Consolidated Foods Corp.

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consolidated Foods Corporation and International Union of District 50, Allied and Technical Work- ers of the United States and Canada.' Case 14-CA-5333 June 22, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On March 19, 1970 , Trial Examiner Sidney Sher- man issued his Decision in the above -entitled proceeding, as amended by an errata issued on March 25, 1970, finding that Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 brief, and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner, only to the extent that they are consistent with this Decision and Order. The Trial Examiner found that Respondent vio- lated Section 8(a)(5) and (1) of the Act by uni- laterally transferring driving operations from its Ashley plant to-its Centralia plant, and by engaging in direct discussions-with the affected Ashley em- ployees. Respondent excepts, contending , inter alia, that District 50, by virtue of article XVIII of the ap- plicable collective-bargaining agreement , waived its right to prior consultation and bargaining over management decisions resulting in the interplant transfer of jobs. We find merit in the Respondent's position. Since 1966, Respondent has operated candy manufacturing plants at Ashley and Centralia, Il- linois. The plants are located 16 miles apart and both were acquired by purchase from another ' The name of the Charging Party, formerly International Union of Dis- tnct 50, United Mine Workers of America, appears as amended pursuant to an amendment of its constitution on April 9, 1970. The Charging Party is hereinafter called District 50 2 It appears that the jobs of Curtis and Links were transferred in 1966 from Centralia to Ashley for the purpose of avoiding the consequences of a candy manufacturer. At Ashley, Respondent as- sumed a 3-year collective-bargaining agreement negotiated between its predecessor and District 50, as exclusive representative of employees at the Ashley location. The events here in issue arose dur- ing the term of that agreement, which included the following, as article XVIII: The Employer shall have the exclusive right to at all times , change, modify or cease its opera- tion, processes , or production , in its discretion, and in the event of such changes, modifications or cessation of operations , processes or production, the Employer shall be the sole judge of all factors involved including (but not limited to) the efficiency, usefulness and prac- ticability of machinery, processes, location of business and personnel . The Union will not in- terfere in any way with the sales policies of the Employer or with its source of raw materials, equipment, supplies, power or other articles required by the Employer in its unlimited dis- cretion. At the Centralia plant, employees, pursuant to Board certification, since 1966 have been represented by the Teamsters Union. With the ex- ception of truckdrivers Curtis and Links, who were assigned to the Ashley plant , Respondent's trucking operations were historically headquartered at Cen- tralia? In the summer of 1969 , Respondent, for economic reasons, began eliminating driving opera- tions manned by Centralia drivers . In addition, in September of that year Respondent decided to transfer the runs of Curtis and Links from Ashley to Centralia. The Respondent notified Curtis and Links, in separate interviews , that their jobs were being transferred and offered them a choice of production work at either Ashley or Centralia. Both elected to remain at Ashley and were assigned to classifications calling for a reduced rate of pay. Dis- trict 50 was not consulted in connection with the decision to transfer the jobs, nor was it 'invited to participate in Respondent 's discussions with Curtis and Links as to the impact of said decision. Ac- cordingly , prior to filing the instant charges, Dis- trict 50 filed grievances with respect to Respon- dent's action, which it pursued through the final step preceding arbitration.3 On the above facts, contrary to the Trial Ex- aminer, we find that Respondent's course of action in transferring the Ashley driving operations to Centralia and the consequential reduction of Curtis picket line established at Centralia pursuant to a labor dispute with the Teamsters Union ' Curtis' former route was eliminated for economic reasons shortly after it was transferred . Links' former route is scheduled for termination in June 1970. 183 NLRB No. 78 CONSOLIDATED FOODS CORPORATION and Links "did not contravene the statutory man- date that it bargain about matters effecting changes in the terms and conditions of employment of its employees."4 Article XVIII of the collective-bar- gaining agreement in effect at Ashley when Respondent decided to take the action complained of afforded the Respondent "the exclusive right" to "change, modify or cease its operation, processes, or production, in its discretion ...." The applica- ble provisions also provide that "the Employer shall ,be the sole judge of all factors involved including . . . location of business and personnel." In our opinion, these clauses, in clear terms, afforded Respondent the right unilaterally to "change, modi- fy or cease ... operation" by transferring the driv- ing function to the Centralia plant. In effect, Dis- trict 50 had bargained during basic contract negotiations about the manner in which such deci- sions were to be made subsequently during the term of the collective-bargaining agreement and had agreed that the Respondent could act exclusively with respect to the subject matter of this proceed- ing.5 As Respondent acted strictly within the con- fines of the management prerogatives clause, we find that it did not violate the Act in transferring the driving operations without first notifying and bargaining with the Union . Having so found, we also conclude, in the particular circumstances of this case , that Respondent did not violate Section 8(a)(5) and (I) of the Act by discussing the effects of the transfer with Curtis and Links, the affected employees. Accordingly, we shall dismiss the com- plaint in its entirety.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be , and it hereby is, dismissed in its entirety. MEMBER BROWN, concurring: The matters considered in this proceeding, in my opinion , should be disposed of by the parties within the framework of the grievance and arbitration provisions of their current bargaining agreement. There is no suggestion that the changes which are the subject of the instant charge were other than economically motivated. There is disagreement on whether some of the changes were within the scope of the management rights provision and whether prior notice , before their implementation, was either required or adequate . Before filing the in- stant unfair labor practice charges, said disagree- ment was made the subject of a grievance action 833 pursued through all steps of the contract's grievance procedure short of arbitration. In these circumstances, it would best effectuate statutory policies for the instant dispute to be resolved within the forum the parties have them- selves established through mutual agreement for resolution of their differences. Accordingly, I would dismiss the complaint without deciding the merits of the controversy. ' Ador Corporation , 150 NLRB 1658, 1660 S Id, see also Marion Simcox, Trustee of Wagner Shipyard and Marina, Inc , 178 NLRB 516 In our opinion , Weltromc Company, 173 NLRB 235 , enfd 419 F 2d 1 120 (C A 6), is distinguishable There , the Board , in finding that the union had not negotiated away its right to bargain about interunit job trans- fers, was confronted with a clause which, while reflecting the union 's agree- ment that the employer was responsible for general management of the business, included no language expressing union assent to management's right to unilaterally make business decisions having an adverse impact on unit employees Thus, unlike the instant case, the clause in issue there was devoid of language investing management with "exclusive" or "sole" dis- cretion as to changes in mandatory subjects of collective bargaining. Nor did the Weltromc contract provisions have the scope of the instant one, which gives Respondent exclusive right at all times to "change , modify or cease its operation , processes, or production " Additionally , that contract involved another clause protecting employees against the effects of job eliminations and transfers , and such a restriction, not present here, was viewed as significant to the finding that the union in Weltromc had not waived its right to be consulted about the transfer of work from one plant to another TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner : Copy of the instant charge was served upon Respondent, Con- solidated Foods Corporation,' on October 16, 1969,2 the complaint issued on December 5, and the case was heard on January 27, 1970. The sole issue litigated was whether Respondent violated Section 8(a)(5) and (1) of the Act in connection with the reassignment of certain trucking opera- tions. After the hearing, briefs were filed by the General Counsel and Respondent. Upon the entire record,3 including observation of the witnesses ' demeanor, the following findings and conclusions are adopted: 1. JURISDICTION Consolidated Foods Corporation is a corporation under Maryland law and operates a number of plants throughout the United States, including the two plants involved in this proceeding at Centralia and Ashley, Illinois, where Respondent is engaged Respondent's name appears as amended at the hearing ' All dates are in 1969 unless otherwise stated ' For corrections of the transcript, see the order of February 16, 1970. General Counsel's objection to certain testimony, as to which ruling was reserved at page 127 , line 2, of the transcript, is hereby overruled After the hearing, the Respondent and the General Counsel submitted a stipulation , which has been marked as TX Exh. I and is hereby received in evidence 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the manufacture of candy. Respondent annually ships from its Illinois plants to out-of-state customers products valued at more than $50,000. Respondent is engaged in commerce under the Act. II. THE UNION International Union of District 50, United Mine Workers of America, hereinafter called District 50, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The only issue raised by the pleadings is whether Respondent violated Section 8(a)(5) and (1) of the Act by transferring certain trucking operations from its Ashley drivers to its Centralia drivers without consulting District 50, and by bargaining directly with employees about the effect of such change. A. Sequence of Events Respondent has since 1966 operated, as part of its Hollywood Brands division, a candy manufactur- ing plant at Centralia, Illinois, and another at Ashley, Illinois, which is 16 miles south of Cen- tralia. Respondent purchased both plants in December 1966 from separate corporations,4 and in doing so assumed, with respect to the Ashley plant, the obligations of a 3-year contract that had recently been executed by its predecessor at Ashley and District 50.5 Article XVIII of that contract vested in the employer "the exclusive right to .. . change, modify or cease its operation, processes, or production, in its discretion," and provided that in case of such change the employer would be "the sole judge of all factors involved including (but not limited to) the efficiency, usefulness and practica- bility of machinery, processes, location of business and personnel." Curtis was hired as a truckdriver by Respondent's predecessor at Ashley in 1951 and Links was hired by such predecessor in September 1966, and it was agreed that they were in September 1969 on the Ashley payroll and covered by the Ashley contract as members of the Ashley bargaining unit. They have been the only drivers in that unit. At Centralia, the Board in March 1966 certified a Teamsters local as the representative of all the employees, including nine drivers. After unsuccess- fully contesting the certification in the courts, "Respondent in March 1969 executed a contract with that local. Pursuant to its contracts with Team- sters and District 50, Respondent has maintained separate seniority lists for its Ashley drivers and its Centralia drivers. In the summer of 1969 Respon- dent began, for economic reasons, to eliminate the 4 Both corporations were commonly owned ' See TX Exh 1, which contains a stipulation that such assumption gave runs theretofore manned by its Centralia drivers, a process which was completed in December. Late in September Respondent notified Curtis and Links, in separate interviews, that they would be replaced as drivers by Centralia employees, and offered them a choice between production work in Ashley or Centralia. Both elected to remain in Ashley and were assigned to work there as laborers at a reduction in pay. Links was replaced by a Cen- tralia driver, who was still so employed at the time of the hearing. Curtis was also replaced by a Cen- tralia driver but his former route was shortly thereafter eliminated for economic reasons. On September 29, District 50 filed grievances on be- half of both men, which were processed up to, but not including, arbitration, and which were still pending at the time of the instant hearing. Admittedly, District 50 was not given prior notice by Respondent of the change effected in the status of Curtis and Links nor did it have any op- portunity to participate in the September interviews described above between management and the two drivers. B. Discussion The General Counsel contends that Respondent violated the Act by the foregoing unilateral replace- ment of Links and Curtis as drivers and by the direct discussions with them of the employment op- portunities available to them after they ceased driv- ing. It is the General Counsel's view that there was here an elimination of unit work at Ashley, and that Respondent was required by the Act to consult with District 50 before taking such action. Basically, the General Counsel relies on the duty to bargain about elimination of unit work established by Fibreboard6 and related cases. Respondent counters that (a) by article XVIII of its contract, quoted above, District 50 waived its right to bargain about the action taken here, (b) Fibreboard does not apply, in any event, because no employee suffered any significant detriment, (c) Respondent's discussion of the grievances filed on behalf of the two men cured any prior dereliction on its part, and (d) its direct con- sultation with the two men about their future em- ployment did not constitute individual bargaining. 1. The waiver issue In Fibreboard the Court upheld the Board's find- ing of a violation of Section 8(a)(5) and (1) based on a unilateral subcontracting of all the work in the bargaining unit , which necessitated discharge of all the employees therein. The Court agreed with the Board that the matter of contracting out unit work was a mandatory subject of collective bargaining. rise to a binding contract between Respondent and District 50 ' Fibreboard Paper Products Corp v N L R B 379 U S 203 CONSOLIDATED FOODS CORPORATION The Board has applied Fibreboard to cases involv- ing, inter alia, the transfer of work from one plant to another.' At the same time, the Board has recog- nized that, by appropriate contract language, a union may waive the right to bargain about elimina- tion of unit work," but has required that such waiver be clear and unequivocal," as in the case of any waiver of a statutory right.10 Respondent contends that such a waiver is con- tained in article XVIII of its contract with District 50 which, as noted above, reserves to it the "exclu- sive right" to change or cease performing "its operations, processes or production." In opposing this contention, the General Counsel relies mainly on Weltronic, supra, where the Board affirmed a Trial Examiner's finding that a manage- ment rights clause was not a clear and unequivocal waiver of the union's right to bargain about a transfer of unit work to a neighboring plant of the employer. That clause, in pertinent part, recognized the right of management to "discontinue jobs ... determine ... the location of plants."" Respon- dent, in turn, relies on the cases cited in footnote 8, above. In General Motors, the contract reserved to the employer the "sole responsibility" for decisions concerning "the methods, processes and means of manufacturing," and stipulated that the "transfer- ring of employees is the sole responsibility of management." There, the employer unilaterally discontinued certain work relating to the prepara- tion for shipment of automobiles after they left the assembly line, but did discuss with the bargaining representative of the employees performing that work how to alleviate their situation, and reached an agreement to transfer them to other work in the same unit. In finding no violation, the Board relied not only on the foregoing contract language, which it deemed to be a waiver of the union's right to bar- gain about the curtailment of unit work, but also on the finding that the change in operations resulted in no significant detriment to the employees in the unit. In reversing the Board, the court of appeals disagreed on both issues. In Ador, supra, the Board, reversing the Trial Examiner, found no violation in a unilateral discontinuance of part of the em- ployer's operations, which resulted in the layoff of 10 employees. The Board relied on a clause reserv- ing to management the exclusive right to "abolish existing jobs, increase or decrease the number of jobs ...... Likewise, in Simcox, supra, in finding no r E g, Weltronic Company, 173 NLRB 235, enfd 419 F 2d 1 120 (C A 6), Acme Industrial Products, Inc, 180 NLRB 114, Plymouth Industries, Inc, 177 NLRB 607 ° Ador Corporation, 150 NLRB 1658, General Motors Corporation , Buick- Oldsmobile-Pontiac Assembly Div, 149 NLRB 1596, 158 NLRB 229, reversed sub nom Intl Union, UAW v N L R B , 381 F 2d 265 (C A D C ), cert denied 389 U S 857, Marion Simcox, 178 NLRB 516 ° Weltronic Company, supra. 10 See Intl Union, UAWv N L R B, 381 F.2d 265 (C A.D C ), and cases there cited. 11 The General Counsel also cites certain evidence that at the time the in- stant contract was negotiated there was no "detailed discussion " between 835 violation in a unilateral plant shutdown, the Board relied on a clause which reserved to management the exclusive prerogative of determining "the ex- tent to which the locations covered by this agree- ment shall operate or be shutdown ...." In attempting to reconcile the foregoing cases, one is struck by the fact that Weltronic was the only one that involved a transfer of unit work to em- ployees outside the unit, as distinguished from the situation in the other three cases, where the em- ployer divested itself entirely of the work. Absent any other explanation, the inference is warranted that in Weltronic the Board did not regard the em- powering of management unilaterally to "discon- tinue jobs" as clearly and unequivocally authorizing the unilateral decision to continue to perform the same work but with nonunit personnel. It becomes relevant to consider therefore in what respect, if any, the instant case differs from Wel- tronic. Here, article XVIII refers not only to the cessation of "operations, processes or production," but also to any change or modification therein (and purports to preclude District 50 from questioning Respondent's judgment with regard to any of the factors entering into its decision to effect such change, including "location of business and person- nel"). In its brief, Respondent argues that this is a clear and unequivocal waiver of District 50's right to be consulted about the action here taken, because it constituted a change in "operations, processes or production." In support of this conten- tion Respondent cites various changes in operations and production processes which allegedly caused Respondent to assign to Centralia drivers the duties of Links and Curtis. Thus, Respondent points to the fact that in September 1969 there was a curtail- ment of Respondent's overall driving operations, because of a decision by Respondent to ship out of Centralia by rail rather than by truck ,12 and a deci- sion to use a milk powder instead of the whole milk being transported by Curtis from Nashville. How- ever, this mistakes the issue, which is not whether Respondent was required to bargain about its deci- sion to abandon over-the-road truck shipments nor about the substitution of milk powder for whole milk but whether it was required to bargain about the action here complained of by District 50- name)y, the reduction of unit work at Ashley, which allegedly resulted from those other decisions. Respondent's brief continues that, in connection with such other decisions, there was an "ancillary District 50 and Respondent of article XVIII. In this connection the General Counsel relies on cases like Rockwell-Standard Corporation, 166 NLRB 124, holding that so-called "zipper clauses" do not constitute a waiver of the right to bargain about a particular subject not covered by the contract, unless that subject was "fully discussed" or "consciously explored" at the time the contract was negotiated However , we are not dealing here with anything as broad and amorphous as a zipper clause but with a clause that delineates in some detail the particular area that is reserved to management prerogative Accordingly, I do not regard such cases as apposite 11 Theretofore, Centralia drivers had been engaged for the most part in long over-the-road hauls 427-258 O-LT - 74 - 54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision ... to consolidate all remaining trucking at Centralia" by transferring to that point all the trucks operated by Ashley personnel. This seems to imply that such consolidation in itself constituted a change in, if not a cessation of, operations. How- ever, the record does not support such a conclu- sion . In the case of Links, it was conceded at the hearing that the same route is being covered by his replacement as had been served by Links; the only difference being that instead of carrying supplies both ways between Ashley and Centralia, as Links formerly did, his replacement carries them only from Ashley to Centralia. The evident import of this is that, instead of returning from Centralia to Ashley with a load, the truck returns empty. If such difference be deemed to constitute a change in operations, it might well be that Respondent was not required to bargain about the decision not to load the truck at Centralia. However, what is com- plained of here is not the failure to load there,13 but the assignment to one outside the Ashley unit of Links' old job of driving between Ashley and Cen- tralia. In the case of Curtis, his primary job had been to deliver milk from Nashville to Centralia and Ashley. He had also made runs a few times a week from Nashville to Pana, about 30 miles north of Centralia. The record shows that after Curtis was told, on September 26, of the decision to replace him with a Centralia driver, he spent the next week on his route familiarizing his replacement, Hester, with his new duties; that for about 2 weeks thereafter Hester continued to operate on Curtis' old route from Nashville to Ashley, but made no milk deliveries to the Centralia plant because it had already begun to use the aforementioned milk sub- stitute; that, when in the latter part of October, the Ashley plant also adopted the milk substitute, Hester began to make deliveries only from Nash- ville to Pana, about 30 miles north of Centralia, where a customer had been found for the whole milk no longer needed by Respondent; and that even these deliveries ceased about November 15 when the Nashville facility was sold by Respondent. It is thus clear that there was some alteration of the work formerly done by Curtis, at least insofar as there was a discontinuance of deliveries from Nash- ville to Centralia, and it seems that Respondent would be on sound ground in maintaining that such alteration was a change in operations, and that the eventual discontinuance of the route on November 15 was a cessation of operations under article XVIII. However, here again the issue is not whether the modification in the route or the eventual discontinuance thereof was a mandatory subject for bargaining , but whether the decision on September 26 to assign to a Centralia driver any part of Curtis' former duties was such a subject. 19 It appears from Links' uncontradicted testimony that the loading operation at Centralia was not even one of his duties " For personal reasons, it was more convenient for him to drop the truck Thus, it is clear that, in "consolidating" its driv- ing operations at Centralia, Respondent continued unchanged all of Links' old route and part of Cur- tis' old route, and there is nothing in the record to show what else such consolidation involved. As to supervision , it is proper to infer that there was no change in the immediate supervision of the driving operations formerly performed by Links and Curtis, since the record shows in that regard only that such supervision had emanated from Centralia even be- fore September 1969. As for the garaging of the trucks, it was not shown in what respect there was any change. Even if it be assumed that after Sep- tember they were parked overnight at Centralia, that had always been true of Links' truck. to Respondent's brief asserts that maintenance costs were reduced by the new arrangement. However, in this regard the record shows only that all main- tenance work on the two trucks had always been performed at Centralia. Moreover, the fact that in March 1966 Curtis had admittedly been transferred from the Centralia payroll to the Ashley payroll, without any change in duties, solely to avoid the disruptive effect of a Teamsters picket line at Cen- tralia,15 is a further indication that from a purely operational standpoint it was normally a matter of indifference to Respondent whether the Nashville- Ashley-Centralia run was served by an Ashley or Centralia driver. If anything more were needed on this score, it should suffice to note that there was no contradiction of the testimony of a District 50 representative that, in discussing the grievances filed on behalf of Links and Curtis, Respondent's industrial relations director asserted that there was involved here "simply a jurisdictional matter between two labor organizations." Under all the circumstances, it is concluded that, insofar as there was involved here the transfer to Centralia employees of the same work as had for- merly been done by Ashley employees, the situa- tion is comparable to that which existed in Wel- tronic , where work formerly performed in one plant was assigned to employees in a nearby plant. As al- ready related, the Board there held, in effect, that such transfer was not clearly and unequivocally covered by a union 's waiver of bargaining with respect to discontinuance of jobs. So, here, it is found that the reference in article XVIII to cessa- tion of operations did not clearly and unequivocally authorize the unilateral transfer to employees out- side the bargaining unit of the same work as had theretofore been performed by Links cr Curtis. It is further concluded that, while Respondent, was authorized unilaterally to change the content of their jobs, and did effect such change, at least in- sofar as it reduced Curtis' former route, such authorization did not clearly and unequivocally waive District 50's right to be consulted about the off at Centralia rather than at Ashley " Respondent's brief asserts that this was also why Links was hired at Ashley, later in 1966, rather than at Centralia CONSOLIDATED FOODS CORPORATION assignment of such reduced route to a Centralia driver.16 In sum , insofar as the routes remained the same, and the only change was in the identity and bar- gaining unit of the driver, it is not at all clear that there was involved here such a change in , let alone cessation of, operations as is authorized by article XVIII. It is therefore found that the replacement of the Ashley drivers involved the elimination of unit work and that there was no effective waiver of Dis- trict 50's statutory right to advance consultation about such action.17 2. The "no-detriment" issue The Board has indicated a disinclination to find a violation in unilateral elimination of unit work, if there was no resulting significant detriment to the members of the unit."' Respondent contends there was no such detriment here, because all that was in- volved was a change in the duties of 2 members of the 350-man unit at Ashley. However, Curtis testified that as a result of his transfer to laboring work he lost about $100 a week.19 While there was some evidence indicating that Links' weekly loss of earnings was less than his estimate of $12 to $20 per week '20 it is clear that, considering the total im- pact on both men, the effect on their earnings was 18 Since article XVIII lists the "location of business and personnel" as among the elements that might enter into a unilateral decision to change or terminate operations , it might be inferred that the change in operations contemplated by article XVIII included a change in the mere location of an operation or of those engaged therein Even so, it should be apparent from what has already been said that here there was no change in the geographic location of the hauling operations formerly performed by Curtis and Links, since their replacements were not assigned any new areas to cover, but traversed only part or all of the old routes of Links and Curtis Nor was there any relocation of personnel , since the old drivers remained at Ashley and their replacements continued on the Centralia payroll " Article Ill of the contract reads in pertinent part "The direction of the work and the selection, retention , promotion , and transfer of the em- ployees shall be with the employer " While this article was cited at the hearing, Respondent does not allude thereto in its brief At any rate, while it might well be deemed to have authorized Respondent to transfer Curtis and Links from driving to laboring work at Ashley, without advance con- sultation of District 50, that article would not affect Respondent 's duty to bargain about the action which necessitated that transfer-namely, the as- signment of their routes to Centralia drivers For, even if construed as authorizing transfers of employees into or out of the unit , that article clearly would not apply to transfers of work to persons outside the unit '° See, e g., Westinghouse Electric Corporation ( Mansfield Plant), 150 NLRB 1574, 1576; Kennecott Copper Corporation (Chino Mines Div), 148 NLRB 1653, 1654 1B Although Curtis' route was finally abolished altogether about November 15, for reasons indicated below his loss of earnings must be deemed to have continued up to the present time 20 Shop Steward Chandler testified that Links was reduced to a rate of $2 38 per hour from a rate of $2 47 per hour, which would amount to a $4 reduction in a 40-hour week " Respondent points to the Board 's finding in General Motors Corpora- tion , 158 NLRB 229 , 233, that there was no significant detriment, even though the pay rates of the six employees were reduced However, it ap- pears from the Board 's opinion in that case, that , in finding no significant detriment as a result of the unilateral action , the Board relied on the fact that the six employees displaced thereby were initially assigned to other jobs within the unit at the same rate of pay, and the subsequent reduction in 837 not insubstantial . Accordingly, no merit is found in the instant contention.21 3. The grievance discussions Respondent cites its willingness to meet with Dis- trict 50 and discuss the instant matter "within the framework of the grievance procedure ," and the record shows , as noted above , that Respondent did meet and confer with District 50 concerning the Curtis' and Links ' grievances at all four steps of the grievance procedure . However, such discussions after the fact did not cure Respondent 's breach of its statutory obligation to consult with District 50 before it had reached any final decision about the transfer of the unit work to Centralia drivers.22 Ob- viously, a union is in a better position to dissuade an employer from taking particular action before he has publicly committed himself thereto . Recog- nition of this is implicit in the Board 's usual remedi- al provision in cases of this sort, which is to require not only that the employer bargain in the future with the union about the particular action found unlawful, but also that , pending bargaining, such action be rescinded and the parties be restored to the status quo ante.23 It follows that by the unilateral replacement of the Ashley drivers with nonunit drivers Respondent violated Section 8(a)(5) and ( 1) of the Act. pay (by 5 cents per hour ) was the result of a settlement negotiated with the Union The Board concluded from this that the reduction in pay was not at- tributable to the unilateral action " In Weltronic Company, supra , the Board found a violation not- withstanding respondent 's discussion of a grievance concerning its action Cf Union Carbide Corporation , 178 NLRB 504, where, in finding no viola- tion in unilateral subcontracting of unit work , the Trial Examiner relied, inter alia, on the fact that the unilateral action had been the subject of grievance discussions However, in view of the multiplicity of other factors relied on by the Trial Examiner, and the failure of the Board Members to explicate their rationale more fully, I do not regard that case as overruling Weltronic on the particular point under consideration (While Member Brown , in his concurring opinion in Union Carbide, which Member Zagoria adopted as a secondary ground for affirmance , cited the grievance discus- sions, he did not conclude therefrom that such discussions cured the absence of advance consultation with the union , but only that such discus- sion, among other things, warranted remitting the parties to the arbitration provision of their contract As to the appropriateness of arbitration here, see the discussion, below ) " While Respondent does not expressly say so, the fact that the contrac- tual grievance procedure terminates in arbitration suggests that the resolu- tion of the instant dispute should be left to the arbitral process, and, it is this Examiner 's personal view, as expressed at the hearing , that the subject matter of the instant dispute is an appropriate one for arbitration How- ever, the policy of at least a majority of the Board Members against refer- ring parties before the Board to arbitration under circumstances such as those here involved seems well established The reasons therefor were ar- ticulated in Unit Drop Forge Division Eaton Yale & Towne, Inc, 171 NLRB 600, where, in refusing to remit the parties to their contractual grievance- arbitration procedure , the Board majority cited its competence to decide the issues, the adequacy of its remedial powers, and the interest of the parties in an expeditious disposition of the controversy , which interest would not be served by sending them away "empty -handed" to seek a resolution of the matter elsewhere These considerations would seem con- trolling here It might be added that at the instant hearing a representative of District 50, in effect , disclaimed any intent to seek arbitration, if the Board entertained the case on the merits , and, as noted above, Respondent has not taken a clear stand in this proceeding in favor of arbitration 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The direct negotiations The complaint, as amended, alleges that Respon- dent additionally violated Section 8(a)(5) and (1) by bargaining directly with Links and Curtis about the effect of the reassignment of the trucking operations upon their terms and conditions of em- ployment. It is well settled under Fibreboard and re- lated cases that the duty of advance consultation with a union about elimination of unit work in- cludes the duty to negotiate about the disposition to be made of any employees displaced or otherwise affected by such proposed action, or about ways and means of mitigating the effect of such action on employees.24 It is undenied that at its interviews with Curtis and Links late in September Respondent an- nounced its decision to replace them with a Cen- tralia driver and offered them the alternatives of (1) continuing at Ashley as plant employees without loss of accrued seniority , ( 2) transferring to plant jobs at Centralia without accrued seniority but with a promise of preferential consideration for any driving vacancies that might develop, or (3) quitting Respondent's employ . Both men elected to stay at Ashley as laborers. It is Respondent's posi- tion that the foregoing communications to the men did not constitute individual bargaining in the usual sense of negotiations concerning the establishment of new terms and conditions of employment, since the terms of employment offered the men were those already fixed either by the Ashley or the Cen- tralia contract. However, there was no evidence nor contention that any provision of those contracts required Respondent to offer the men jobs at Cen- tralia . In this respect, at least , Respondent went beyond a mere recital of the effect upon the men of the application of existing contractual provisions, and intruded upon the area reserved to District 50 as the bargaining representative of the two drivers. It is accordingly found that by the foregoing direct negotiations Respondent violated Section 8(a)(5) and (1) of the Act. IV. THE REMEDY It having been found that Respondent violated Section 8(a)(5) and (1) by unilaterally assigning the routes of Curtis and Links to drivers in another unit, it will be recommended that Respondent be directed to cease and desist from engaging in such conduct and take appropriate affirmative action. It will be recommended that such affirmative remedy include, subject to the qualifications noted below, an order that Respondent bargain with Dis- trict 50 about the transfer of the instant work from the Ashley to the Centralia drivers, which would encompass not only bargaining about the merits of such transfer but also about how to mitigate the ef- fect thereof on Curtis and Links. In order that such bargaining may be effective, it is essential that Dis- trict 50 be put in the same position as it enjoyed be- fore Respondent's unilateral action. To this end, it will be recommended that Respondent be required to restore, so far as practicable, the status quo ante with respect to Links and Curtis. Since it has been found that from the standpoint of economy of operations it was a matter of indif- ference to Respondent whether the instant work was assigned to the Ashley drivers or the Centralia drivers, it will be recommended that, pending bar- gaining about the transfer of any driving job from Ashley to Centralia employees, Respondent restore to the Ashley unit the work here involved, except insofar as it may have already been discontinued entirely for economic reasons. As the record shows that Curtis' former run was in fact dropped for economic reasons on or about November 15, 1969, Respondent should not be required to reinstate that run,25 and only Links' former run, which was still being operated at the time of the hearing, will have to be restored to the Ashley unit under such order. However, since Curtis would have been entitled by seniority to bump Links on November 15,26 and take over his run, it will be recommended that Cur- tis, and not Links, be reinstated to that run. With regard to backpay, it has been the Board's policy in cases involving, as here, a unilateral reduction in unit work for nondiscriminatory reasons to order backpay to the affected employees only until such time as the respondent satisfies its duty to bargain about the matter or such duty is otherwise terminated.27 Accordingly, it will be recommended that a like order be entered here, with the proviso that, in computing backpay, con- sideration be given to the following factors: 1. Since Curtis' former run was abandoned for economic reasons about November 15, and there is no question as to the propriety of such action,28 no backpay may accrue with respect to that run beyond the date of such abandonment. 2. Since, upon the termination of that run, Curtis would have been entitled by seniority to bump 4' E g , Plymouth Industries, Inc , supra. U See Ozark Trailers, Incorporated, 161 NLRB 561 , 571 In his brief, the General Counsel agrees that Respondent should not be ordered to reinstate an "obsolete " run Moreover, under article XVIII it is clear that Respon- dent was free to abandon the run entirely , without consulting District 50 "See fn 29, below °r Royal Plating and Polishing Co, Inc, 160 NLRB 990, 998, Wittock Supply Company, 171 NLRB 201 See those cases for a delineation of the manner in which such bargaining duty may be discharged or otherwise ter- minated 2 The ultimate , unilateral discontinuance of Curtis' former run, as distin- guished from the prior transfer thereof to a Centralia driver, was not al- leged as a violation and not litigated as such, and, as already noted , there is no reason to doubt, in any event, that such action was authorized by article Will CONSOLIDATED FOODS CORPORATION Links,29 any backpay due Links ceased to accrue as of the date of such termination , and Curtis is enti- tled to backpay thereafter on the basis of his as- sumed taking over of Links' former run." In view of the foregoing circumstances, any fu- ture bargaining about the decision to transfer the runs will necessarily be limited to the run formerly assigned to Links but required by the terms of the recommended order to be assigned to Curtis. CONCLUSIONS OF LAW 1. At all material times District 50 has been, and still is, the exclusive bargaining representative of Respondent's employees in the following ap- propriate unit: All production and maintenance employees and truckdrivers at its Ashley, Illinois, plant, excluding office clerical and professional em- ployees, guards and supervisors as defined in the Act. 2. By transferring to employees in a different bargaining unit, at its Centralia, Illinois plant, work formerly done by employees in the above-described unit, without prior notice to, or consultation with, District 50, and by discussing the effect of such transfer directly with the employees adversely af- fected thereby rather than with their bargaining agent, Respondent has violated Section 8(a)(5) and (1) of the Act. 3. Such unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. RECOMMENDED ORDER Pursuant to Section 10(c) of the Act, as amended, it is hereby ordered that Respondent, Consolidated Foods Corporation, Ashley, Illinois, its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Unilaterally transferring work from em- ployees within the bargaining unit, described below, represented by International Union of District 50, United Mine Workers of America, to other em- ployees, where such transfer has a substantial, ad- verse effect on the former employees. (b) Negotiating directly with employees in such unit concerning the effect of Such a transfer on them. x0 The record shows that Curtis was originally hired in 1951 at Ashley, was on an unspecified date thereafter transferred to the Centralia payroll, and was reassigned to Ashley as a driver in March 1966 , under the circum- stances described above Links, according to his own testimony , had been employed at Ashley for 3-1/2 years at the time of the instant hearing (on January 27, 1970) and Respondent 's personnel manager, Drake, gave Links' initial hiring date as Deptember 1966 It appears, therefore, that, even if one considers only Curtis' most recent period of continuous em- ployment at Ashley, he would have more seniority than Links If, however, the record does not correctly reflect the relative seniority of both men, it would be appropriate for the General Counsel or any other party to apply to the Board for reopening of the record on that point Since only a matter of modifying the remedy would be involved , there would presumably be no obstacle to the granting of such application 839 (c) In any like or related manner , refusing to negotiate with said Union as the exclusive represen- tative of its employees in the following unit: All production and maintenance employees and truckdrivers at Respondent's Ashley, Il- linois, plant, excluding office clerical and professional employees, guards and supervisors as defined in the Act. 2. Take the following affirmative action, which is deemed necessary and appropriate to effectuate the policies of the Act: (a) Before effecting any transfer of work from its Ashley plant to its Centralia plant that will materially affect its employees, offer to bargain about such transfer with the aforenamed Union. (b) Offer Charles F. Curtis immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, in the manner specified in the section of the Trial Ex- aminer's Decision entitled "The Remedy." (c) Notify the above-named employee, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Make the above-named employee and Benjamin Links whole for any loss of earnings they may have suffered as a result of the Respondent's unilateral action, in the manner set forth in the sec- tion of the Trial Examiner's Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its establishment in Ashley, Illinois, copies of the attached notice marked "Appen- dix."31 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all 30 Backpay shall be computed in accordance with the principles laid down in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 840 DECISIONS OF NATIONAL places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.32 32 In the event that this Recommended Order is adopted by the Board, this provision shall he modified to read " Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, without consulting Interna- tional Union of District 50, United Mine Wor- kers of America, transfer work from employees in the unit described below to other em- ployees, if such transfer causes any employees to lose substantial earnings . The unit is: All production and maintenance em- ployees and truckdrivers at our Ashley, Il- linois , plant, excluding office clerical and professional employees, guards and super- visors as defined in the Act. WE WILL NOT discuss directly with em- ployees the effect of any such transfer on them. WE WILL NOT in any like or related manner refuse to bargain with said Union about the LABOR RELATIONS BOARD terms and conditions of employment of the employees in the above unit. WE WILL offer to Charles F. Curtis im- mediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him and Benjamin Links whole for any loss of pay they may have suf- fered as a result of our transfer of their driving assignments to employees on our Centralia, Il- linois, payroll. WE WILL notify Charles F. Curtis, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. CONSOLIDATED FOODS CORPORATION (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1040 Boatmen 's Bank Building, 314 North Broadway , St. Louis, Missouri 63102, Telephone 314-622-4165.