General Motors Corp.

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional office, Boston Five Cents Savings Bank Building, 24 School Street , Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. General Motors Corporation, Buick-Oldsmobile-Pontiac Assem- bly Division and International Union, United Automobile, Aerospace and Agricultural' Implement Workers of America (UAW), AFL-CIO. Case No. 01-CA-5401. October 30, 1964 DECISION AND ORDER On May 5, 1964, Trial Examiner Howard Myers issued his De- cision in the above-entitled proceeding, finding that 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 attached Trial Examiner's De- cision. Thereafter, Respondent, the Union, and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel also filed an answering brief. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with this Decision and Order. The Trial Examiner found that Respondent failed and refused to fulfill its bargaining obligation in violation of Section 8 (a) (5) and (1) of the Act by not giving prior notice to or consulting with the Union when it leased the OK parking lot at its South Gate, Cali- fornia, plant, to Pacific Motor Trucking Co.' on June 17, 1963, and contracted with that' firm to have the latter's employees do work which Respondent's drivers had previously performed. We disagree for the reasons given below. The record shows'that prior to June 17, 1963, an area near the plant was occupied by two parking lots. The OK parking lot in the western section of the area adjoined the end of the assembly line and was used by Respondent for temporarily parking cars while its car distribution department made up the loads to be turned over to PMT. The other lot, which was adjacent to but separated by a fence with a gate from the OK lot, was leased from Respondent by PMT for 1 Herein called PMT. 149 NLRB No. 40. GENERAL MOTORS CORPORATION, ETC. 397 temporarily parking cars to be loaded on PMT haulaway trucks or multilevel rail carriers. Upon approval of the assembled cars in Respondent's car condi- tioning department, employees in the bargaining unit, known as drivers of unlicensed cars, drove the cars to the end of the assembly line. Before June 17, 18 employees,2 who were also in the bargaining unit, then drove the cars to numbered "spots" in the OK lot, which they noted on the manifests that accompanied each car. The mani- fests were sent to Respondent's car distribution department,3 which made up the loads for various dealers, and were returned to the de- partment 66 drivers who drove the cars from their spots in the OK lot to the shipping building near the PMT lot. These drivers then raised the hood and deck lid of the car, checked the battery to make sure there was a sufficient charge, emptied and partly refilled the gasoline tank, and picked up certain uninstalled accessories from the shipping building and placed them in the trunk.4 PMT next as- sumed responsibility for the cars and its employees known as yard- men or gatemen came through the gate and drove the cars to the PMT lot where they were parked for PMT shipment by haulaway trucks or multilevel railcarriers as directed by PMT dispatchers. As indicated above, the OK lot was leased to PMT on June 17 and the two lots were consolidated into one PMT lot. Since then the nondriving or service functions are performed by assembly line em- ployees of Respondent before the cars are taken by. drivers of un- licensed cars to the end of the assembly line where the cars and the manifests are turned over to PMT yardmen and gatemen 5 who drive the cars to spots designated in the manifest either in the former OK lot for rail shipment or to the old PMT lot for shipment by truck. The PMT driver then indicates in the manifest the spot in which the car is parked and returns to the end of the assembly line to pick up and park another car. The manifests, which at this point are re- ferred to as car shippers, are turned over to the PMT truck or rail dispatchers, who, in contrast to the pre-June 17 situation, now have the responsibility for making up loads which are to be handled by PMT loaders and truckdrivers. The Union received definite information from Respondent about the contemplated change when, at the behest of Sherman Kelton, chairman of the shop committee at the South Gate plant, Frank 2 Herein called department 66 drivers 3 Employees therein were not in the bargaining unit. * Department 66 drivers returned to their original starting point in the OK lot and once again picked up the newly assembled cars 5 The number of PMT yardmen and gatemen stood at 9 in January 1963, temporarily rose to 14 because of the "newness" of the consolidated operation , and was 10 in January 1964. PMT loaders increased from 26 to 40 after October 1963, because PMT then arranged to receive additional cars from Respondent's plant in Fremont, California. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James, an administrative assistant to Leonard Woodcock, vice presi- dent of the Union's General Motors Department in Detroit, tele- phoned Vernon M. Schneider, a Respondent official in Detroit, and was told on May 2 that "there was going to be definitely a move ... the jobs were going to be changed" in the OK lot. James protested that "this was our work; that management was wrong in giving the job to someone else." On June 3 James telephoned John Holmes, the personnel manager for Respondent's Buick-Oldsmobile-Pontiac en- tire assembly division, and told Holmes that the Union was still pro- testing any transfer of work at South Gate to PMT employees. Although the Trial Examiner found that plant officials at South Gate during May 1963 denied knowing anything about the transfer plan, the former called a special management-shop committee meet- ing on June 4 at which South Gate officials advised the shop com- mittee of its plan to commence "one-car shipments" to PMT in the near future.6 The shop committee contended that the contracting out of jobs of department 66 drivers was in violation of the Local wage and National agreements as the jobs were within the bargain- ing unit. ' i On June 12, some UAW International representatives and mem- bers of the shop committee met at South Gate with Schneider, Bruce Buckley, personnel director at South Gate, and other plant represent- atives. Buckley stated that the OK lot had been leased to PMT and that, effective June 17, Respondent would be turning over its finished cars to PMT near the end of the assembly line, and department 66 drivers would no longer be working on the OK lot. Schneider stated that management was taking this action by virtue of paragraph (8) of the National Agreement 7 which deals with management rights. When International representative Burrows contended that the change did not come within the National Agreement, Schneider sug- gested that the Union had "a recourse to follow," namely, the griev- ance procedure. At the request of the Local', special meetings were held between plant officials and the shop committee on June 13, 18, 19, and 20, to discuss Respondent's assignment of department 66 drivers at their old rate of pay to assembly line jobs in the bargaining unit. The Union contended that under paragraph (59) of the National Agree- 9 Paragraph (15) of the National Agreement provides for meetings "between repre- sentatives of the Local Management and the Shop Committee." 7 Paragraph ( 8) reads : "The right to hire ; promote ; discharge or discipline for cause ; and to maintain discipline and efficiency of employees , is the sole responsibility of the Corporation except that Union members shall not be discriminated against as such. In addition, the products to he manufactured, the location of plants , the schedules of produc- tion, the methods, processes and means of manufacturing are solely and exclusively the responsibility, of the Corporation." ^:c GENERAL MOTORS CORPORATION, ETC. 399 ment 8 department 66' drivers were entitled to "comparable work" as drivers of unlicensed cars. Management pointed out that the assem- bly line jobs paid the same rate as the jobs the department 66 drivers had been doing and that the rate for drivers of unlicensed cars was five cents less. In this connection, management took the position that paragraph (59) required that department 66 drivers be placed in those jobs in the unit which had a comparable rate. The settlement of this dispute included the following : Management agreed with the Union's request to transfer the department 66 drivers to jobs as drivers of unlicensed cars and other classifications where the employees were capable of doing the job. The Union waived any claim for any difference in pay. Employees displaced by the trans- fers would be assigned pursuant to the Local Seniority Agreement and the Union would not process grievances on behalf of the em- ployees displaced. Thereafter, on July 1, 1963, the shop committee presented to management a grievance, dated' June 21, charging that the removal of the department 66 drivers from their jobs on the OK lot violated the National Agreement and requesting their return thereto. The* shop committee took no further action in connection with this grievance which it withdrew on September 6, 1963. Gen- eral Counsel stated at the hearing that he was not contending that management had refused to bargain about this grievance. As indicated above, the Trial Examiner, in finding that Respond- ent was under an obligation to bargain ' with the Union concerning the OK lot, relied on Fibreboard Paper Products 9 and Town & Country Mfg. Co.,10 wherein the Board held that a management de- cision to subcontract work out of an existing unit, albeit for economic reasons, was a mandatory bargaining subject. Respondent contends that its plan to transfer the department 66 drivers to other jobs is not within the contemplation of the foregoing decisions as such a move was essentially a change of method without resultant layoffs or discharges and was permitted under the management rights pro- visions of its National Agreement with the Union. We find merit in this position. Paragraph ( 59) reads: "Seniority shall be by non-interchangeable occupational groups within departments , group of departments or plant-wide, as may be negotiated locally in each plant and reduced to writing It is mutually recognized by the parties that written local seniority agreements are necessary . All local seniority agreements and modifications or supplements thereto shall be reduced to writing and be subject to the approval of the Corporation and the International Union. "When changes in methods,, products, or policies would otherwise require the permanent laying off of employees , the seniority of the displaced employees shall become plant- wide and they shall be transferred out of the group in line with their seniority to work they are capable of doing, as comparable to the work they have been doing as may be available, at the rate for the job to which they have been transferred." 0 138 NLRB 550, enfd. 322 F. 2d 411 (.C.A.D.C ). 11136 NLRB 1022, enfd 316 F. 2d 846 (C.A., 5). L. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from the foregoing that the reassignment of the depart- ment 66 drivers to other jobs in the same bargaining unit did not result in any substantial impairment of the bargaining unit. As already indicated, the nondriving or servicing functions of the department 66 drivers, which represented a sizable part of their job, remained within the bargaining unit. That Respondent retained the freedom to make such changes is evident from paragraph (8) of the National Agreement which reserved, as the "exclusive responsibility" of Respondent, actions and decisions concerning "the method ... and means" of its operation. Similarly, Respondent's right unilaterally to make changes is clear from paragraph (59), wherein the parties agreed upon a procedure for the transfer of employees who would otherwise be laid off by "changes in methods, products, or policies." In addition, exclusive management rights in this regard are further provided for in paragraph (63) which states that "the transferring of employees is the sole responsibility of Management . . ." subject to such factors as seniority. We conclude that Respondent's changes respecting the OK lot and the department 66 drivers were within the scope of its managerial prerogative as explicitly recognized by the Union in the National Agreement. We also find it significant that, to the extent that the Union may have had a grievance as to the change, the grievance was fully discussed between management and the Union, particularly at the four meetings of local management and the shop committee from June 13 to 20, and was resolved by a settlement worked out at these meetings. Accordingly, we find, contrary to the Trial Examiner, that Re- spondent did not violate Section 8(a) (5) and (1) of the Act, as Re- spondent's leasing of the OK lot and transfer of the department 66 drivers pursuant to its managerial rights was a work reassignment and change of method under the provisions of the contract with the Union.- [The Board dismissed the complaint.] CHAIRMAN MCCULLOCH took no part in the consideration of the above Decision and Order. n In view of our disposition of the case on this basis, it is unnecessary to pass on the other grounds relied on by the Trial Examiner in finding a violation of the Act. Member Leedom joins his colleagues in finding no violation for the reasons which they have indicated. However, even accepting the Trial Examiner's theory of the case, I e., that the situation here is embraced by the Fibreboard line of cases, he would, nevertheless, be- cause of his dissenting position in this area, find no violation. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on June 14, 1963 , by International Union , United Automobile, Aerospace and Agricultural Implement Workers of America, GENERAL MOTORS CORPORATION, ETC. 401 (UAW), AFL-CIO, herein called the Union , the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel i and the Board, through the Regional Director for the Twenty-first Region (Los An-_ geles, California ), issued a complaint , dated January 27 , 1964, against General Motors Corporation , Buick-Oldsmobile-Pontiac Assembly Division , herein called Respondent, alleging that Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time , 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served upon Respondent and copies of the complaint and notice of hearing were duly served upon the Union. Specifically, the complaint alleges that: ( 1) Since December 14, 1962, the Union has been the duly designated and selected collective bargaining represent- ative of Respondent's employees in a certain appropriate unit ; (2) since on or about March 1, 1963 , the Union has requested Respondent to bargain collectively with respect to the subcontracting of certain work and the elimination of certain jobs at Respondent's OK Parking lot at its South Gate, California, plant, which work and jobs belonged to the employees in the aforesaid certain appropriate unit; and ( 3) since on or about June 17, 1963, the Respondent has engaged in the following acts and conduct : (a) unilaterally subcontracted certain work and eliminated certain jobs at its South Gate, California , plant ; (b) since December 14, 1962, and until May 2, 1963, failed and refused to inform the Union of its intention to subcontract and eliminate said certain work and jobs ; (c) from on or about December 14, 1962, until June 3, 1963 , Respondent failed and refused to answer any and all inquiries of the Union's local shop committee of its intention to subcontract work and eliminate certain jobs ; and (d ) since on or about De- cember 14, 1962, Respondent has refused to bargain collectively with the Union concerning the subcontracting of any work or the elimination of any job at its South Gate, California, plant. On February 6, 1964, Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was held from February 27 through March 4, 1964, before Trial Examiner Howard Myers. Each party was represented by counsel who participated in the hearing . Full and complete opportunity was afforded the parties to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally on the record at the conclusion of the taking of the evidence , and to file briefs on or before April 3, 1964. Briefs have been received from each party, which briefs have been carefully considered. At the conclusion of the General Counsel's case-in-chief, Respondent's counsel moved to dismiss the complaint for lack of proof. Decision thereon was re- served. At the conclusion of the taking of the evidence the said motion to dismiss was renewed . Decision was reserved . The motion is disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS General Motors Corporation, a Delaware corporation, is engaged in, among other things, the manufacture, sale, and distribution of automobile parts at var- ious plants located throughout the United States. For business reasons, General Motors Corporation functions through numerous divisions, one of which is known as the Buick-Oldsmobile-Pontiac Assembly Division, herein called the South Gate Plant or BOP which is located at South Gate, California.2 The South Gate plant's annual out-of-State purchases of goods and materials exceed $50,000 and its annual out-of-State sales exceed $50,000. Upon the basis of the foregoing facts, I find, in line with established Board authority, that Respondent is engaged in, and during all times material was engaged in, business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that its business operations meet the standards fixed by the Board for the assertion of jurisdiction. 1 This term specifically includes counsel for the General Counsel appearing at the hearing. 2 The production and maintenance employees of this plant are the only ones involved in this proceeding. 770-076-65-vol. 149-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Prefatory statement The Union is, and at all times material has been , the statutory collective-bar- gaining representative of the Respondent's production and maintenance em- ployees in a single company -wide bargaining unit, including the production and maintenance employees of the South Gate plant.3 At all' times material , Respondent and the Union have been , and now are, parties to a national collective-bargaining agreement, dated September 20, 1961, covering the employees in a company-wide bargaining unit represented by the Union, including those employed at the BOP plant. The BOP plant assembles passenger automobiles for shipment to General Mo- tors dealers in California and surrounding area. As new automobiles are assembled at the South Gate and are approved for shipment they are turned over to Pacific Motor Trucking Company, herein called PMT. Thereafter PMT has the responsibility for loading the automobiles onto multilevel rail cars or onto haulaway trucks for delivery to General Motors dealers. Prior to June 17, 1963, two paved parking lots of approximately equal size occupied the western one-third of the BOP plant. The southernmost of these two lots was known as the BOP's OK Parking lot and was used by BOP for temporar- ily parking cars ready for delivery to PMT while the BOP Car Distribution Department made up the loads to be turned over to PMT for shipment. The other paved lot, adjacent to the BOP OK Parking lot on the north, was leased from Respondent by PMT and was used by PMT for temporarily parking cars to be loaded on PMT haulaway trucks or on multilevel rail carriers. These two lots were separated by a wire fence with a gate through which cars were driven into the PMT lot by employees of PMT. Before June 17, 18 BOP bargaining-unit employees classified as "car loaders" were employed to drive cars from the wax booth 4 located at the end of the final shipping line 5 in the plant to numbered parking spaces in the OK Parking lot. After parking a car, the carloader noted the number of the parking space on the manifest which accompanied each automobile,6 turned the manifest over either to his foreman or to the departmental clerk; and then returned to the wax booth ready to drive another car. Several times each hour, manifests which had been turned in by the car loaders were sent by means of a pneumatic tube from the BOP shipping building which was located about 15 feet from the wire fence at the north end of the OK Parking lot, to the car distribution department, located in the main administration building of the plant. In the car distribution department nonrepresented BOP clerical employees made up loads of cars for shipment by PMT . Manifests sent from the OK Parking lot were matched with duplicate copies filed by dealer and town in the car distribution department. Normally, four cars would comprise a load, although there could be as many as six. A clerk in the car distribution department would staple together the manifests for the cars comprising a load and send the manifests by the pneumatic tube to the shipping building in the OK Parking lot. There, the manifests for a particular load were picked up by the car loaders who, by reference to the parking spaces noted thereon, drove the cars from the OK Parking lot to the' shipping building. At ' that point, the car loader raised the hood and deck lid of the car, checked the battery to make sure there was a sufficient charge, put an evacuator hose into the gas tank and, while the gas 3 See General Motors Corporation, et al., 120 NLRB 1215, 1218-1221. N.L.R.B. V. General'Motors Corporation, 373 U.S 734, 746. Also referred to In the record as "Line #7." s Also referred to in the 'record as the "Maypole " e The manifest is a, document consisting of multiple copies on which appears a descrip- tion of the automobile , a list of the various accessories or options to be installed , and the name and address of the dealer who ordered the car . The manifest accompanies the car from an early point in the assembly process to the point where the car is delivered to PMT. A copy of the manifest goes with the car when It is delivered to PMT at which time it becomes known as a car shipper or bill of lading. GENERAL MOTORS CORPORATION, ETC. 403 was being evacuated, picked up certain uninstalled accessories from the shipping building and placed them in the trunk of the car. He then reversed the lever on the gas pump to put two gallons of gasoline into the tank of the car, thereby completing his work with respect to that car. When this procedure had been completed on each of the cars comprising a load, a final check of the cars was made against the manifests by BOP plant- protection personnel and a PMT checker. If everything was in order, the cars comprising the load were accepted by the PMT checker and then PMT drivers, classified either as "yardmen" or "gatemen" by PMT, drove them through the gate into the adjacent PMT lot. Just inside the PMT side of the gate, the PMT driver handed the car shipper (manifest) to a PMT employee who put a letter or a number on it designating the aisle in the PMT lot where the cars comprising a particular load were to be parked, and then directed the PMT driver to the aisle so designated. The PMT employee at the gate retained the car shipper. Certain aisles in the PMT lot were used for parking cars which were to be shipped by haulaway truck and others for parking cars which were to be shipped by multilevel rail car. After the PMT driver had parked the car in the proper aisle, he returned to the BOP shipping building and the same process was repeated. In the meantime, the car shippers which had been retained by the PMT em- ployee just inside the gate were turned over to the PMT truck or rail dispatch- ers. The truck dispatcher allocated the haulaway loads to PMT over-the-road truckdrivers. These truckdrivers then loaded the cars comprising the load which had been assigned to them onto a haulaway truck and proceeded on their way. Similar procedure was followed by the rail dispatcher with respect to multilevel rail carloads except that the loading was performed by PMT employees classified as "loaders." At no time during the 6-month period immediately preceding the filing of the charge herein, did any of the BOP carloaders perform any loading of automo- biles onto carrier equipment or perform any other work in the PMT leased lot. B. The pertinent facts? Commencing in either February or in March 1963,8 some BOP officials dis- cussed among themselves the feasibility, especially from an economic standpoint, of changing the plant's automobile shipping method to "single car" shipping and transferring and leasing the OK Parking lot to PMT and have the latter handle all car shipments. Rumors of the contemplated change in car shipping reached the officials of the local Union during the last week in April, and on or about April 29, Sherman Kelton, the then chairman of the local union shop committee, asked Lyle Rayborne, supervisor of labor relations of the BOP plant, `If he knew anything about PMT taking over our jobs . . . in the parking lot, and I asked him what he was going to do with the 18 or 19 people that was going to lose their job ...... Rayborn replied that he did not know anything about such a move. That same day, on or about April 29, Kelton telephoned Frank James, the administrative assistant to Leonard Woodcock who is, and at that time was, vice president in charge of General Motors department of the Union and was in De- troit, and informed James that there were rumors circulating in the BOP plant to the effect that PMT was going to take over some jobs in the BOP OK Parking lot. 7In the light of my observation of the conduct and deportment at the hearing of all the persons who testified herein, and after a very careful scrutiny of the entire record, all of which has been carefully read and parts of which have been reread and rechecked several times, and being mindful of the contentions of the parties with respect to the credibility problems here involved, of the fact that in many instances testimony was given regaiding events which took place months prior to the opening of the hearing, and of the fact that very strong feelings have been generated by the circumstances of this case, coupled with the fact that it would unnecessarily protract this Decision to summarize all the testimony or to spell out fully the confusion and inconsistencies therein, the following is a composite picture of all the factual issues involved and the conclusions based thereon The patties may be assured that in reaching all resolutions, findings, and conclusions herein, the record as a whole has been carefully considered , relevant cases have been studied , aiid each con- tention advanced has been weighed, even though not specifically discussed. 8 Unless otherwise noted, all dates hereinafter mentioned refer to 1963. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about April 30, Kelton had a conversation with Bruce Buckley, the person- nel director of the BOP plant, wherein Kelton stated, to quote from Kelton's undenied and credited testimony,9 "I [understand] that the PMT was taking over our jobs, and I [wonder] what they were going to do with the 18 or 19 people they had out there. And Mr. Buckley said at that time he didn't know anything about the PMT parking lot." On May 1 James telephoned Vernon M. Schneider, director of labor relations for the entire Buick-Oldsmobile-Pontiac Assembly of General Motors and whose offices are in Detroit, Michigan,10 and inquired about the rumored elimination of jobs at the OK Parking lot. Schneider replied that he was aware that a change in car shipping at the South Gate,plant was being discussed; that if any change is made it will be similar to the changes already made at one or two other plants of Buick-Oldsmobile-Pontiac Assembly Division; and that he would make a check of the situation and advise James the next day. - Either on May 1 or May 2, Schneider telephoned from Detroit to Buckley at the South Gate plant and asked about the contemplated car shipping change. Buckley replied that a change was going to be made but no definite date had been set. On May 2 Schneider telephoned James. During the course of this approximately 10-minute conversation, Schneider stated that a change in the South Gate plant's car shipping was in the making. Thereupon, James protested such a move, taking the position that the OK Parking lot jobs belonged to members of the Union. Schneider, apparently, took the opposite stand. Thomas T. Edwards, the vice president and general manager of PMT, testified, and I find that from February 1, 1958, until December 1, 1963, he was the southern district manager of PMT with offices located in Los Angeles; that his company's business with the BOP plant came under his jurisdiction and supervision; that he was entirely familiar with the method used by BOP in delivering automobiles to PMT for shipment by PMT to dealers of General Motors; 11 that in May he at- tended a meeting between representatives of his company and officials of BOP wherein discussion was had as to the feasibility of PMT taking over the delivery jobs which then were being done jointly by BOP and PMT; and that, after consid- erable discussion, it was announced that BOP would turn over all new cars as- sembled at the South Gate plant to PMT for shipment to General Motors dealers. On May 3 the local Union's' shop committee met with representatives of BOP plant management. Kelton, the then chairman of the shop committee, brought up the question of the loss of jobs by BOP plant employees if PMT took over the OK Parking lot. He also stated that it seemed "funny" to him that management had not broached the Union about the contemplated move especially since the PMT lot employees knew about such a change and had been kidding the 18 or 19 BOP drivers about taking over the jobs of said drivers. The only response made by management was Rayborn's denial of knowing anything about the contemplated change. During the first week in May James Jackson was elected in Kelton's place as chairman of the shop committee. On or about May 8 Jackson went to Rayborn's office and, to quote from Jack- son's undenied and credited testimony,12 the following ensued: I told Mr. Rayborn it was rumored there was going to be changes in the OK Parking Lot, and that the jobs were going to be turned over to Pacific Motor Transportation Corporation, and I wanted to know if he had any information on it. And he said he didn't know anything about it; that was a rumor; or sounded like a rumor .... 6 Buckley was called as a Respondent witness but he was not questioned about this Incident. 10 Schneider's duties consist of supervising the personnel activities of the central office labor relations section ; acts as liaison between General Motors relations staff and the plant labor relations staff ; sits in on negotiations between unions , both on the national and local levels, and his employer ; assists plants in any local negotiations; and offers guidance and counsel in labor relations. u Edward's detailed description of the method used by his company and by BOP Is In sub- stantial accord with the facts as set forth above under section III, A. Edwards added, however, that BOP-PMT shipping methods had been in effect from either 1960 or 1961 until June 17, 1963. 12 Rayborn did not testify. GENERAL MOTORS CORPORATION, ETC. 405 Week after week from about May 8 until about June 4 Jackson inquired of Rayborn about the truth or falsity of the "rumored" change to be made at the OK Parking lot and each time Rayborn would deny knowing anything about such a change. At the May 10, 24, and 31 meetings between the shop committee and BOP plant officials, inquiries were made by Jackson relative to the "rumored " OK Parking lot changes On each occasion , Rayborn would either reply that he did not "have anything to report" or that he did not "have any information on it." The minutes of the June 4 management -shop committee meeting, which meet- ing, incidentally, was hurriedly called by Respondent, reads, in part, as follows: On June 4, 1963 , at a special Shop Committee Meeting Management ad- vised the Union of its tentative plans to commence "one-car shipments" to the Pacific Motor Transport Company in the near future. The Union submitted the following statement. 1. It is The Unions [sic] contention [sic] that to contract out the jobs regarding the drivers in Dept #66 is in Violation of the Local Wage Agree- ment in as much as the jobs are within the bargain unit and negotiated wage rates for these jobs - II. The Union also regard mgt. removing these jobs from the bargaining o, unit is arbratrarially [sic] abridging the Nat Agreement. JIM JACKSON, Chairman. On June 3 James telephoned John Holmes, the personnel director for all Respond- ent's Buick-Oldsmobile-Pontiac' Assembly Divisions and who was then in Doville, Georgia. After informing Holmes of his two previous conversations with Schneider and what his "understanding of those conversations were," James stated that the Union was still protesting any transfer of the work at the South Gate plant to employees of PMT; that he wanted to send Charles Burrows, an international representative to the South Gate plant to "check first hand " and make "entry and survey of the situation right on the scene ." Holmes replied that he could not send anyone to said plant until June 12, and that he would send Schneider. James stated that the June 12 date was agreeable to him. Burrows arrived at the South Gate plant at about 1 p in. on the afternoon of June 11, accompanied by Lester Learned, an international representative , and the local's then president , Harold Dunne, where they met with Buckley and Schneider. Buckley greeted Burrows and his associates by remarking to Burrows that he had not expected him until the following day,13 adding , "Well, what do you have on your mind?" When Learned replied, "We would like to get management's position on the alleged work movement anticipated in the drivers' group and we would like to have the shop committee brought in for a discussion on the matter," Buckley replied, "It [is] nearly impossible to get the shop committee due to the hour of the day [because] some of the members of the shop committee [work] on the second shift." Schneider then remarked , "[I see] no need to have the shop committee called in, as the management statement as to the elimination of jobs would only take 5 or 15 minutes , and [I see] no need for the shop committee to be brought in." Burrows then stated that the shop committee should be present "because the alleged work movement , as we understood [sic] it had a direct bearing on the welfare of the members of (the local union ), and certainly the shop committee could [sic] be brought in to bear management 's statement and air their views and have a right to bargain on this issue." The meeting, referred to immediately above, concluded with arrangements be- ing made for a meeting between management and the Union to be held at 2 30 the following afternoon , June 12, and arrangements made to allow Learned, Bur- rows, and the chairman of the shop committee to enter the plant an hour before the scheduled June 12 meeting so that Burrows could get "a geographical - outline and look at the anticipated work movement first hand." Regarding what took place at about 1 p.m. on June 12, Burrows credibly testified as follows: I went over the plant with Mr. Learned and we met Chairman Jackson and Mr Buckley, Mr Rayborne, Mr. Schneider , and on the'way to the OK lot we picked up the District Committeeman Robinson. "It was Burrows ' understanding that lie was to meet Schneider at the South Gate plant on June 1 , instead of on June 12 , as previously arranged because of some other commit- ment of Schneider. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In going to the OK lot, Mr. Buckley along with Mr . Schneider explained as to the anticipated movement of work . They showed us the fence that was being built ; that was then under construction and nearly completed, and they explained to us that the turn over point for the finished cars would be at this gate, which I would judge was 15 or 20 feet from the canopy or maypole, as you formerly discussed this with another witness. I raised the question with Mr . Schneider. I said, "What happens to this OK lot?" And he said, "We are leasing it to PMT." And I said, "It would still be your property? Only you are leasing it; you are not selling it?" And he said, "We are leasing it." I said, "Well, if it is still General Motors' property, this certainly is a deviation from this comparable situation that we had in the BOP Wilmington plant former to this." He said, "No difference." I said, "Well, on that particular situation when I called you in Detroit, you assured me" and the ultimate settlement of that one was me calling back the Wilmington local union people and telling them that through a commitment from Mr. Schneider that there would be none other than UAW bargaining unit drivers driving on plant property. He says, "There is no difference in the situation." We then walked the entire OK lot over, and went to what has been referred to as the shipping building; watched the operation, as has been formerly described by Palermo ; the removing of the . gas ; putting the gas back in; observed some repairmen , UAW repairmen doing certain repair work in the OK lot; and then we then walked to the receiving building. At about 2:30 p in . on June 12, Burrows, Learned, Jackson , Dunne, and members of the shop committee met with Schneider , Buckley, Rayborn, and other managerial representatives . The meeting opened with Jackson's remarking that the meeting was requested for the purpose of obtaining "management's position on the alleged work movement, whereby we would be losing drivers out of the OK Parking Lot." Buckley replied that the section of the OK Parking lot had been leased to PMT and that effective June 17 Respondent would be turning its finished automo- biles on a single man basis . When Burrows asked if the leasing of the parking lot would cause a reduction in the number of men in the bargaining unit, Buckley replied that the 18 Respondent employees involved would be released from the parking lot group . Burrows then inquired under what provision of the national collective-bargaining agreement between the parties, permitted Respondent to make the contemplated change. Schneider replied that management was acting by virtue of paragraph 8 of said agreement .14 Respondent was privileged to make the change unilaterally . Burrows then stated that the change did not come within the agreement, as the action did not constitute a change of method within the meaning of the phrase; that the jobs had not been eliminated but had been transferred to PMT. He cited, as an example of the job elimination pursuant to a change of method under Section 8 of the agreement , the elimination of an inspector's station on the assembly line when it decided that said job was unneces- sary. Burrows further maintained that Respondent's action with respect to its con- templated elimination of the OK Parking lot drivers ' jobs was nothing more than an erosion of the unit and was therefore in derogation of the unit for which the Union was certified. Schneider replied that Burrows was entitled to his opinion adding, "We have told you what we are going to do and you have a recourse . under the contract's grievance procedure." After a short colloquy between Buckley and Learned, the meeting concluded when Buckley remarked, "We have given you our position. I see no reason to belabor the point any longer." On June 17 Respondent leased its OK Parking lot to PMT and placed the 18 carloaders on assembly-line jobs. After a dispute had arisen over Respondent's initial placement of the carloaders , Respondent agreed to give them available 14 Paragraph 8 reads: "The right to hire ; promote , discharge or discipline for cause ; and to maintain discipline and efficiency of employees , is the sole responsibility of the Corporation except that Union members shall not be discriminated against as such In addition, the products to be manufactured, the location of plants , the schedules of produc- tion, the methods, processes and means of manufacturing are solely and exclusively the responsibility of the Corporation." ,o GENERAL MOTORS CORPORATION, ETC. 407 driving jobs and the Union agreed not to process grievances for any difference in pay between the old OK Parking lot scale and the scale of the jobs now held by the former carloaders. Since the change on June 17 Respondent delivers the finished automobile to PMT at the gate of the recently erected fence. A PMT employee drives the car into the PMT lot and parks it in any available parking space, marks the space number on the manifest and deposits the manifest at a central office. There the manifests are assembled into loads and returned to PMT parking lot em- ployees. Then the automobiles are extracted from the OK Parking lot and driven to the haul-away truck trailer or to a railroad car and loaded. C. Concluding findings It is undisputed that the Union was, during all times material, the statutory collective-bargaining representative of the employees here involved. It thus follows that any change by Respondent in the terms and conditions of employment of those employees without prior notice to or consultation with the Union con- stitutes a refusal to bargain within the meaning of Section 8(a)(5) and (1) of the Act. Respondent takes the position that the determination to unilaterally lease part of its property to PMT and to enter into a contract with PMT whereby employees of PMT would perform certain operations which Respondent's employees had been doing prior to the aforesaid leasing and contracting was not violative of the Act because (1) such acts and conduct were a matter of managerial prerogatives; (2) under the provisions of the national collective-bargaining agreement between the parties Respondent was privileged to unilaterally make such a lease and contract; and (3) the Union, if it felt aggrieved by the aforesaid acts and conduct of Respondent, should have,invoked the grievance procedure of the aforementioned bargaining agreement instead of filing the charge herein. As to (1), controlling law is basically as the Tenth Circuit pointed out in N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17, regarding a case very similar to the instant one: The contention is also made that the respondent did not deny the Union the right to bargain concerning the terms and conditions of employment in violation of Section 8(a)(5). The unassailed facts are, however, to the con- trary. While the Union appears to have had some intimation of the impend- ing Anderson-Rooney contract, it was not until the morning of the effective date of the contract that the Union learned it had been consummated. And this information was obtained through the employees not the employer. Under no stretch of the imagination can it be said that these circumstances gave the Union a fair opportunity to bargain with respondent about not subcontract- ing the work, or with Anderson-Rooney concerning the conditions of the new employment. This is not to say that the Union must first approve before an employer may contract out work, but it is to say that reasonable notice and a chance to bargain must be afforded before an employer enters into a contract affecting the hire or tenure of its Union workers' employment. This is so because "Such unilateral action minimizes the influence of organized bargain- ing. It interferes with the right of self-organization by emphasizing to the employees that there is no necessity for a collective bargaining agent." May Dept. Stores, v. N.L.R.B., 326 U.S. 376, 385. See also N.L.R.B. v. Crompton- Highland Mills, 337 U.S. 217; N.L.R.B. v. Burton-Dixie Corp., 210 F. 2d 199. As to (2), I am not unmindful of the fact that a labor organization may waive the statutory rights granted to it and to the employees it represents, but the Board has said that it will not lightly infer such a waiver. The waiver, the Board said, must be in clear and unmistakable terms. Tide Water Associated Oil Company, 85 NLRB 1096; Hekman Furniture Company, 101 NLRB 631. The "change of method" phrase in paragraph 8 of the national collective-bar- gaining contract does not spell out a waiver of negotiations over Respondent's decision to transfer its intermediate storage function to PMT. Though there was much dispute over whether to.call the transaction "subcontracting" or "job elimina- tion," the facts are not in dispute. PMT employees now maintain an intermediate storage area involving the parking of cars and the assembling of the automobiles for loading after nonunit employees have grouped the manifests into appropriate loads. That function was performed by Respondent's 18 drivers before June 17. That this was a simple transfer of functions to PMT employees is not altered or ob- scured by the elimination, which accompanied the transfer, of some functions 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously performed by PMT employees, and some previously performed by Re- spondent's 18 driver employees . If, by some legal legerdemain one chooses to call this transfer of functions "subcontracting" or some kind of "change," it is not a mere "job elimination" pursuant to a "change of method" as provided for by Section 8 of the agreement-and that section cannot be construed as a waiver over bargaining about such change in clear and unmistakable terms. Tide Water Associated Oil Company , supra. Paragraph 225 15 of the agreement which waives the making of contract propo- sals does not clearly and unmistakably waive bargaining about the application and implementation of the agreement which is a continuing duty. Rapid Roller Co., 33 NLRB 557 , 587, 590, enfd. in part and remanded in part; Rapid Roller Co. v N.L.R.B., 126 F. 2d 452, 459-460 (CA. 7) cert. denied, 317 U.S. 650 . In other words, whether the Union waived its right to make proposals and negotiate on the general subject of subcontracting is not herein in issue. What is in issue is the Union's right to negotiate on a specific decision to transfer the OK Parking lot drivers' functions to another employer and the above contract clause does not waive that right . Square D Company, 142 NLRB 332. As to ( 3), the grievance procedure does not constitute a waiver or bar of any sort. Hekman Furniture Company, supra . The grievance procedure and arbitra- tion is not the proper forum in which to determine what constitutes a waiver of rights established by the Act . Further, the processing of a grievance , after the fact, is not an adequate substitute for full and open negotiations prior to the final decision and effectuation of the charge . It is this factor of anticipatory negotia- tion that the Board emphasized in Town & Country 16 and Fibreboard 17 decisions as being necessary for meaningful collective bargaining.1S Furthermore, the credited evidence, as epitomized above, clearly discloses that Respondent made all available efforts to conceal from the Union the impending move to lease the OK Parking lot to PMT and to contract with that concern to have its employees perform the very work then being performed by Respondent's employees. Whenever the local union representatives sought to ascertain the truth or falsity of the rumors that Respondent intended to abandon its OK Parking lot operations , they were refused any and all information , thus not affording the Union an opportunity to exercise its statutory right of bargaining. I find, upon the entire record in the case, that Respondent did not bargain with the Union as the statutory representative of its employees in the appropriate unit and thus has engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act. I further find , that by the foregoing, Respondent has inter- fered with, restrained , and coerced its respective employees in the exercise of the rights guaranteed by Section 7 of the Act, within the meaning of Section 8(a)(1) thereof. 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 business operations of Respondent as described in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and commerce m Paragraph 225 reads , "The parties acknowledge that during the negotiations which re- sulted in this Agreement , each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining , and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this agreement Therefore , the Corporation and the Union , for the life of this agreement , each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to bargain collectively with respect to any subject or matter referred to, or covered in this agreement , or with respect to any subject or matter not specifically referred to or covered in this Agreement , even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time that they nego- tiated or signed this Agreement 16 Town & Country Mfq Co Inc , 136 NLRB 1022 17 Fibreboard Paper Products, 13'8 NLRB 550. 1s See, Adams Datiry, Inc, 137 NLRB 815; The Renton News Record, 136 NLRB 1294 ; American Manufacturing Company of Texas , 139 NLRB 815 ; Hawaii Meat Company, Limited, 139 NLRB 966 , Esti Neiderman and Gszela Eisner, co-partners doing business as Star Baby Co., 140 NLRB 678; Brown Transport Corp , 140 NLRB 954 ; National Food Stores, Inc, 142 NLRB 340, and Northwestern Publishing Company, 144 NLRB 1069 GENERAL MOTORS CORPORATION, ETC. 409 among the several States and, such of them as have been 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)(5) and (1) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent failed and refused to fulfill its statutory bargain- ing obligations within the meaning of Section 8(a)(5) and (1) of the Act when, without prior notice to or consultation with the Union it leased its OK Parking lot to PMT and contracted with that firm to have its employees perform the work which Respondent's 18 drivers performed before the execution of the aforesaid lease and contract was violative of the Act, I will recommend that Respondent be ordered to bargain with the Union respecting such leasing and contracting. Having also found that Respondent transferred the aforementioned men to other jobs without prior notice to or consultation with their statutory collective-bargaining representa- tive, I will recommend that Respondent be ordered and directed to take appropriate steps to reinstate the aforementioned 18 men by resuming operations of its OK Parking lot and assign said 18 men to the jobs each held prior to June 17, 1963, at the same wages and working conditions, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of earnings. It is important to note in this connection that an order reinstating the aforesaid 18 employees by Respondent and making them whole for loss of earnings is warrant- ed on the basis of the 8(a)(5) violations of the Act found above. The transfer of employees to less desirable jobs, and in some instances at less pay, flowed directly from Respondent's unilateral action.19 In order, therefore, to adapt the remedy to the situation which calls for redress and to give substance to the remedial order to bargain, it is necessary to restore the status quo ante without which effective bargaining in behalf of the 18 employees here involved cannot be conduct- ed. The broad remedial powers vested in the Board by the Act afford ample authority in the Board to order Respondent to reinstate said 18 parking lot drivers to the jobs they held immediately prior to June 17, and to give them backpay, with interest at the rate of 6-percent per annum, where deprivation of employment status is a consequence of a Section 8(a)(5) violation. Backpay and interest to be computed and paid in accordance and in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 and in Isis Plumbing & Heating Co., 138 NLRB 716. The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure Respondent's employees of their full rights guaranteed them by the Act, it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of their rights to self-organization. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and during all times material has been , an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, is, and during all times ma- terial has been, a labor organization within the meaning of Section 2(5) of the Act. 19 The record clearly establishes, and I find, that the leasing of the OK Parking lot and contracting with PMT to have its employees perform the work previously performed by Respondent's parking lot employees took place prior to any notice to or consultation with the Union. The fact that Respondent met on June 11 and 12 with representatives of that labor organization and there announced that it had leased its OK Parking lot to PMT and had contracted with that company, to have its employees perform the work Respondent's 18 parking lot drivers were then performing, did not fulfill its obligation within the mean- ing of Section 8(a) (5) of the Act. National Food Stores, eupra; Mayer B. Cohen, Bernard Cohen and Peary Cohen d/b/a Riverside Wholesale Distributors, 142 NLRB 580, Central Illinoss PaSize Service Company, 139 NLRB 1407. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. All employees covered by the national collective-bargaining agreement be- tween the Union and Respondent , dated September 20, 1961 , constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has represented a majority of Respondent's employees in the appropriate unit, and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all employees in said unit for the purposes of collective bargaining with respect to grievances , rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing to answer all pertinent inquiries from April 29, to June 3, 1963, of the Union's shop committee about its intention to transfer its OK Parking lot operation to PMT, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By unilaterally discontinuing and transferring its OK Parking lot operations to PMT on June 17, 1963, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) and (5) of the Act. 7. By refusing to discuss and negotiate with the Union on June 11 and 12, 1963, its intention to discontinue and transfer its OK Parking lot operations, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 8. The aforesaid acts are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Peggy E. Hiroskey d/b/a Logan Dairy Company and Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases Nos. 9-CA-3100 and 9-CA-3155. October 30, 1964 DECISION AND ORDER On July 21, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that it would not effectuate the policies of the Act for the Board to exercise jurisdic- tion in these cases and recommending that the complaints be dis- missed in their entirety, as set forth in the attached Decision. There- after, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 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 Trial Examiner's Decision and the entire record in these cases, including the General Counsel's and the Charging Party's exceptions and 149 NLRB No. 33.