General Electric Co.

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