Van Dorn Co.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1233 (N.L.R.B. 1987)

VAN DORN MACHINERY CO. 1233
Van Dorn Plastic Machinery Co., Division of Van
Dorn Company and District Lodge 54 of the
International Association of Machinists and
Aerospace Workers, AFL--CIO. Case 8-CA-
11669
30 November 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 14 December 1982 the National Labor Rela-
tions Board, by a three-member panel, issued a De-
cision and Order in this proceeding,' finding, inter
alia, that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to meet and bargain
with the Union over a decision to change its policy
concerning paid lunch periods. On a petition for
review and cross-application for enforcement of
the Board's Order, the court of appeals issued a de-
cision enforcing the Board's Order in part, denying
enforcement in part, and in part vacating and re-
manding for further proceedings.2
The court remanded to the Board the issue of
the Respondent's unilateral change of its paid lunch
period policy. The General Counsel and the Re-
spondent had entered into a stipulation, which
stated in part that the Respondent's change in its
paid lunch period policy "was instituted by the Re-
spondent due to business necessity." In its decision,
the Board had rejected the argument that the stipu-
lation brought the Respondent's unilateral change
within an exception that permits unilateral changes
based on "compelling economic considerations."3
On appeal, the court found that it was not clear
from the record what the parties intended when
they entered into the stipulation, and it concluded
that a remand was necessary to determine the cor-
rect interpretation of the stipulation. The court
stated further (736 F.2d at 349):
If the stipulation is found to be ambiguous the
Board must consider extrinsic evidence of the
intention of the parties in entering into it. If
the Board finds from such evidence that no
agreement was actually reached and that the
stipulation is a nullity, then fairness requires
that Van Dorn be given an opportunity to es-
tablish "compelling economic considerations."
The court's order also required the Board, in
considering whether "compelling economic consid-
' 265 NLRB 864
2 Van Dorn Plastic Machinery Co. v NLRB, 736 F 2d 343 (6th Cir
1984).
s See Mike O'Connor Chevrolet-Buick-GMC Co, 209 NLRB 701 (1974),
enf denied on other grounds 512 F. 2d 684 (8th Cir 1975)
erations" were established, to categorize the Re-
spondent's lunch period action under NLRB v.
First National Maintenance Corp., 452 U.S. 666
(1981), as either a decision that was "almost exclu-
sively `an aspect of the relationship' between em-
ployer and employee" and must be bargained, or a
decision that had only an "indirect and attenuated
impact on the relationship" or was made to pre-
serve the business and involved a fundamental
change in scope or direction and need not be bar-
gained (736 F.2d at 349). On 8 April 1985 the
Board requested the parties to file statements of po-
sition. The Respondent, the General Counsel, and
District Lodge 54 of the International Association
of Machinists and Aerospace Workers, AFL-CIO
(the Union), each filed a statement of position. The
Respondent also filed a Motion for Summary Judg-
ment and brief in support, to which the General
Counsel filed a response and the Union filed a brief
in opposition. The Respondent filed a reply brief.
On 2 January 1987 the Board issued its Order
(not included in bound volumes) reopening the
record and remanding the proceeding to the ad-
ministrative law judge. Having considered the
court's decision as the law of the case, the Board
reviewed the record and the parties' submissions
and concluded that the stipulation was ambiguous,
the extrinsic evidence established that in formulat-
ing the stipulation there was no meeting of the
minds between the counsel for the General Counsel
and the Respondent's attorney, no agreement was
actually reached, and the stipulation was therefore
a nullity to the extent it recited that the Respond-
ent's lunch period change was due to "business ne-
cessity." Accordingly, the Board remanded the
proceeding to the administrative law judge for the
purposes of giving the Respondent an opportunity
to establish "compelling economic considerations"
for its lunch period change and to categorize the
lunch period action under First National Mainte-
nance, as instructed by the court.
A hearing was then held before Administrative
Law Judge Robert G. Romano on 10 February
1987, and on 23 July 1987 the judge issued the at-
tached second supplemental decision in this pro-
ceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the Union filed an
answering brief.
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
286 NLRB No. 117
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decided to affirm the judge's rulings, findings,4 and
conclusions5 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Van Dorn
Plastic Machinery Co., Strongsville, Ohio, its offi-
cers, agents, successors , and assigns , shall take the
action set forth in the Order.
4 In the circumstances of this case , we agree with the judge that the
number of employees affected by the Respondent's lunch period change
does not constitute a defense to the allegation that the Respondent's con-
duct violated Sec 8(aX5) and (1) of the Act.
6 Members Babson and Stephens find that under any of the views ex-
pressed in Otis Elevator Co., 269 NLRB 891 (1984), the Respondent's
lunch period change constitutes a mandatory subject of bargaining
Richard Mack, Esq., for the General Counsel.
Keith A. Ashmus, Esq. and Gregory A. Jacobs, Esq.
(Thompson, Hine and Flory), of Cleveland, Ohio, for
the Respondent.
David Roloff, Esq. (Gaines and Sterns Co. L.P.A.), of
Cleveland, Ohio, for the Charging Party.
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT G. RoMANO, Administrative Law Judge. I
heard this second supplemental proceeding on 10 Febru-
ary 1987, pursuant to a Board Order reopening and re-
manding proceeding, dated 2 January 1987. The Board
remand is made pursuant to decision of the Sixth Circuit
Court of Appeals in 736 F.2d 343 (1984). There the court
enforced in part, denied enforcement in part, and in part
vacated and remanded for further proceedings prior
Board Decision and Order in a related consolidated pro-
ceeding found at 265 NLRB 864 (1982). The central
issue on remand is whether Respondent violated Section
8(a)(5) and (1) in making conceded and found unilateral
change in its paid lunch policy on 7 October 1977 while
the Employer's objections to election were pending. Em-
ployer's objections were subsequently overruled, and the
Union has been certified as collective-bargaining repre-
sentative.
At the original hearing the General Counsel and Re-
spondent had entered a stipulation that stated in part that
the Respondent's change in its paid lunch period policy
"was instituted by the Respondent due to business neces-
sity." The Board initially decided that this stipulation did
not satisfy, or bring Respondent's otherwise unlawful
unilateral change within the "compelling economic con-
siderations" exception of Mike O'Connor Chevrolet-Buick-
GMC Co., 209 NLRB 701 (1974), enf. denied on other
grounds 512 F.2d 684 (8th Cir. 1975). On appeal, while
observing that a stipulation once entered into should be
construed to give it legal effect (case cite omitted), the
court found that it was not clear from the record what
the parties intended when they entered into the stipula-
tion; and it concluded that a remand was necessary to
determine the correct interpretation of the stipulation.
The court in that regard stated (736 F.2d at 349):
If the stipulation is found to be ambiguous the
Board must consider extrinsic evidence of the inten-
tion of the parties in entering into it. If the Board
finds from such evidence that no agreement was ac-
tually reached and that the stipulation is a nullity,
then fairness requires Van Dorn be given an oppor-
tunity to establish "compelling economic consider-
ations." In considering this question the Board
would be required to categorize the lunch period
action within the holding of First National Mainte-
nance Corp., 452 U.S. 666 . . . (a decision which is
"almost exclusively 'an aspect of the relationship'
between employer and employee" must be bar-
gained but a decision which only has an "indirect
and attenuated impact on the relationship" or is
made to preserve the business and involves a funda-
mental change in scope or direction need not be
bargained.) Regardless of the outcome of the
remand, we affirm the Board's holding that Van
Dorn is required to bargain with respect to the ef-
fects of the lunch period decision. Id. at 677-78 n.
15 . . . ; see NLRB v. Gray-Grimes Tool Co., 557
F.2d 1233 (6th Cir.), cert. denied, 435 U.S. 907.. .
(1978).
The Board has accepted the court's decision as the law
of the case. On subsequent Board request, each of the
parties, inter alia, filed statements of position. Prior trial
counsel for the General Counsel and Respondent, in-
volved in making the stipulation, filed affidavits in regard
to the stipulation they entered. On review of the submis-
sion the Board determined first that the stipulation is am-
biguous, particularly in view of the court's conclusion
that it is not clear from the record what the Respondent
and the General Counsel intended when they entered
into the stipulation; and, because the stipulation arguably
may be read to support both the General Counsel's and
the Respondent's interpretations of it. The Board next
considered the parties' submitted extrinsic evidence bear-
ing on the intention of the Respondent and the General
Counsel in entering the stipulation. The Board thereupon
concluded, secondly, that in formulating the stipulation
there was no meeting of the minds between counsel; that
no agreement was actually reached; and that, therefore,
stipulation is a nullity to the extent that it recites that the
change was due to "business necessity."
Board remand thus came to me for the purpose of
(otherwise) taking the additional evidence required by
the court's opinion. In that respect the Board had earlier
specified that the remand, pursuant to the court's order,
is to give Respondent an opportunity to establish "com-
pelling economic circumstances" for its lunch period
change; and with further direction that the administrative
law judge is to categorize the Employer's lunch period
action under NLRB v. First National Maintenance Corp.,
452 U.S. 666 (1981), as instructed by the court. Board
remand also ordered, on conclusion of hearing, prepara-
tion and service of a supplemental decision containing
VAN DORN MACHINERY CO.
findings of fact, conclusions of law, and recommenda-
tions with respect to the issues on remand.
The Procedural Question
At the remand hearing Respondent initially sought to
offer certain testimonial evidence of its (involved) trial
counsel on aspects of the extrinsic evidence bearing on
the intent of the parties in entering the stipulations that
were (asserted) as not covered in his prior affidavit sub-
mitted to the Board. The evidence sought to be offered
on intent of the parties in entering the stipulation clearly
related to an issue previously addressed and already de-
termined by the Board. Objection of the other party was
promptly placed to this line of inquiry. Respondent did
not contend that the Board's remand order had remand-
ed the issues of stipulation ambiguity and party intention
in entering the stipulation, but urged (generally) the
court did. In sustaining the objection, I ruled that the
Board had already determined the stipulation issue(s); the
stipulation issue(s) had not been remanded to me; and if
the Respondent felt aggrieved by the Board's determina-
tion thereon, and/or scope of the remand order, Re-
spondent should have advanced its contention(s) to the
Board, and sought a reconsideration of the issue(s) by the
Board, and/or seek any necessary clarification from the
court, and not in effect seek to obtain procedural relief
from me on that which was beyond the Board's remand
order to me. No claim was raised by Respondent that it
was (only) seeking to elicit newly discovered or previ-
ously unavailable evidence.
Respondent then requested, and was permitted to
present, an offer of its intended proof in question and
answer form. On pressed objection of the General Coun-
sel that the proffer clearly addressed a matter that the
Board had already determined, specifically, the Board's
(fundamental) conclusion that the stipulation is a nullity,
the General Counsel urged that such proffered evidence
(bearing on contention of counsel in entering the stipula-
tion) had no purpose or place in the hearing; and it is not
an issue the Board had remanded. Respondent's offer of
proof was also thereupon rejected. Although I further
ordered the hearing to proceed, an adequate opportunity
was otherwise provided to Respondent to take an interim
appeal of the administrative law judge' s ruling(s), if it de-
sired, within a provided (agreed) reasonable period.
Respondent has subsequently filed with me a position
letter (copy served on other parties), which is made part
of the record (ALJ Exh. 3). Therein Respondent advised
that it would not seek an interlocutory appeal of the
above rulings; and that, "Respondent, however, reserves
its right to file an exception with the Board should such
action become necessary." In subsequent brief, Respond-
ent has more explicitly stated, "By failing to direct the
ALJ to take extrinsic evidence one the stipulation of the
parties, the Board disregarded one of the steps mandated
by the Court."
Having considered all the above circumstances and
premises , I reaffirm the prior rulings. To extent Respond-
ent has sought at hearing to place (general) reliance on
the court's remand and, in brief, has made more explicit
contention thereon, I need not reach the substance of the
1235
same, as they continue to seek to raise matter(s) wholly,
beyond the Board's remand to me.
On the entire record and my observation of the de-
meanor of the witnesses, and after careful consideration
of the briefs of the General Counsel and the Charging
Party timely filed about 10 April 1987, the brief of Re-
spondent filed about 5 May 1987, and the reply brief of
the Charging Party filed on 15 May 1987, I make the fol-
lowing additional
FINDINGS OF FACT
The facts are essentially not in dispute. They are only
in some measure complicated.
I. THE WRITTEN POLICIES
A. Prior Written Policy
Respondent 's pertinent policy and procedure No. 2010
on "Hours Worked," issued and was effective "4-19-76."
It provides:
I. GENERAL
The regular work day will be eight (8) hours. The
regular work week will be forty (40) hours, and
will be worked during the period beginning with
the start of the night shift on Sunday and conclud-
ing with the end of the afternoon shift on Friday. A
thirty (30) minute lunch period is scheduled within
each shift, for which employees are not paid. In
cases where continuous operations are required on a
three shift basis, those employees will have a fifteen
(15) minute paid lunch. The number of employees
who are to receive the paid lunch will be deter-
mined by the shift with the least number of employ-
ees working in that classification.
II. OVERTIME
A. Time and one-half (1-1/2) will be paid to an em-
ployee for
1. All hours worked in excess of eight hours but
less than twelve hours per day in a twenty-four (24)
hours (the twenty-four hour (24) period beginning
with the start of the employee's regular shift).
2. All hours worked in excess of forty (40) hours
in one work week.
3. All hours on Saturday.
B. Double (2) time will be paid to an employee for
1. All hours worked in excess of eight (8) hours
on Saturday.
2. All hours worked on Sunday.
B. Written Policy Change
On 7 October 1977 Respondent notified all of its em-
ployees of the following change:
In order to create a more productive and effi-
cient operation a modification is being made to the
policy on paid lunches; namely, 15 minute paid
lunches will be taken by those individuals who are
on a machine that requires only one operator per
shift and the machine is being used on a three shift
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
continuous operation . All other employees will be a
half hour lunch.
If there are any questions , please contact your su-
pervisor.
Respondent does not dispute there was a change in
paid lunch periods of certain unit employees effected
thereby . Moreover , at hearing , Respondent conceded
that the General Counsel had already made out a prima
facie case of 8(a)(5) and ( 1) violation . The Board has al-
ready found and the court enforced Respondent 's obliga-
tion to bargain with the Union over the effects of this
unilateral change in paid lunch policy . Respondent essen-
tially defends presently on the limited issue of the lawful-
ness of its unilateral decision ; and its asserts it was not
obligated to bargain over this decision . Respondent's de-
fense essentially rests on the testimony of its former man-
ager in the material time , Robert Neiner Jr., who alone
otherwise testified in this supplemental proceeding, and
whom I find to have been a generally credible witness.
C. Election and Certification ; the Issues Presented
The underlying election was conducted on 22 April
1977. On 17 January 1978 the Board initially certified the
Union as the exclusive collective -bargaining representa-
tive of a production and maintenance unit heretofore de-
termined appropriate . The Board subsequently vacated
this certification ; but again certified the Union on 14 De-
cember 1982 . The above 7 October 1977 change was
clearly effected unilaterally by the Employer approxi-
mately 6 months after the election in which the Union
had received a collective-bargaining agent designation
from a majority of the unit employees voting in the elec-
tion, but while the Employer 's (exceptions on) objections
to election were pending , and before the Board's final
certification of the Union as exclusive collective -bargain-
ing representative . Nonetheless , Respondent 's unilateral
action fall within a period the Board has determined an
employer acts unilaterally at its peril if the Union is sub-
sequently certified , as here , unless it can establish that its
unilateral action falls within the saving exception of
being based on "compelling economic considerations" as
declared in the Mike O 'Connor case , supra; or, the deci-
sion is otherwise shown to have constituted a nonmanda-
tory bargaining subject as now explicated in First Nation-
al Maintenance , supra, directed for application by the
court , and accepted by the Board.
D. Change in Management,- Rapid Growth at
Strongsville Plant
Van Dorn employed Neiner at Employer 's Strongs-
ville, Ohio plant from November 1976 to November
1980 . Willa Machines and Tool Company (Willa Ma-
chines) currently employs Neiner at its plant located in
Florida . Willa Machines is not affiliated with Van Dorn
in any way . Van Dorn previously employed Neiner as
manager of manufacturing. Neiner was responsible for
the operation of the Employer's Strongsville facility,
which , together with a Van Dorn Cleveland , Ohio plant,
constitute a single profit-making division of Van Dorn.
Although Neiner has acknowledged that the Strongsville
plant showed some profit both before and after the mate-
nal paid lunch policy change , Neiner has also testified
that the Strongsville plant had certain long-term profit
difficulties , including (undefined) periods of showing
negative profit.
Neiner testified that at the time he started the Employ-
er was also experiencing some difficulties associated with
a rapid growth at the Strongsville plant. He relates that
for a few years the Company had been struggling hard
with a profitability problem , exacerbated by fierce for-
eign competition . Neiner explained generally that at a
time of growth , profitability is difficult , because money is
going out before it is coming in. Neiner 's understanding
was that before he came , the manufacturing staff was not
fully capable of handling the difficulties . Neiner's as-
signed tasks were to eliminate any inefficiency , lack of
productivity , and wasted resources and to increase pro-
ductivity and efficiency at the Strongsville plant, in
order to make the Strongsville operation contribute to
Van Dorn's profits . Neiner testified that he made signifi-
cant changes in virtually all areas, viz, in management,
personnel , and not only manufacturing , but in product
design . This case addresses (only) his change in one area,
the Employer 's paid lunch policy.
In general , Neiner was responsible for the Strongsville
plant 's machine and assembly operations , and for all sup-
port services . His responsibility extended over manufac-
turing, engineering , quality control , maintenance , and, at
times, production control . It was Neiner who decided
that a change should be made in Van Dorn 's established
paid lunch policy, though the effected change had to
also have the approval of Respondent 's director of em-
ployee relations , David C . Bragg . Only Neiner has testi-
fied in this supplemental proceeding.
E. Nature ofStrongsville Plant
1. Special equipment and schedules
According to Neiner the Strongsville plant was initial-
ly built to accommodate certain neutrally controlled
(NC) major machining centers . These NC , or primary
machines, have a long operating time once set up. E.g.,
they may run 2-3 hours making a given part. Van Dorn
pruchased its above primary machines in the early seven-
ties , at a cost of $200,000-$300,000 , apiece . NC machines
require around -the-clock operation to pay off, or to
effect a payback . Although two 12-hour shifts were a
possibility , Nemer relates that logic dictated , and in any
event Van Dorn elected that its primary machines would
be staffed on a three 8-hour-shift basis , as it is most effi-
cient to run the NC machines that way. Van Dorn estab-
lished an NC first shift of 7 a.m. to 3 p .m., a second NC
shift of 3 p.m. to 11 p.m., and a third NC shift l l p.m. to
7 a.m.
Neiner has testified relatedly that it is common for
companies who have large machines and who want to
keep them running on a 24-hour basis , to pay employees
involved in the continuous operation (e.g., operator) for
8 hours, and give (the operator) a 15-minute paid lunch
period . Effectively the operator works for 7 hours and
45 minutes but receives pay for a full 8-hour shift. Essen-
tially the NC operator must clear out when the next shift
VAN DORN MACHINERY CO
NC operator arrives . Van Dorn "s machine operators,
who work machines on a three-shift basis , both before
and after the 7 October 1977 policy change in paid
lunch , worked the above 8-hour shifts ; and they similarly
received , and currently receive a 15-minute paid lunch
period . The change did not affect them.
In Neiner 's experience , however , it was not common
for a company to pay a paid lunch period to employees
whose services are not needed on a continuous operation
basis . When Neiner arrived at the Strongsville plant he
found Van Dorn 's paid lunch system did so; and that it
was also complicated in operation . It may be observed
that Neiner arrived in November 1976, but did not seek
to effect a change in Employer 's above paid lunch period
until 7 October 1977 , thus almost a year later.
At the time of his arrival in late 1976 , Neiner thus
found the primary machine operators were not the only
employees receiving 15-minute paid lunch periods.
Neiner relates that all the machine shop personnel were
capable of receiving the paid lunch period, though as a
practical matter there was a more limited number who
did. Neiner estimated the number affected by the change
to be about 30-40 , or 10 percent of the overall unit. As
the number of employees in the appropriate production
and maintenance unit numbered approximately 350, the
10 percent , or 35 , is congruous with the number of 35
previously approximated.
2. Affected departments and classifications
Van Dorn employs machine shop, inspection , and tool
department employees in other material classifications of
deburring (or debur file), inspection, material handler,
tool crib attendant, and tool grinder . An inspector
checks the production as they come from the machine, in
order to ensure that the products are meeting standards.
Inspectors also work with operators (and foremen) to
solve problems that develop with the machine in oper-
ation . Material handlers drive tow motors and haul mate-
rial around the plant . They also clean various plant areas.
Tool crib attendants distribute tools as needed; and a tool
grinder (one per shift) uses a small machine to grind
tools to make sure that they are in top condition for use.
Although Neiner , at least on one occasion , has testified
that it makes some sense to pay a paid lunch to an in-
spector to be on the same schedule as a machine opera-
tor with whom the inspector has occasion to work close-
ly, Neiner has also testified that he never knew why Van
Dom paid a paid lunch to the others-it never made
sense to him . E.g., Neiner has related that Burr file
workers were not continuous machine dependent;
spacewise they did not have to clear out for an oncom-
ing shift ; and there was no need for them to have been
given a paid lunch period . Neiner also saw the paid
lunch period system as a drag on productivity because
Van Dorn was giving away a lot of hours, discussed fur-
ther, infra.
1237
F. Complications and Difficulties
1. Complications in schedules and shifts
a. Number keyed to least -manned shift
Neiner explains that the paid lunch system as operated
at Van Dorn prior to change was keyed to least -manned
shift (essentially) irrespective of continuous operator re-
lationship or machine need . Thus , he explained , if there
were 12 employees working in deburring on the first
shift , 10 on the second shift , and 5 on the third shift,
under the prior paid lunch policy , the Employer would
pay 5 (deburring) employees on each shift a 15 -minute
paid lunch period . These employees would then work an
8-hour shift , performing 7 hours and 45 minutes of actual
work and receiving a 15-minute paid lunch period, for a
total of 8 -paid hours. However , the other 12 deburrers (7
on the first shift and 5 on the second shift) did not re-
ceive the paid lunch period . Instead they worked an 8-
1/2 hour shift (e.g., from 7 a .m. to 3 : 30 p.m ., or, from 3
p.m. to 11:30 p . m., respectively), as did most other unit
employees. They received a one-half-hour unpaid lunch,
and were paid for the (full) 8 hours they worked. In
effect shifts within machine shop , inspection , and tool de-
partments regularly overlapped.
b. Foreman continues designations
The Employer employed nine foremen (two of whom
were actually general foremen ) in material departments.
Each foreman was assigned to an area and supervised ap-
proximately 25 employees. Each week each area foremen
would determine for each area what that particular fore-
man's staffing would be on the least-staffed (usually
third) shift . The foremen then had to determine how
many and who on his shift in each classification were
going to be on paid or unpaid lunch schedule. Whoever
was senior (in classification) was entitled to first choice.
c. Different machine shifts,- related effects
A schedule preparation and report to accounting oc-
curred each week because cf the regular changes occur-
ring from week to week. Neiner explained that because
of the growth, they were in a state of flux . There were a
lot of people regularly changing shifts, leaving , and ar-
riving new. However there were also regular changes in
staffing during the week , due to absenteeism , or new as-
signment (as result of job bid or new hire) or, for what-
ever reason . If a nonoperator employee were absent, e.g.,
deburring employee , Employer would normally just reas-
sign the work to another similarly classified worker. If
an operator was absent it could cause additional prob-
lems, though Employer would transfer an unpaid lunch
period operator , if it could . A long-term absence of a
paid lunch operator brought seniority bid into play.
If a machine, due to production requirements , or oth-
erwise , is to be operated on but two shifts, 8-hour shifts
are then less efficient . Thus the staff of those machines
(including operators) also worked a scheduled 8-1/2-hour
shift , composed of 8 full hours work and with 1/2 hour
unpaid lunch hour . Thus it is clear of record that staff of
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
side-by-side machines might or might not be on paid
lunch basis.
d. Open machines, additions to base shift
On one of the three NC shift operations, e.g., on a
third shift, a machine might also be open, i.e., a foreman
be looking for someone for the machine, but not have an
operator. A machine staff thus might not be on a paid
lunch for a temporary reason. If (such) a third shift on a
machine was open, but was filled midweek, that mandat-
ed a paid lunch period for those employees working on
the machines (apparently) for the remainder of that
week. However, if a machine was scheduled and staffed
on a three-shift basis for the week, and on a Tuesday or
Wednesday an opening developed on a shift, according
to Neiner, it was the Employer's practice to continue to
pay the paid lunch period to the other (scheduled) em-
ployees on that machine shift for that week. Finally, if
production needs required an employee addition on the
least-manned shift, that circumstances in turn (apparently
from that point) effected the number to be qualified to
receive a paid lunch period on the other shifts.
e. Foremen, accounting, and overtime problems
Changes of all types were difficult for the foremen to
keep up with . In the administration of the system/-
situations , foremen but particularly accounting personnel
were confused ; and accounting personnel were especially
confused in regard to overtime.
Accounting had the basic problems of determining
from schedules and timecards who was on paid lunch-
time and who not. However , Neiner related that ac-
counting had a nightmare trying to figure out the re-
quired changes that were made midweek . Accounting
had an added problem if a paid lunch employee was held
over and worked overtime because if an employee did
not leave the plant at lunchtime , the employee was not
required to punch out at lunch . An employee with
unpaid lunch period, and who did not leave the plant,
was indistinguishable on basis of review of timecard
punches (8-1/2 hour span) from an employee on paid
lunch period who was held over for one -half hour of
overtime (thus also showing 8-1/2-hour span between
timecard punches). Each foremen spent a lot of time
with accounting ensuring that the proper people got paid
the proper amount of money.
Neiner testified initially that each foreman spent at
least 2-3 hours of each week in the preparation of the
paid lunch schedules . On the other occasions, Neiner es-
timated that foremen spent 4-6 hours on the schedules
and changes , exclusive of time the foremen spent answer-
ing accounting questions . Neiner was unable to estimate
how much of the foremen 's time was taken up with ac-
counting questions . Neiner did testify , however, that he
viewed the foremen's lost time (thus in regard to admin-
istering the system of preparation of schedules , handling
changes , and dealing with accounting on related pay
matters including overtime) as a terrible loss of produc-
tivity.
2. Difficulties with inspectors
The nature of the work performed by the primary ma-
chines was relatively complex, materially requiring a fair
amount of inspection services. Depending on the staffing,
inspection employees received a paid lunch. Neiner as-
serts the principal problem here was the few inspectors
involved. If there were seven inspectors on the first shift,
six on the second shift, and four on the third shift, four
on each shift received a paid lunch period. However, of
the four on third shift, two may be on the line, and two
in file inspection, where Neiner asserts it made no differ-
ence to machine operation. Although Neiner could not
recall how an inspection employee was assigned to an
area (i.e., whether directed or by choice/seniority exer-
cise), either way, an inspection employee worked with
some 8-hour and some 8-1/2-hour shift employees. There
were associated problems.
In the event of a product problem with the machine,
an inspector worked closely with the operator in finding
the source of the problem and solving it. Problems might
occur on a three-shift (8-hour) machine, or a two-shift
(8-1/2-hour) machine. If the particular inspector in the
area is himself on a three-shift or 8-hour work basis (e.g.,
7 a.m. to 3 p.m.), at shift end, the inspector left at 3 p.m.
In that instance, the (two-shift) operator, who may be
close to finding the problem, would then have to explain
the problem, and where they were in solving it, to the
new inspector arriving at 3 p.m. With a two-shift pri-
mary machine operator himself leaving at 3:30 p.m., the
operator taking over (at 3:30 p.m.) would then have to
have the problem explained to him in turn. According to
Neiner, inspectors on paid lunch 8-hour shifts gave him
the most problems in solving a problem with two-shift
machine operators.
3. The problem of 15-minute paid lunch policy
enforcement
Neiner relates that most workers stayed near their ma-
chines during their lunch period in case something went
wrong. A paid lunch worker however is not working
while on lunch. He normally washes up and eats. An em-
ployee receiving the 15-minute paid lunch could eat near
the machines; or he could clean up and go to the Em-
ployer's lunchroom. He could not leave the plant, as em-
ployees on unpaid one-half-hour lunch period could, but
also might not do. No employee was allowed to wander
the plant. Van Dorn does not have employee breaks.
Neiner asserted that the difficulties with enforcing the
hours was one of the things that prompted him initially
to consider the paid lunch period situation. There were a
lot of people in the eating area; and it seemed to him that
at times there were no people at the CN machines. In his
opinion there was an abuse of the 15-minute paid lunch
period.
Neiner explained that a foreman always had some
people working, and their attJntion was required some
place or another. A given foreman could tell Neiner if a
certain employee was or was not on paid lunch period
that day; and the foreman could also tell if a supervised
employee was at the lunchroom or not. However,
Neiner could not keep tract of who belonged in the
VAN DORN MACHINERY CO. 1239
lunchroom. Neiner readily acknowledged that he never
made an issue of that with the foreman. Neiner explained
that he was not about to because a foreman's involve-
ment in that would cost a lot more than an employee
who took more than a 15-minute lunch period. The fore-
man's technical expertise was more required on the floor
to improve efficiency of the machine, and to make it a
profitable operation.
G. Other Difficulties
1. Shop clutter and OSHA citations
The Strongsville plant was a busy operation and gen-
erated considerable clutter. The Employer had difficulty
in maintaining shop cleanliness . There was continual
clutter in the aisles and the material handlers were not
able to keep up with it. Eventually, the clutter blocked
aisles and fire extinguisher access. On investigation,
OSHA cited the Employer on approximately 12 items.
The bulk of the citations were for blocked aisles , blocked
fire extinguishers, or general disorderliness. There were
two or three items outside the congested areas. With the
paid lunch change effected, the Employer had no diffi-
culty in correcting the problems within OSHA-allowed
time periods.
2. Related consideration
Neiner observed relatedly that if he changed the 15-
minute lunch period of the employees not directly in-
volved in the continuous machine operation he could
then use their services to help clean up the clutter. By
doing so, that is changing these employees to an 8-1/2-
hour day, he would pick up not only 15 minutes of
actual worktime from each such employee, but even
more significantly he would obtain a half-hour overlap
(e.g., in first and second shifts). Thus he could take 6-10
of those people and assign them to clean up the cluttered
areas for a half hour period, and have a real impact. As a
result of the change in the paid lunch period policy that
he eventually made, Neiner was able to do so.
H. Neiner's Decision Considerations
Neiner considered the impact of changing the paid
lunch period system to provide a paid lunch (only) to
people on the three-shift-operated machines, but not to
people working indirectly (to the continuous machine
operation). Neiner estimated there were 10--20 lost hours
of productivity a day, a significant amount of lost pro-
ductivity. (Neiner considered therein not only the 15
minutes of production pickup, but one-half-hour overlap
result.) Neiner hoped to utilize the lost hours; to accom-
plish more work for the same (paid) time; and to address
the health and safety hazzards, OSHA problems. Neiner
has testified that when you are struggling to stay alive,
you cannot afford those (lost) hours.
Neiner also testified that he (lid not consider the
change would be a major problem. Neiner asserts the
employees affected were not going to be expected to
work any longer, produce any moire, and they were not
going to lose any pay. The only negative was that they
would leave work a half hour later; and a positive effect
was that they would have a half-hour lunch period, and
could leave the plant if they desired. According to
Neiner, he was aware that some would feel a little upset,
but he did not expect a big difficulty. However, Neiner
has acknowledged that most of the employees considered
receiving a 15-minute paid lunch period as a benefit be-
cause they only had to be there 8 hours to get their reg-
ular pay, as compared with most other unit employees
who were required to be there for 8-1/2 hours, albeit
with one-half hour off for an unpaid lunch.
Neiner consulted Bragg. Neiner explained his proposed
change of the paid lunch period as twofold in purpose:
to increase productivity and to make hours available to
handle the health and safety clutter that was becoming a
problem. Neiner relates that Bragg pointed out their
status in regard to the Union, and the Employer was not
free to make unilateral changes without some good solid
need to make the changes, and not because it seemed like
a good idea. According to Neiner, Bragg had concerns,
and inquired how important it was. Neiner has variously
testified that he did not consider it a very significant
change for employees, but he did consider it a very im-
portant change as far as the viability of the operation;
and that he told Bragg he (Neiner) felt it was quite im-
portant or, of considerable importance, and would have
minor impact on the shop; and that he probably told
Bragg that it had to be done.
Neiner has acknowledged that not all those employees
affected by the change were used on cleanup; some ap-
parently objected to cleanup assignment, and they were
used in further production. Neiner has also acknowl-
edged that he did not calculate the profit increase of
eliminating the 15-minute paid lunch period as such; or
the savings in supervisors' time; and that he did not have
timestudies done. However, he has testified that he did
look at productivity figures (production hours) of the
machine shop; and that he did a formal cost analysis on
productivity in the department, though not related to
this particular change, as there were a number of
changes made at the same time. Neiner has also acknowl-
edged that he could have accomplished the same thing
(re cleanup) by hiring additional help, or by overtime,
but hiring additional help cost money, and use of over-
time cost more. Neiner candidly relates that what he saw
was an opportunity to take a policy, which did not make
a whole lot of sense in the first place, and gain a signifi-
cant number of hours rather than use overtime or hire,
which would have magnified the accounting confusion
and added people to congested areas. Neiner acknowl-
edged that he did not hire anyone for this material pur-
pose.
II. CONTENTIONS AND PRELIMINARY FINDINGS
The General Counsel centrally contends that Respond-
ent was under a duty to notify and bargain with the
Union concerning its change in paid lunch policy under
the holdings of both Mike O'Connor Chevrolet, 209
NLRB 701 (1974), enf. denied on other grounds 512 F.2d
684 (8th Cir. 1975), and NLRB v. First National Mainte-
nance Corp., 452 U.S. 666 (1981). The General Counsel
argues from the Mike O'Connor Chevrolet case itself,
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supra at 704, we learn that "sound business consider-
ations" are not sufficient to excuse an employer from its
duty to bargain about "wages, hours and other terms and
conditions of employment " within the meaning of Sec-
tion 8(d); and that neither does economic expediency,
even in good faith. Fleming Mfg. Co., 119 NLRB 452,
465 (1957). The General Counsel asserts that it is beyond
argument that the Employer's unilateral change in the
paid lunch period policy involved wages and hours of
employment within the meaning of the Act. However,
the General Counsel concedes that the cases cited by the
Board in Mike O'Connor Chevrolet, supra (209 NLRB at
703, fn. 10), otherwise offer little substantive guidance as
to what in fact the excepting phrase "compelling eco-
nomic considerations" means. Charging Party Union
would appear to have conceded as much in its relation in
brief that the cases do not, "flesh out to any extent a
more precise definition of `compelling economic consid-
eration."'
The General Counsel would appear to advance as an
appropriate further explanation of the meaning of the
phrase, that there must be extraordinary circumstances
present to compel an employer to act immediately. In that
respect, the General Counsel has severally argued that
there is not a modicum of evidence that Van Dorn, or
the Strongsville plant in particular, was in dire straits;
nor is there shown in any sense that an economic emer-
gency was confronting management requiring corrective
measures so immediate that time devoted to bargaining
could have or would have proved disastrous. The Gener-
al Counsel more specifically agrues that there is no evi-
dence that the business was being jeopardized by this paid
lunch period in such a manner that it could not have
been continued for the period necessary to bargain the
change, without irreparable damage to the Respondent's
profit or production picture. Finally, the General Coun-
sel has also argued that there was no evidence of any
emergency in operations so compelling that a change in
this plan, if not effected immediately, would have been
catastrophic to the present or future economic health of
the Respondent.
It would thus appear from the above that fair kernel of
the General Counsel's contention is that there must be
clear and extraordinary circumstances present such as
reveal some real and immediate economic danger to the
Employer should it fail to act. Only in such circum-
stances is the Employer truly compelled to act, and thus
to be excused when it so acts unilaterally prior to final
determination of the legal efficacy of the unit the em-
ployees' designation of the Union as their exclusive col-
lective-bargaining agent. Otherwise the Employer is at
risk in unilaterally changing "wages, hours, and other
terms and conditions of employment."
The Union flatly submits that the Mike O'Connor
Chevrolet rule was designed to permit an employer who
was on the verge of economic collapse to make changes in
order to help prevent the imminent loss of the business as a
whole. The Union contends that Respondent has failed to
show anything here so compelling. The Union further
argues, in contrast with that proposal, that in regard to
what the Employer has shown, Respondent seeks to give
new meaning to the term in its advancement of the Mike
O'Connor defense, where the employer was profitable
both before and after the change; and where it did not
even know the specific effect of the paid lunch change
on the cost of its doing business. The Union asserts the
Employer here became more productive by simply
taking a benefit away from employees.
In contrast, Respondent argues that hearing evidence
has established clearly that when Van Dorn modified its
paid lunch policy, it was motivated by "business necessi-
ty." The Employer argues essentially that under Mike
O'Connor Chevrolet, it faced two choices. It could refrain
from taking any action, or it could act at its peril and
unilaterally implement change, and face a backpay liabil-
ity if the Employer's objections are overruled (as they
have been). Either way the Employer asserts employer
and employees are hurt. However, the Employer would
draw a distinction from where it asserts an employer
cannot act unilaterally at all, as in the case where the
Union has been previously certified and the issue is one
of continued bargaining status, as raised in an RD (decer-
tification) petition. The Employer urges, in contrast, that
the circumstances are significantly different in a Mike
O'Connor type case in that:
The Union in these cases has not yet been certi-
fied as the true representative of the employer, and
the employer is under no duty to bargain with the
Union. See General Electric Co., 163 NLRB 198
(1967). Bargaining with the Union therefore is not a
true option open to the employer.
Moreover Respondent argues that the Board has ac-
cordingly provided a way out of the dilemma that an
employer faces in a Mike O'Connor Chevrolet case. Re-
spondent's argument made in that respect is:
If the reason for the change is compelling, the
change can be made. This policy limits changes to
those that must be made and preserves the rights of
the employees to have a real, and not a [P]yrrhic
victory. Van Dorn was faced with the business ne-
cessity or making the change in policy immediately.
For counsel for the General Counsel to suggest that
Van Dorn should have waited until certification
and then bargained with the Union ignores the fact
that at the time the change was made, six months
had already expired since the Union election and
that Van Dorn had not inkling how many more
months or years would pass before the Union
would gain certification. Such inordinate delay in
light of the employer's need to make business and
economic decisions are precisely the reason why
Van Dorn was compelled to modify its paid lunch
policy.
Respondent essentially agrees that the Board has pro-
vided little guidance as to what the phrase "compelling
economic considerations" means within the context of
the Mike O'Connor Chevrolet principle of an employer
acting "at its peril." Respondent, however, would have it
observed that without reference to any precedent the
General Counsel nonetheless has contended that "the
VAN DORN MACHINERY CO. 1241
employer must demonstrate that it faced an economic
emergency reguiring corrective measures so immediate
that time devoted to bargaining could have or would
have proved disastrous." Respondent argues that (stand-
ard) is a far cry from the Board 's provided showing of
"compelling economic circumstances" as a defense for
employer necessary unilateral action, "so as to avoid
forcing employers to commit economic suicide while
awaiting Board action ." Respondent would also have it
observed that two courts in reviewing the decision under
the Mike O'Connor Chevrolet case have considered
whether the employer's decisions were compelled by
"economic necessity ," NLRB v. Albs-Chalmers Corp., 601
F.2d 870, 874 (5th Cir 1979); and Sundstrand Heat Trans-
fer v. NLRB, 538 F .2d 1257, 1259 (7th Cir . 1976). Re-
spondent contends that common to both standards is a
premise that the employer 's action is dictated by "great
or imperative need."
Respondent additionally contends that the General
Counsel has wrongfully focused on whether there was
sufficient time to bargain and not on the motivation for
the Employer 's action . Respondent essentially submits
that the test must be one that can be applied by a reason-
able manager , one attempting to comply with the law;
and, that as such, it must be based on whether a reasona-
ble manager , confronting a situation, would say, "this
must be changed ." Van Dom further submits that no
reasonable manager confronting the above existing paid
lunch policy , with its demonstrable waste, confusion, in-
efficiency, and lack of purpose , in a marginally profitable
and highly competitive business , could say anything else
other than that the policy must be changed.
The Employer would further have rejected the Gener-
al Counsel and Union 's apparent imposition in the stand-
ard that there be present a condition of imminent finan-
cial disaster . The Employer instead submits "one can
hardly imagine an economic consideration more compel-
ling than the continued viability of business ." Finally the
Employer argues that "by no stretch of the imagination
of any amount of second guessing could Van Dom have
been expected to endure such an intolerable policy from
1977 until 1982."
In reply brief the Union counters essentially that the
Employer cannot have it both ways. It can not argue
that its unilateral change in its paid lunch period policy
was essentially insignificant , having little or no effect on
the terms and conditions of employment of a limited
number of affected employees and, concurrently , assert
that if the change was not made it could have been tan-
tamount to "economic suicide ." To the contrary, the
Union argues essentially that on close analysis, apart
from certain conclusory statements of Neiner, the Em-
ployer has presented no hard evidence that it was about
to commit economic suicide if it did not change its paid
lunch period policy in the manner it did.
The Union further argues that in advancing a claim
that under Mike O'Connor Chevrolet , the applicable
standard is now to be defined to be that if a "reasonable
manager" would say "this must be changed," Respond-
ent itself adopts unprecedent standard , one without any
legal foundation , and one that would obliterate the
(prior) meaning of Mike O'Connor Chevrolet. The Union
urges such a standard would have the ready result that
an employer would now be free to make whatever
change it deems important.
The Union also contends , specifically , that the Em-
ployer's estimation of a savings of 10-20 hours of pro-
duction a day being effected by the change is exaggerat-
ed, and not supported of record beyond the 7- 10 hours
reasonably established of record , viz, a 15-minute daily
production time saving multiplied by the 30 -40 individ-
uals affected ; but that, to that extent , the Employer is
also wrong in asserting that the affected individuals did
not have to work any additional time as a result of the
change. The Union further argues that the Employer
knew it was acting at great risk in making the change in
its paid lunch policy , chose to gamble, and quite clearly
lost. With regard to proceedings delay , the Union points
out essentially that employees selected their bargaining
agent in April 1977 , and they have been waiting the
same period for a collective -bargaining-right vindication
in this matter ; and finally the Union essentially argues
that it should not be lost sight of that the delays that
have occurred are of the Employer 's own making.
The General Counsel also argues that Respondent was
obligated to bargain with the Union concerning its deci-
sion reached on a paid lunch period change , before uni-
laterally effecting a change, under the principles of First
National Maintenance , supra, and the Board-related hold-
ing in Otis Elevator Co., 269 NLRB 891 (1984). In that
regard the General Counsel and the Union both contend,
and Employer does not appear to contracontend , that the
Employer's change in its paid lunch period policy had
nothing to do with a change in the nature and direction
of Van Dom's business . The General Counsel has ob-
served (accurately in relationship to the change in lunch
period policy itself) that there was here no supporting
base of extraordinary activity of such order. The change
involved no partial closing or selling; and it involved no
decision to: dispose of assets, restructure , reconsolidate
operations, or subcontract; or to invest in any labor-
saving machinery; or to change any methods of finance,
sales, advertising , product design, or any other facet of
its business. The General Counsel argues (and I find) that
Respondent 's business was the same both before and
after the change . What materially changed , so argues the
General Counsel additionally , was solely the hours of
certain employees , and the fact they were no longer paid
a 15-minute paid lunch period, which the General Coun-
sel agrues was an established term and condition of em-
ployment of those affected employees , and/or clearly an
element of the employees' wages and hours, and thus a
core mandatory subject of bargaining under both First
National Maintenance and Otis Elevator, supra.
The Union also contends that Employer 's decision to
change its paid lunch policy was a mandatory subject of
bargaining under First National Maintenance, supra; and
in that respect would rely more precisely wholly on the
court 's grouping of management 's decisions in that case
into three categories , 452 U . S. at 676-677 , as follows:
Some management decisions, such as choice of
advertising and promotion , product type and
design, and financing arrangements , have only an
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
indirect and attenuated impact on the employment
relationship . Other management decision , such as
the order of succession of layoffs and recalls, pro-
duction quotas , and work rules , are almost exclu-
sively "an aspect of the relationship" between [em-
ployer and] employee . The present case concerns a
third type of management decision, one that had a
direct impact on employment , since jobs were inex-
orably eliminated by the termination , but had as its
focus only the economic profitablity of the contract
with Greenpark , a concern under these facts wholly
apart from the employment relationship . This deci-
sion , involving a change in the scope and direction
of the enterprise, is akin to the decision whether to
be in business at all, "not in [itself] primarily about
conditions of employment, though the effect of the
decision may be necessarily to terminate employ-
ment." [Citations omitted.]
The Union first argues that the Employer 's change ef-
fected in paid lunch period policy clearly falls in catego-
ry two ("almost exclusively ' an aspect of the relation-
ship' between employer and employee"). The Union sec-
ondly argues that the Employer has a similar task in de-
fense under First National Maintenance (one akin to deci-
sion whether to be in business at all) that the Union
argues the Employer has under Mike O'Connor Chevrolet,
viz, to show that the business' survival was immediately
at stake . The Union would also rely on the Supreme
Court's observation in the case that mandatory bargain-
ing is based on the concept that it will result in discus-
sions that are better for both management and labor, but
that that would be only true where the subject is amena-
ble to resolution through the collective-bargaining proc-
ess, 452 U .S. at 678 . It would appear only otherwise to
be observed that in First National Maintenance , the Court
was there determining the question as (broadly ) raised by
a petitioning employer, " [W]hether the decision itself
should be considered part of petitioner's retained free-
dom to manage its affairs unrelated to employment." Id.
at 677.
Essentially , both the General Counsel and Union
would have additionally observed a Board-related state-
ment in Otis Elevator, 269 NLRB at 892:
[T]he critical factor to the determination whether
the decision is subject to mandatory bargaining is
the essence of the decision itself, i.e., whether it
turns upon a change in the nature or direction of
the business, or turns on labor costs ; not its effect on
employees nor a union 's ability to offer alternatives.
The General Counsel finally argues the change that the
Employer has here effected in its paid lunch period
turned essentially on labor costs; and, that these costs, in-
cluded the cost of the 15-minute break (paid lunch
period) itself; the inspector time on job ; and the (related)
costs of administering the system , and managing the
paper work . (I find it also turned on consideration of
cost associated with required plant cleanup of clutter.)
The Union has similarly argued that this was no funda-
mental change in the business . Here the Employer has
simply appropriated the paid lunch period of certain em-
ployees for purposes of forcing those employees to work
additional time without additional compensation. The
Union contends that the Employer thereby unilaterally
cut the hourly rate of affected employees, in violation of
the Act.
As noted, the Employer does not appear to seek to
defend its change in paid lunch policy on the basis of
any contended change in the scope, nature, or direction
of the business operation . In any event, I conclude and
find , on the basis of all the facts of this record, that Re-
spondent Employer was not engaged in effecting a
change in the scope , nature , or direction of the business
in regard to its 7 October 1977 change in its paid lunch
period policy.
The Employer does, however , contend that the Gener-
al Counsel has completely ignored a significant category
of employer decisions under First National Maintenance
that are excluded from the duty to bargain, namely, sub-
jects that "have only an indirect and attenuated impact
on the employment relationship ." 452 U.S. at 677. The
Employer does not seek to have any of the examples
there cited (of choice of advertising and promotions,
product type and design, and financing arrangements)
serve to embrace its questioned paid lunch period policy
change action here . The Employer essentially argues for
an extension of the elucidated covered categories as
named by the court that "have only an indirect and at-
tenuated impact on the (employment) relationship," (id.
at 677), to be inclusive of an additional category where
decisions, "impinge only indirectly upon employment se-
curity," on basis of the Board 's further observation made
in Otis Elevator, 269 NLRB 891 (1984). Specifically, in
that regard , the Employer relies on a Board acceptance
therein, id . 891, of the analysis of Justice Stewart 's opin-
ion in Fibreboard Corp Y. NLRB, as follows:
Our understanding of the Court 's construction of
Section 8(d) is best explicated by Mr . Justice Stew-
art's concurring opinion in Fibreboard Corp. v.
NLRB, 379 U.S. 203, 217 (1964), explicitly relied on
by the Court in First National Maintenance: "If, as I
think clear, the purpose of Section 8(d) is to de-
scribe a limited area subject to the duty of collec-
tive bargaining, those management decisions which
are fundamental to the basic direction of a corpo-
rate enterprise or which impinge only indirectly
upon employment security should be excluded from
the area ." 379 U .S. at 233.
The Employer would then additionally rely on urged
similar cases where the Board has found an employer
need not bargain with the union over unilateral decisions
that do not result in any material, substantial, or signifi-
cant change in the employees ' terms and conditions of
employment , whether the same arguably are to be
viewed as a benefit , loss, or increase . E.g., LaMousse
Inc., 259 NLRB 37, 48-49 (1981) (employer lengthening
of morning and afternoon breaks from 10 to 15 minutes);
Rust Craft Broadcasting of New York , 225 NLRB 327,
329 (1976) (employer 's replacement of manual recording
of time at work with timecloc;k); Weather Tec Corp., 238
NLRB 1535, 1536 ( 1978) (employer implementation of
VAN DORN MACHINERY CO. 1243
worktime attendance and pay docking procedure, and
discontinuance of purchase of coffee supplies); Lawson-
United Feldspar, 189 NLRB 350 (1971) (employer remov-
al of soft drink vending machines, after warning about
continued litter); Cherokee Culvert Co., 262 NLRB 917
(1982) (discontinuance of personal gas credit card, and
reissue at time of trip need); Alamo Cement Co., 281
NLRB 737 (1986) (increase in uniform rental cost passed
on to employees); and United Technologies Corp., 278
NLRB 306 (1986) (providing a rebate to employee find-
ing overcharges in medical bills).
The Union counters in reply brief that there is no logi-
cal connection between the court's addressed subjects
(advertising and promotion, product type and design,
and financing arrangements), and the Employer's paid
lunch period policy. While the Union acknowledges that
the court-enumerated subjects may lead to an individual
employee having a job or not, it notes that they have
very little direct impact on how the person performs
work that day. The Union in that respect, and in con-
trast, argues:
The abolition of a paid lunch period resulting in
employees working an additional 15-minutes per
day with no additional compensation is a clear ex-
ample of a change that directly and immediately af-
fects the employee, there is nothing indirect about it
at all.
The Union argues secondly that, in effect, the Em-
ployer has, in advancing the argument, as much as ad-
mitted its decision to change the paid lunch period was a
bargainable one under First National Maintenance be-
cause it directly affects employees; and the Employer has
sought to improperly characterize thereunder another
separate defense, namely, whether the change was signifi-
cant, as a First National Maintenance issue. The Union
argues to the contrary, that this is a new defense, and
different from the long-asserted defense that the Employ-
er had compelling reasons to act unilaterally. The Union
argues that raising this new defense is highly improper at
this time, as it comes 10 years too late. I find myself
wholly persuaded by the Union's i irst argument that paid
lunch is a bargainable subject. The latter argument, how-
ever, in my view, has only surface allure.
Here part of the Employer's justification of claimed
business necessity was Neiner's espousal that he viewed
the change in paid lunch period policy would have only
minor impact on the affected employees. However, as to
the substance of the Employer's contention of minor
impact on employees, I simply am otherwise not per-
suaded to that view. Rather I conclude and find the
matter of the Employer's unilateral change in paid lunch
period policy, in clearly and directly affecting (certain)
employees' wages and hours, was reasonably and clearly
a matter of substantial effect and concern to a significant
number of affected employees. Having so concluded, I
need not address other union arguments based on the
Employer's inconsistent position taken on claimed insig-
nificant change, advanced as being further supportive.
Before reaching final conclusions it seems only appro-
priate to set forth once again what none of the parties
have apparently addressed directly in their briefs, viz,
the Board's prior stated rationale underlying its Mike
O'Connor Chevrolet ruling, as pertaining to its finding
that an employer's unilateral change of wages, hours, and
other terms and conditions of employment of unit em-
ployees constitutes a violation of Section 8(a)(5) and (1)
of the Act, absent the required showing of "compelling
economic considerations," namely:
Such changes have the effect of bypassing, under-
cutting, and undermining the union's status as the
statutory representative of the employees in the
event a certification is issued . To hold otherwise
would allow an employer to box the union in on
future bargaining positions by implementing
changes of policy and practice during the period
when objections or determinative challenges to the
election are pending.
Analysis and Concluding Findings
I address the First National Maintenance issues first, as
that case's consideration determines fundamentally when
an employer has a duty to bargain about a unilateral de-
cision at all. The Employer's change in its paid lunch
policy did not involve a change in the scope, nature, or
direction of its business, nor may the change in issue rea-
sonably be construed to have involved any subordinate
employer activity heretofore considered by the Board as
such. Moreover, it affirmatively appears that the Em-
ployer's change in its paid lunch policy directly affected
the "wages, hours, and other terms and conditions of em-
ployment" of some 35 employees in that it required all
affected employees to stay each day an additional one-
half hour to complete their regular day's work; and, as
well, in that it required that they perform additional
work activity for 15 minutes of that period, rather than
allowing them, as under the prior established policy, to
continue to use 15 minutes of their regular 8-hour day as
a paid lunchtime. I agree with the General Counsel and
the Union that this was a direct change in the affected
employees' wages, hours, and other terms and conditions
of employment. In its clear essence, the decision to do so
involved a managerial decision that did not "have only
an indirect and attenuated impact on the employment re-
lationship," but rather was one (I conclude and find) that
involved "almost exclusively `an aspect of the relation-
ship' between employer and its employees." I further
conclude and find this change in paid lunch policy did
not fit into the declared categories where management is
to be free from the constraints of the bargaining process
deemed essential for the running of a profitable business
as outlined by the Supreme Court in First National Main-
tenance . To the contrary it here acted unilaterally in pre-
cise area in which it is not so privileged to act without
first notifying the Union of prospective change, and of-
fering to bargain with the Union. Here it is also only fair
to observe the Employer did not even offer to bargain
the matter conditionally, to offset any imperative to act
now, that it may have then perceived. Labor costs were
the clear considerations.
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I next address Mike O'Connor Chevrolet considerations.
To the extent that Respondent has defense on the basis
of certain language in General Electric, 163 NLRB 198
(1967), that it was under no duty to bargain with the
Union while it objections to election were pending, and
particularly in the light of the Employer's assertion that
because of compulsion of anticipated delays in the
Union's certification, it was free to act presently, the
Employer has essentially advanced at best a disagree-
ment, it seems to me, with the Board's basic holding in
Mike O'Connor Chevrolet that if an employer elects to act
unilaterally in that peirod, absent a showing of "compel-
ling economic considerations," it has violated Section
8(a)(5) and (1) of the Act.
Respondent's reliance on the General Electric case
would appear questionable otherwise. There the Board
essentially addressed a problem of remedy for apprecia-
ble unfair labor practices committed in the certification
year. Moreover, it is clear that there was no underlying
allegation of 8(a)(5) violation as to that employer's uni-
lateral wage increase granted pending objections and
before certification. Id. at 211. The case of Harbor Chev-
rolet, 93 NLRB 1326 (1951), cited in support, did not
itself appear to involve any question of precertification
employer unlawful unilateral action as here , but ad-
dressed only a refusal to bargain following certification.
Both cases in any event clearly predate the Board hold-
ing in Mike O'Connor Chevrolet, supra. Moreover, the
Board has since clearly held that an employer's obliga-
tion to bargain arises on the date a majority of the appro-
priate bargaining unit employees selects the Union as
their representative, Gulf States Mfrs., 261 NLRB 852,
863 (1982). In connection with the case cited thereat,
Howard Plating Industries, 230 NLRB 178, 179 (1977), see
and compare on the issue of employer unilateral action
precertification, Clements Wire & Mfg. Co., 257 NLRB
1058, 1064, fn. 7 (1981). The duty to bargain, at least in
the sense of a prohibition on unilateral changes, attaches
as of the election date, Celotex Corp., 259 NLRB 1186,
1193 (1982); NLRB v. Carbonex Coal Co., 679 F.2d 200,
205 (10th Cir. 1982). Additional claim raised of quandry
for an employer has been heretofore concluded to be of
little merit where the employer has unilaterally changed
existing conditions of employment, NLRB v. Dothan
Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970).
Question arises whether any further defense consider-
ation of justifiable "compelling economic considerations"
remains for consideration under Mike O'Connor Chevro-
let, supra, beyond that covered by the directed applica-
tions of First National Maintenance, supra, and Otis Ele-
vator, supra. Certainly the Court's opinion, accepted by
the Board, governs as the law of this case. However, the
Court's opinion and directive does not appear exclusion-
ary of any other warranted Mike O'Connor Chevrolet
consideration. It is unclear whether Board acceptance of
the court's directive in this case is intended to extend
beyond this case, e.g., as an engraftment on the definition
of its standard of "compelling economic considerations"
as earlier declared in Mike O'Connor Chevrolet; and, even
if so, whether the standard "compelling economic con-
sideration" is to yet import more.
In my view it does import more. This is deemed so be-
cause it appears the precedential scope of the Mike
O'Connor Chevrolet case, continues its defensive protec-
tion over subjects that an employer normally has a duty
to bargain , but as to which, by Board-provided Mike
O'Connor Chevrolet exception, it may act unilaterally,
provided it can show its action in such an area was ac-
complished because of "compelling economic consider-
ation." However, remnant of Board holding in Van Dorn
Plastic Machinery Co., 265 NLRB 864, 865 (1982), would
appear to continue to guide on Board general view that
such circumstances would (seemingly now the more so)
be rare.
The Employer faced plant difficulties in the instant
case that ought not be and are not disguised. E.g., a new
manager's review and corrective action, which was ad-
dressed to a plant situation involving confusion, disorga-
nization , loss of production time, inefficiency in use of
personnel, and a greater need for supervision, has been
heretofore found by the Board to be convincing business
justification for an implementation of more rigid rules
with regard to absenteeism and production. Cf. Service
Spring Co., 263 NLRB 812, 814 (1982). However, the
above finding was made on 8(a)(3) allegation only. Relat-
ed 8(a)(5) allegations in that case failed where, unlike
here, the necessary element of a failure to consult with
the Union was determined not only there not present,
but indeed contraindicated. Id. at 821-822.
The parties have made contentions as to what "com-
pelling economic consideration" means, or should be
construed to mean. It appears unlikely the Union's view
essentially that an employer must show it is facing "eco-
nomic collapse" is to be the limiting reach of the stand-
ard if the Mike O'Connor rule is to have independent ap-
plication and use. The urged union standard would
appear to equate to first National Maintenance, supra,
apparent encompassing observation that the Employer
may terminate or halt an operation with sole purpose to
reduce economic loss, 452 U.S. at 687, or related Board
holdings: that an employee has no duty to bargain over a
decision essentially changing the scope, nature, or direc-
tion of the enterprise, as, e.g., where it acts unilaterally
to preserve the business, UOP Inc., 272 NLRB 999, 1000
(1984); or, to eliminate the last vestige of an outmoded
and less profitable business operation, Kroger Co., 273
NLRB 462 (1984). However, neither do employees'
wages, hours, and other terms and conditions of employ-
ment rest so tentatively on a manager's mere exercise of
sound business judgment that might lead a manager to a
conclusion as to what next must be done, except as is es-
tablished as lawful management prerogative under First
National Maintenance. To the extent Respondent has
broadly advanced argument that a manager must be able
to reasonably know what he can do without bargaining,
it seems to me that very consideration is what has been
already addressed, and resolved in the reach of First Na-
tional Maintenance, supra, which has broadly established
guidance for what the nonmandatory and mandatory
decisional categories are, 452 U.S. at 679. Employer's
unilateral action herein has been found not to qualify
under either determined nonmandatory bargaining deci-
VAN DORN MACHINERY CO. 1245
sional exception as determined by the Supreme Court in
First National Maintenance.
Under Mike O'Connor Chevrolet, the Employer's uni-
lateral action, if to be otherwise justified, must be shown
to rest on "compelling economic considerations." This
much would appear clear from the above-considered
precedents. The Employer's unilateral act must rest on
some business circumstances that are discernibly more
demanding than calling for mere exercise of sound busi-
ness judgment, if the same is to import the essence of an
excusing compelled act based on economic consideration.
Yet it would appear also fairly to be assessed as encom-
passing something less than an imminent business col-
lapse, or requiring a demonstrable jeopardy of same. It
seems to me it is enough of a standard to otherwise pro-
ceed on basis of an ad hoc discernment of whether there
is some real and unavoidable economic driving force
behind the advanced business details that should excuse
an employer's unilateral act. See NLRB v. Katz, 369 U.S.
736, 747-748 (1962). Beyond that 1 need not presently go
to address and resolve the instant matter, particularly, as
I remain unsure that the Board has heretofore intended
that its Mike O'Connor Chevrolet rule is to be applied on
other than just such an ad hoc case-by-case approach, cf.
Gulf States Mfrs., supra, 261 NLRB at 864; albeit rarely,
Van Dorn Plastics Machinery Co., 265 NLRB at 865.
Neiner's reasons for changing the paid lunch period
policy on 7 October 1977 were (as he relates) essentially
but twofold. He made the change, at that time, first, to
eliminate long-perceived unnecessary loss of productivity
time in certain machine shop support areas by taking cer-
tain employees that he viewed were not essential to the
Employer's continuous NC machine operation off their
existing paid lunch status, thereby increasing their time
at the plant to 8-1/2 hours and occasioning a one-half-
hour overlap in their shifts, whereby, they could be and
were utilized in that overlap period either to address and
meet the Employer's pressing labor requirements for
eliminating the ongoing ship clutter that had occasioned
the recent OSHA citations, or otherwise to increase
profit margins by providing 15 minutes of increased pro-
duction time each day, at no additional labor cost to the
Employer. Secondly, but only to the degree of employees
affected by this change, his collateral purpose was to
lessen problems (i.e., inspection-two-shift operator
problems), but in clear principal part to effect a reduc-
tion in foremen and accounting personnel problems in
regard to schedules and correct pay determinations.
Though the same type problems no doubt continued, and
in substantial measure , due to continued effects of rapid
growth and considerable employee turnover, there was a
reduction in the degree of their occurrence. To extent
Neiner has advanced guess, his initial purpose was also
to diminish suspected lunch period abuse by some em-
ployees, I find such urging much less persuasive. No spe-
cifics of actual prior abuses, let alone hard evidence, was
offered in support of this contention, nor satisfactory ex-
planation offered why any such abuse could not be cured
short of change in paid lunch policy. Indeed, in the end,
I conclude it to be more of an add-on variety embellish-
ment . In any event , I was in this singular matter unim-
pressed with Neiner's advancement of it as the initiating
or in any sense driving force for the Employer's action.
The Employer has urged that Neiner should not be
second guessed. If this argument is intended to mean that
Neiner's asserted reasons for the unilateral change must
be accepted without testimonial evaluation, or without
any analysis of the evidentiary support offered for their
purported imperative or compelling nature, though
being, advanced and urged to defend the Employer's de-
termined and otherwise unlawful unilateral change in
employees wages, hours, and other terms and conditions
of employment, that urging itself must simply be and is
rejected.
Though significant in one sense, I do not find in any
sense dispositive the General Counsel's and Union's sev-
eral arguments on the lack of time studies, of various
cost-savings evaluation, which in the end amount to but
a consideration that there was no qualitative analysis on
the specific impact of the change effected in paid lunch
period policy that independently indicates the change's
impact was on a compelling nature. Essentially, Neiner's
ongoing cost analysis of the entire shop, which took into
account the effect of all his changes, was a reasonable
managerial assessment of the result of all changes effect-
ed. However, neither do I find that the Employer's own
attempted reliance on Neiner's general cost analysis of
the machine shop that took into account his broad
changes (made in managerial and personnel assignments,
manufacturing operations, including product design by
the engineers) effectively carries the day for the Employ-
er in establishing that the instant change in paid lunch
policy itself was a compelled act.
The Employer has relatedly argued on the basis of
Neiner's assertions that this change also had to be done,
that the change in paid lunch policy as effected on 7 Oc-
tober 1977 was absolutely necessary for the continued vi-
ability of the business; and further, that the fact is one of
many changes effected by Neiner, serves to underscore
its own seriousness. I have no doubt the change was not
accomplished on a Neiner whim, or that Neiner did not
carefully discuss it with Bragg . Nonetheless, it seems to
me that the latter argument but begs the question. Specif-
ic claim of immediate need, does not rest easy with
Neiner's own management of the operation without such
change being effected for almost a year, any more than
the same, or the delay of addressment does with the Em-
ployer's other argument that no reasonable manager con-
fronted with the preexisting lunch period policy, with its
waste, confusion, inefficiency, and lack of purpose, could
say anything else but that it must be changed now. To be
sure, Neiner has testified that he never understood why
certain employees received paid lunch, but he has made
no claim that he always wanted to change it, but was
precluded by others; or, had been continuously prevent-
ed by other considerations, before 7 October 1977.
The argument that the change in paid lunch period
policy was a serious or grave matter to Employer's on-
going viability because it was one of several changes ef-
fected by Neiner also begs the question because all the
other managerial changes and assignments made or set in
place by Neiner in the first year of his managerial em-
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment are not the subject of complaint allegation.
Only the change effected in the employee 's paid lunch
policy in October is the subject . That an Employer, with
a long period of strained profitability brought on by
large capital expenditures in recent years and experienc-
ing a period of present rapid growth , no doubt, may be
expected to have its managers be sensitive to consider-
ations affecting continued viability of the business; and to
be aware of continuing need for managerial evaluation
and fine tuning of operations , is not questioned here. But
that, it seems to me, calls for no more than exercise of
good or sound business judgment in those circumstances.
Moreover, the fact that a number of managerial actions
in certain areas are lawful and have been unquestioned
does not automatically color as also lawful , another spe-
cific employer act accomplished unilaterally under indi-
cated unlawful circumstances . There is no argument
made , and if intended heretofore to be made , no ade-
quate showing established of record to support a conten-
tion that the Employer 's unilateral change in paid lunch
policy, herein found to have directly and adversely af-
fected employees ' wages , hours , and other terms and
conditions of employment , was itself a necessary or indis-
pensable ingredient to an effective broader managerial
lawful action.
The parties have advanced arguments based on the cir-
cumstances that only 10 percent of the work force was
affected by the change , by the General Counsel and by
Union to show the Employer 's change was not a com-
pelled one , and by the Employer in support of its argu-
ment the change had minor or insignificant effect on em-
ployees . In my assessment of the claimed compelling or
imperative nature of Employer 's unilateral action, it
seems to me, the fact that the change affected but 10 per-
cent of the work force tends to more support the Gener-
al Counsel and the Union , than the Employer ; and only
the more so where I have also concluded and found that
the Employer's related claim that its action had only
minor impact on the affected employees is not a pursua-
sive one. The number of employees directly affected is
no defense . Cf. Peat Mfg. Co., 261 NLRB 240, 242
(1982).
Respondent 's reliance on permitted employer unilateral
action because of "business necessity" in Dilene Answer-
ing Service , 257 NLRB 284, 285 fn . 6 (1987), would also
appear misplaced. There the Union was consulted by the
employer in bargaining and presented with an employer's
proposed holiday schedule change . The change was sub-
sequently enacted because of business necessity, but in
circumstances in which the union had not timely re-
sponded in bargaining. Here the Union was afforded no
such opportunity.
The matter need not be further belabored . I have con-
sidered all the Employer's remaining arguments and con-
clude they are without merit . There is no duty on the
part of a union to demand bargaining on material, sub-
stantial , and significant changes while a respondent's ob-
jections are pending on appeal before the Board, Hudson
Oxygen Therapy Sales Co., 264 NLRB 61, 74 (1982); Peat
Mfg. Co . 261 NLRB 240 fn . 2 (1982). The fact the Em-
ployer vigorously pursued its objections to election does
not call for conclusion other than that reached here.
It is accordingly concluded and found that the Em-
ployer has not established by clear and convincing evi-
dence that it changed its paid lunch period policy be-
cause of "compelling economic considerations" within
the meaning of the Board's holding in Mike O'Connor
Chevrolet, supra. Moreover, Employer has as much as ad-
mitted that its anticipation of delay in the resolution of
the Union certification issue was a substantial factor in
Employer's action being taken at the time it was. I thus
further conclude that there appears merit to union obser-
vation that the Employer in making its decision to pro-
ceed unilaterally at the time, effectively gambled that its
objections to election would be subsequently sustained as
meritorious, and that resultingly, the earlier indicated
majority designation of the Union as exclusive collective-
bargaining representative of employees would not be cer-
tified, and if certified by the Board, would not be sus-
tained by the court on appeal. It is in any event conclud-
ed and found that by changing its paid lunch period
policy in the manner it did on 7 October 1977, the Em-
ployer unilaterally changed the wages, hours, and other
terms and conditions of employment of employees in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Van Dom Plastic Machinery Co., Division of Van
Dorn Company is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. District Lodge 54 of the International Association
of Machinists and Aerospace Workers, AFL-CIO is a
labor union within the meaning of Section 2(5) of the
Act.
3. On 7 October 1977 the Employer unilaterally
changed its paid lunch period policy, which directly and
adversely affected the wages, hours, and other terms and
conditions of employment of employees, without notify-
ing and discussing with the Union its decision to do so.
4. The Employer's unilateral act described in para-
graph 3, above, involved a decision that did not consti-
tute a change in the scope, nature, or direction of its
business; and neither was it a decision that had only an
"indirect and attenuated impact on the relationship" of
the Employer and employees, nor was it a decision made
to preserve the business; but it was a decision that in-
volved "almost exclusively 'an aspect of the relationship'
between employer and employee," which must be bar-
gained, within the holding of First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981).
5. The Employer has not established by clear and con-
vincing evidence that it changed its paid lunch period
policy because of "compelling economic considerations"
within the holding of the Board in Mike O'Connor Chev-
rolet, 209 NLRB 701 (1974), enf. denied on other
grounds 512 F.2d 684 (8th Cir. 1975).
6. By engaging unilaterally in the conduct as described
in paragraph 3 above, the Employer has violated Section
8(a)(5) and (1) of the Act.
REMEDY
Having found Respondent to have violated Section
8(a)(5) and (1) by making the above change in its paid
VAN DORN MACHINERY CO.
lunch policy unilaterally, it will be recommeded that Re-
spondent be ordered to cease and desist from refusing to
meet and bargain with the Union with regard to its deci-
sion to change its paid lunch policy. The Board will nor-
mally remedially order a return to status quo ante. The
Employer has made general reference to certain changes
in circumstances that may have affected the identity and
number of employees affected by the change. The Board
has previously provided, and the Court heretofore en-
forced an Order that the Employer bargain with the
Union concerning the effects of its above change in paid
lunch policy. Under these circumstances it will be rec-
ommended to the Board that the Board now additionally
order that Respondent Employer, on request of the
Union, immediately rescind its paid lunch policy as the
same existed after the Employer had unilaterally changed
its policy on 7 October 1977, and the Employer forth-
with restore its paid lunch policy as declared and applied
theretofore since 19 April 1976.
It will be further recommended that Respondent Em-
ployer be ordered to make all affected employees whole
for monetary loss of the 15-minute paid lunch I find they
suffered as a result of the above unlawful unilateral
change, for the period from 7 October 1977, until such
date as Respondent bargains in good faith with the
Union thereon to agreement, or to impasse, or there is a
failure on the part of the Union to commence bargaining
within 5 days of the Employer' s request . to do so, or
there is a failure on the part of the Union to bargain in
good faith.
Monetary amounts due individuals heretofore negotiat-
ed and agreed to in effects bargaining (if any) may be
raised, where appropriate, as an offset to total make-
whole amount due an individual, respectively, as may be
determined in the compliance stage. Any change in iden-
tity of employee's affected by the change in paid lunch
policy found unlawfully may be addressed by all parties
in compliance. Interest on the amount lost shall be com-
puted in the manner now prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). I also fmd it neces-
sary to provide for posting of an appropriate additional
notice to employees.
On the foregoing findings of fact and conclusions of
law, and the entire record in this matter, and pursuant to
Section 10(c) of the Act, I issue the folllowing recom-
mended'
ORDER
The Respondent, Van Dorn Plastic Machinery Co.,
Division of Van Dorn Company, Strongsville, Ohio, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain with District Lodge
54 of the International Association of Machinists and
Aerospace Workers, AFL-CIO with regard to a decision
to change its paid lunch policy for employees.
i 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.
1247
(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) On request of the Union, immediately rescind its
paid lunch policy for employees as the same existed after
Respondent Employer unilaterally changed its policy on
7 October 1977, and forthwith restore its written paid
lunch policy as previously declared and applied since 19
April 1976.
(b) Make whole all affected employees, in accordance
with the remedy section , for any monetary loss they suf-
fered as a result of the above unilateral change in the 15-
minute paid lunch period.
(c) Post at Strongsville, Ohio plant copies of the at-
tached notice marked "Appendix."2 Copies of the notice,
on forms provided by the Regional Director for Region
8, after being signed by the Respondent's authorized rep-
resentative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2 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."
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain with District
Lodge 54 of the International Association of Machinist
and Aerospace Workers, AFL-CIO with regard to a de-
cision to change our paid lunch policy for employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL on request of District Lodge 54 of the Inter-
national Association Machinist and Aerospace Workers,
AFL-CIO immediately rescind our paid lunch policy
change of 7 October 1977 and forthwith restore out paid
lunch policy as declared and applied theretofore since 19
April 1976.
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL make whole all affected employees for any
monetary loss they suffered as a result of our unilateral
change in the 15-minute paid lunch policy.
VAN DORN PLASTIC MACHINERY CO.,
DIVISION OF VAN DORN COMPANY