidence
convinces that Respondent had traveled so far down the
road to consummation of its elaborate plan before it gave
notification to the Union that bargaining would have
been a wholly empty gesture.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. By, about 12 August 1985, instituting modifications
in its employee purchase plan at its Fairfax plant in
Kansas City, Kansas, without affording the Charging
Party an appropriate opportunity to bargain , Respondent
violated Section 8 (a)(5) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The first appropriate remedy for Respondent's failure
to bargain appropriately about the change in the employ-
ee purchase program is to require reinstitution of the
former program at the Fairfax plant for the benefit of the
employees represented by Local Union No. 1. Common-
ly, this remedy envisions allowing Respondent to there-
after reinstate the new program if, after bargaining in
good faith, it has not been otherwise persuaded by the
Union. E.g., Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 215-216 (1964).
On the facts of this case, however, I believe that such
an order requires some supplementation, unless the bar-
gaining so ordered simply amount to no more than a
charade. Accordingly, I recommend that Respondent be
required to reinstitute its former program for the benefit
of its employees represented by Local Union No. 1 for a
period of 6 months, after which, if Respondent wishes, it
may bargain with the Union about the application of the
new program to such employees. If good-faith bargain-
ing does not convince Respondent to continue the old
program for such employees, it may then make the new
one applicable to those employees.
In addition, Respondent should be required to reim-
burse all employees represented by Local Union No. 1
for any monetary losses they suffered since 12 August
1985 as a result of being required to purchase insulation
under the new program instead of the old one, with in-
terest as set forth in Florida Steel Corp., 231 NLRB 651
(1977).
Finally, f recommend entry of the customary cease-
and-desist order and posting of the traditional notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Owens-Corning Fiberglas Corpora-
tion, Toledo, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Insulation
Production Workers Local Union No. 1 (the Union) as
the exclusive representative of its employees in the ap-
propriate bargaining unit about substantial changes in the
employee purchase program at the Fairfax plant in
Kansas City, Kansas.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) 'Reinstate for a period of 6 months for the benefit
of its employees represented by the Union the employee
purchase program in existence until 12 August 1985, and
make whole the union-represented employees for any
losses suffered by them, in the manner set forth in the
section above entitled "The Remedy."
(b) If Respondent desires thereafter to apply the post-
12 August employee purchase program to the union-rep-
resented employees, bargain in good faith with the Union
as the exclusive bargaining representative of Respond-
ent's employees in the appropriate unit.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Fairfax plant in Kansas City, Kansas,
copies of the attached notice marked "Appendix."15
Copies of the notice, on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
14 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses .
is If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."