Cessna Aircraft Co.

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cessna Aircraft Company, Industrial Products TRIAL EXAMINER'S DECISION Division and District Lodge No. 70 and Local Lodge No. 1992 , International Association of Machinists and Aerospace Workers, AFL-CIO Cessna Aircraft Company , Commercial & Military Division and District Lodge No. 70 and Local Lodge No. 774, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 17-CA-3117 and 17-CA-3148 June 27, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On February 14, 1968, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision together with supporting briefs, and the Respon- dent filed cross-exceptions with a brief in answer to the briefs of the General Counsel and the Charging Party and in support of its cross-exceptions. 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, cross-ex- ceptions, and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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. STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding with all the parties represented, was heard on Sep- tember 27, 28, and 29, 1967, in Wichita, Kansas, on the consolidated complaint of the General Coun- sel,' and the answer of Cessna Aircraft Company, herein interchangeably called the Respondent or the Company. In issue is the question whether the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended,' by uni- laterally promoting crew chiefs to supervisory posi- tions from their jobs in established bargaining units and discontinuing such unit jobs, pursuant to a legitimate departmental and supervisory reor- ganization, without advance notice to the em- ployees' exclusive representatives, District Lodge No. 70, and Local Lodges Nos. 1992 and 774, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, herein collectively called the Union, or affording the Union an oppor- tunity to bargain concerning these contemplated changes. At the conclusion of the hearing, the parties waived oral argument. Thereafter, the General Counsel and the Respondent filed com- prehensive and illuminating briefs: The Respon- dent's motion made at the hearing to dismiss the consolidated complaint, upon which ruling was reserved, is now granted in accordance with my findings and conclusions set forth below. Upon the entire record,3 and from my observa- tion of the demeanor of the witnesses, and with due consideration being given to the arguments ad- vanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Kansas corporation with its corporate headquarters at Wichita, Kansas. In- ' The charge in Case 17-CA-31 17 was filed on January 19, 1967, and a copy was served on the Respondent by registered mail on the same day The charge in Case 17-CA-3148 was filed on February 14, 1967, and a copy was similarly served on that day S Sec 8 (a)(5) of the Act makes it an unfair labor practice for an em- ployer "to refuse to bargain collectively with the representatives of his em- ployees," while Section 8(a)( I) makes it an unfair labor practice "to inter- fere with, restrain, or coerce employees in the exercise of the rights guaran- teed in Section 7," which embodies the right "to bargain collectively through representatives of their own choosing " 3 On November 30, 1967, the parties filed with the Trial Examiner a joint motion to correct the record and stipulation The motion is granted, and the transcript of testimony is hereby corrected in the respects indicated Moreover, par 6, 1. 3, of the Respondent's answer is hereby amended to read "4(b)" instead of "4(c) " In addition , in accordance with the stipula- tion of the parties, the record will reflect that the 8 ( a)(3) allegations in the unfair labor practice charges filed in the instant cases were withdrawn by the Union on August 25, 1967, with the Regional Director's approval granted on August 28, 1967 Finally, the record will reflect that , in connec- tion with Resp Exh I in evidence, the attorney for the General Counsel "was authorized by the Respondent and its counsel of record to commu- nicate directly with Mr Worford with respect to matters pertaining to this litigation " 172 NLRB No. 86 CESSNA AIRCRAFT CO. 697 volved herein are its Industrial Products Division located in Hutchinson, Kansas, where it manufac- tures hydraulic valves, cylinders, pumps, and other power components for the agricultural and industri- al equipment industries; its Commercial Aircraft Division where commercial aircraft is built; and its Military Aircraft Division which engages in prime military contracting, military subcontracting, and twin-engine commercial aircraft production. The facilities of the Commercial and Military Divisions are situated in Wichita.' In the course and conduct of its business at the foregoing facilities, the Respondent annually sells finished products valued in excess of $50,000 directly to out-of-state customers, and annually purchases goods and ser- vices valued in excess of $50,000 directly from sources located outside the State. It is undisputed, and I find, that the Respondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that effectuation of the policies of the Act warrants the Board's as- sertion of jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED District Lodge No. 70 and Local Lodges Nos. 1992 and 774, International Association of Machin- ists and Aerospace Workers, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; The Principal Issue For more than 20 years, the Union has been the duly recognized collective-bargaining representa- tive in separate units of certain of the Respondent's employees at its Industrial Products Division and at its Commercial and Military Aircraft Divisions pur- suant to successive agreements.' Admittedly, rela- tions between the parties have generally been am- icable. Difficulties between them, however, arose as a result of the Respondent's implementation of a reorganization program it had developed for legiti- mate business reasons which entailed a revision of its departmental and supervisory structure, the discontinuance of unit jobs of crew chiefs from the reorganized departments, and the promotion of the employees occupying those jobs to newly created supervisory positions, as will be discussed below. The consolidated complaint alleges, in substance, that the Respondent failed to accord the Union ap- propriate notice and opportunity to bargain con- cerning these changes, while the Respondent, in defense, insists it sincerely performed whatever bar- gaining obligation the Act imposed upon it. We turn to the evidence. B. The Evidence 1. The reorganization of Respondent's operations and supervisory structure Without going into unnecessary detail, it is con- ceded that the Respondent was prompted by genuine economic considerations to undertake an overall reorganization of the operations at its Indus- trial Products and Aircraft plants. For the past 7 years, the Respondent had experienced remarkable growth in business and employment in these divi- sions. Accordingly, in 1965, the Respondent hired a management consulting firm to study the Respon- dent's long-range organizational and managerial requirements. In the meantime, engineers were pro- gramming plant expansions to care for additional employees and a further anticipated rise in busi- ness.6 On the basis of their study, the consultants recommended that the production area and the su- pervisory structure at these facilities be completely reorganized to meet the increasing need for more efficiency and better supervision. In line with these recommendations, the various departments were rearranged and the supervisory force from top to bottom was realigned to provide for, among other things, a closer, more effective and responsible su- pervision of smaller groups of employees than had previously existed in the plants.7 The reorganization became operative on January 16, 1967, at the In- dustrial Products Division and on February 13, 1967, at the Aircraft Divisions. The Industrial Products Division and the Aircraft Divisions are also referred to in the record as the Hutchinson and Wichita plants, respective- ly More accurately , District 70 and Local Lodge No 1992 have negotiated contracts on behalf of the employees at the Industrial Products Division in a unit described in the contract in effect at the time of the events herein , as follows all employees engaged in production , maintenance work and parts room at the Hutchinson , Kansas, plant the employer including janitors, inspectors, production dispatchers , and working supervisors but ex- cluding non-working supervisors This contract was due to expire on October 28, 1967 With respect to the contracts covering the employees at the Commercial and Military Divisions , they were negotiated by District 70 and Local Lodge No 774 As described in the contract current when the significant events occurred , the unit consists of all employees engaged in production , maintenance work and parts rooms at the Wichita plants of the employer, including working super- visor but excluding non-working supervisors At the time of the hearing , this agreement was superseded by a newly negotiated agreement for a term beginning July 1, 1967, until June 28, 1970 6 Between 1965 and 1966 work was begun on the expansion of the plant facilities involved herein r The reorganization affected not only departments whose employees were included in the bargaining units but also other departments whose employees were excluded On the other hand, there were several depart- ments whose employees belonged in the bargaining units which were not reorganized 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Creation of section foreman and shop supervisor positions; elimination of crew chief jobs Of particular relevance to the issues in this case is the creation, pursuant to the reorganization plan, of two new supervisory positions, section foreman at the Industrial Products Division and its counter- part, shop supervisor, at the Aircraft Divisions. These positions were established as the first line of supervision of unit employees in those production areas which were reorganized, replacing crew chiefs who until then generally served in that capacity. However, unlike section foremen or shop supervisors who were concededly vested with su- pervisory authority as defined in the Act,8 and were therefore excluded from the bargaining units, crew chiefs lacked this authority. Indeed, crew chiefs have always been recognized as unit employees designated in the bargaining agreement as "working supervisors," who enjoyed the same general work- ing conditions and fringe benefits as other unit em- ployees. To fill the new positions, the Respondent offered section foreman and shop supervisor positions to the crew chiefs and promoted those who accepted.9 As a result, approximately 60 of the 65 crew chiefs at the Industrial Products Division and 210 of the 240 crew chiefs at the Aircraft Divisions were promoted out of the bargaining units to the new su- pervisory positions with no replacements being ap- pointed to their former jobs.10 Eight crew chiefs af- fected by the reorganization declined the promo- tions for a variety of reasons, many of which were personal, and were assigned to other jobs within and without the bargaining units. Some were as- signed to higher classified jobs while others retained their bargaining unit classification" but not their crew chief status which was no longer available in the reorganized departments. It is quite clear that section foremen and shop su- pervisors, for all practical purposes, assumed the directive functions of the crew chiefs who were aptly described in the record as "show and tell" men or "straw-bosses. 1112 However, there is cer- 9 Section 2 ( 11) of the Act defines the term "supervisor " to mean "any individual having authority, in the interest of the employer, to hire, transfer , suspend, lay off, recall , promote, discharge, assign, reward, or discipline other employees , or responsibly to direct them, or to adjust their grievances , or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature ,. but requires the use of independent judgment " ' Other employees , both from within and outside the bargaining units, in- luding former assistant foremen, were also appointed to these supervisory positions 10 A total of about 35 crew chiefs thus remained at the Industrail Products and Aircraft Divisions following the reorganization In the great majority of cases, these crew chiefs were assigned to areas which were not affected by the reorganization and their duties remained unchanged 11 Although there was no written job description for crew chiefs, their production job classification was based on the production work they per- formed or was done by employees under their direction 12 Among other duties, the crew chief was required to communicate to his crew his supervisor's orders and to see that they were carried out, to keep the crew running orderly , to make parts, materials , and tools available tainly no question that the section foremen and shop supervisors were vested with much greater production responsibilities and effective superviso- ry authority over unit employees with respect to their promotion, termination, discipline, and status, which the crew chiefs did not possess. Of course, section foremen and shop supervisors may not per- form any physical production work which crew chiefs were called upon to perform and which con- stituted a minor part of their duties.13 3. The Union's knowledge of the Respondent's contemplated crew chief changes; its reaction In July 1966,14 while the Respondent's reor- ganization plans affecting crew chiefs were still in their formative stages, W. L. Worford, the Respon- dent's industrial relations director, met with Stan- ford T. Blair, the Union's business agent handling labor matters at the Commercial Aircraft Division, to discuss a problem unrelated to crew chiefs. In the course of their conversation, Worford men- tioned that the Respondent was considering realign- ing its supervisory structure with the possibility that crew chiefs would be promoted out of the bar- gaining units to full supervisory positions. Worford, however, also indicated the tentative nature of the Company's plans and candidly testified at the hear- ing that he did not expect Blair to act on this infor- mation. In late October or November, Lynn Westbrook, the union representative assigned to the Military Aircraft Division," heard rumors at the plant that crew chiefs were going to be removed from the bar- gaining units to become supervisors. Although he originally discounted their truth, he and Bill Byrd, the Union's military plant chairman, conferred about the middle of October with Donald E. Powell, the personnel manager at this division, when these rumors persisted. Powell indicated that he was not aware that anything definite was de- cided and agreed to advise Westbrook whether there was more to the rumors.16 According to Powell, and I have no reason to disbelieve him, he to his employees, to check their work against blueprints and specifications, to help train and instruct new employees, as well as to instruct old em- ployees needing such help, to assist in setting up machines , to report per- sonnel and production problems to his supervisor , to maintain efficiency records of his employees , and to keep work areas clean and safe Not all of these duties, however , were performed by all the crew chiefs but varied with the nature of the work and composition of the crew " Some crew chiefs had no assigned production job as such and spent most of their time directing their crew As a rule, crew chiefs had very little time to run machines on a regular basis but would fill in for an absent em- ployee, or do production or machine work where there was a pressing need , or as overtime Some crew chiefs, on the other hand, were given production assignments and did production work as part of their day-to- day tasks All crew chiefs were available on call or request to perform production assignments 14 Unless otherwise indicated, all dates refer to 1966 15 Commercial Aircraft Division was his secondary assignment The foregoing testimony reflects Westbrook 's substantially uncon- tradicted testimony CESSNA AIRCRAFT CO. 699 also stated that plans for reorganizing supervision was then under study. A few days later, Westbrook reported the rumors and his conversation with Powell to his superior, Jarrett Molen, directing representative of District Lodge 70, who was then in the hospital," Earl Mundy, the union representative assigned to the In- dustrial Products Division, who assumed Molen's duties in his absence, and Union Representative Blair who, in addition to his Commercial Division assignment, had the Military Division as his secon- dary assignment. Molen credibly testified that this was the first time he had heard about the Respon- dent's contemplated changes and instructed West- brook that the rumors were serious enough for him to keep his ear to the ground and that if he learned that there was truth to the rumors to inform the Company in no uncertain terms that the Union would not countenance the crew chiefs being moved out of the units and that if the Respondent wanted "to change the contract and to make changes in this area ... it was a matter for bargain- ing ... Prompted by the information thus received from Westbrook, Blair communicated with Ray Fuller, personnel supervisor at Commercial, to verify whether the Respondent had under consideration the promotion of crew chiefs to supervisors. Fuller answered that he knew nothing about it. With the rumors nevertheless continuing, Blair made a telephone call in November to Industrial Relations Director Worford,18 to ascertain the Respondent's intentions. Worford confirmed that the Company had such promotion plans for the crew chiefs at the Industrial Products Division but that he didn't know when the changes would be made. Blair then urged Worford not to go through with the promotions at the Aircraft Divisions and requested that, should the Company decide otherwise, to notify him of the effective date. Subsequently, at a regular weekly District Lodge staff meeting of union representatives assigned to the Respondent's plants, Blair reported his above conversation with Worford. Mundy indicated that he was aware of the contemplated promotions at the Industrial Products Division. On December 7,19 Westbrook and Byrd again conferred with Personnel Manager Powell at the Military Division. In response to Westbrook's inquiry, Powell informed him that the Company in- tended to go ahead with the promotion of crew chiefs to supervisory positions after the first of the year.20 Westbrook questioned the Company's right to do it, asserting that since crew chiefs were al- ways part of the contractual bargaining unit they could not be removed. Powell disagreed and in- sisted that the Company had this right because the crew chiefs were going to be made true supervisors without any physical production work functions. He added that he did not anticipate any problems since the crew chiefs affected by the reorganization would be offered the promotions and that if any problems did arise, they would be discussed. Powell also stated that there were several departments which would not be reorganized so that, in any event, a number of crew chiefs would still remain in the unit.21 There is a conflict in the testimony whether on this occasion Westbrook mentioned that crew chief changes were bargainable matters. Westbrook testified that he stated that crew chiefs had always been part of the contractual bargaining unit and that "they would have to remain ... [there], unless we bargained them out of the unit." Byrd could only recall that Westbrook "did stress that they [the Union] were against it and ... [the Respon- dent] couldn't do it, taking the crew chiefs out." Powell denied that Westbrook referred to bargain- ing and I am inclined to credit his denial. Indeed, as indicated below, Westbrook's report to his superi- or, Molen, does not allude to any bargaining request made to Powell. In any event, I construe Westbrook's remarks in light of all the evidence, not as a clear and unequivocal request for bargain- ing, but rather as a statement of position that crew chiefs could not be removed from the unit without the Union's consent. As a result of his conversation with Powell, West- brook testified he was convinced that the Respon- dent intended to proceed with the changes and promotions. He promptly telephoned Molen at the hospital and reported what he learned from Powell and the stand he (Westbrook) had taken that the Respondent did not have the right to remove the crew chiefs from the bargaining unit. Molen con- firmed the correctness of Westbrook's position. Westbrook also related his experience with Powell to Blair and Mundy, who was still acting as the directing representative in Molen's absence. About January 9, 1967, Thane Woolsey, the works manager at the Industrial Products Division, summoned Ray Neuway, president of Local 1992 and plant chairman, to his office and advised him that in the interest of efficiency, the Company was going "to make foremen out of the crew chiefs" at the Industrial Products plant and that all parties would be better off with these employees out of the bargaining unit. Woolsey also pointed out that a number of crew chiefs would retain their jobs in certain departments where reorganization was not " Molen was hospitalized from October 17 to November 4, 1966, and Westbrook was scheduled to enter the hospital 2 days later for surgery again from Thanksgiving Day to about December 12, 1966 During these °o Mundy testified that Westbrook reported this to him periods and the period of his convalescence , Mundy acted as the directing Y1 The foregoing findings are based on portions of the combined representative of District Lodge 70 testimony of Westbrook , Powell, and Byrd which I deem credible " Worford was at home recuperating from an illness 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contemplated. Although Woolsey told Neuway that he need not advise "Wichita," evidently meaning the Union, because "we could solve our own problems," Neuway retorted that the Company "would probably hear from us later." Neuway promptly conveyed the foregoing information that crew chiefs were going to be removed from the unit to John E. Elam, the Union's special representative at this plant, who, in turn, reported it to Mundy. On January 4 or 5, 1967, following his return to work after his illness, Industrial Relations Director Worford was advised by Personnel Manager Doher- ty of the Company's intentions to put its reorganiza- tion plans into effect at the Industrial Products plant on January 16. After several attempts, Wor- ford reached Directing Representative Molen on the telephone on January 9 and arranged to meet with him the next morning to discuss this matter. According to Molen's uncontradicted and credible testimony, he inquired of Worford on this occasion whether it was true that the Respondent was going through with the contemplated promotions of crew chiefs out of the bargaining units. Worford replied in the affirmative, stating "that they didn't know all of the details, but that they were going to do some reorganizing and make some changes within their structure." Molen responded that he thought it was a mistake; that the Company should have brought this matter to the Union's attention; and that they should have bargained with the Union and "worked it out." Worford disagreed, asserting that it was management's right to make the changes without bargaining. However, Worford offered to furnish the Union whatever information it wanted and ex- pressed the desire to meet with Molen "to explain further why the company felt this needed to be done." At the scheduled meeting, the next day, January 10, Worford reviewed the reorganization plans and the economic need for such action and outlined the revised supervisory structure, including the newly created section foreman and shop supervisor posi- tions to which crew chiefs would be promoted. Worford also explained that crew chiefs would no longer be in the units and would not be replaced. Molen voiced his objection to the Respondent's ac- tion and criticized it for the poor communication that existed with respect to its plans. Apparently in response, Worford referred to the fact that the Union had not objected to past promotions of em- ployees to assistant foremen positions. Molen con- ceded this but added that in those cases the promo- tions ... did not infringe upon the bargaining unit work and that ... [the Union] accepted the fact that ... [the Company] had a right to promote, but ... [it] didn't have a right to mass promotion and still allow the people to do the same work they were always doing and erode the unit in doing it. During the discussions Worford asserted that the realigned supervisory structure would benefit all the parties since it would result in a more efficient operation and increased business. Although Molen recognized the probable need for such reorganiza- tion, he indicated that it created problems which might require him to take some action, indicating the possibility of filing unfair labor practice charges. Notwithstanding, Molen thought it advisa- ble and suggested that Worford arrange to have the personnel managers at the respective plants meet with the Union's representatives there assigned.22 The one question remaining to be resolved is whether the subject of bargaining over the contem- plated crew chief changes and promotions arose during this conversation. Worford denied that anything was said about bargaining, whereas Molen testified that Worford stated that these matters were not bargainable and that the Company was not willing to bargain over them, although he did offer to give the Union any information it wanted. However, Molen also admitted that Worford was agreeable to discuss with the Union any problems or adverse effects on the bargaining units or the employees resulting from the changes. I find that in all probability the subject was mentioned and I credit Molen's testimony concerning it. In accordance with Molen's suggestion, Worford communicated with his personnel managers at the Industrial Products and Aircraft plants and in- structed them to arrange for early meetings with the Union's business representatives assigned to their respective plants to explain the Company's planned changes. On January 10 or 11, 1967, when Personnel Manager Doherty received Worford's call at the Industrial Products plant, Business Representative Mundy, Special Representative Elam, and Plant Chairman Neuway were in the of- fice waiting room to see Doherty on a matter unre- lated to crew chiefs. After that item of business was disposed of, Doherty proceeded to discuss the Company's plans which, as he pointed out, were designed to strengthen and realign its supervision at that plant in order to improve efficiency and cor- rect some serious problems in its operations. He particularly outlined the Company's intention of creating a new supervisory position of section foremen which would be offered to crew chiefs. This elicited Mundy's comment that what Doherty was trying to tell him was that crew chiefs were going to be removed from the bargaining unit. Doherty answered that Mundy was only partly right since there were several departments which would not be reorganized and hence the status of crew "The above findings are based on my appraisal of Worford's and Molen 's testimony CESSNA AIRCRAFT CO. chiefs would not be changed there. Mundy then ex- pressed the Union's objection to the Respondent's contemplated action. He stated, to quote from his testimony, that ... we didn't believe he could do that, that the only way he could do that in the union's opinion and in my opinion was that he would have to negotiate these people out of the unit. There isn't any other way you can get them out. I told him we intended to fight it. We had heard this was going to happen ... but we didn't know where it would happen first.... and we would fight it with whatever we could muster to do it with, including charges .... Mundy further declared that the crew chief position was the highest unit classification and the Company could not eliminate that job and thus deprive em- ployees of the right to secure it through the grievance procedure, unless the crew chief job was "negotiated out" of the bargaining units. Doherty, however, disagreed and insisted that the Company had the contractual right to make the changes in question and promotions'23 adding that the Com- pany was not merely changing the name of the crew chiefs but was conferring upon them the authority and responsibility of nonworking supervisors in the true legal sense. Concerning his position with respect to the elimination of crew chiefs from the contractual units , Mundy gave this rather illuminating testimony on cross-examination: Q. You wanted to negotiate some type of amendment or addition to the contract? A. No, I didn't want to. I told them if they wanted to do this that is what they would have to do. I didn't want to negotiate this out. I told him that if it was done at all it would have to be done that way. Q. You didn't want to negotiate about it at all. Your position was that they couldn't do it and that was it, is that correct? A. Well, that would be my position that un- less there was a mutual consent basis that they couldn't do it. [Emphasis supplied.] The meeting closed with the union representa- tives being advised by Doherty that the changes and promotions at the Industrial Products plant were going into effect on January 16, 1967, and that he was prepared to discuss with them at any time any anticipated problems or effects resulting from the planned changes.24 On January 12, 1967, Paul Hennum, personnel manager at the Commercial Aircraft plant, also met with Business Representative Blair and Union Plant Chairman Baker to discuss the Company's reor- 23 At the hearing, Mundy testified that his position during the conversa- tion in question was not that the Company did not have the right under the contract to make the promotions but rather that it had no right "to erode the bargaining unit" or "take the crew chiefs out of the bargaining units 701 ganization plans and the contemplated crew chief changes at this plant. Stating that the management consultants had after a study made recommenda- tions accepted by the Company, Hennum proceeded, as Doherty had done with respect to the Industrial Products plant, to describe at length the revampment of the production departments and su- pervision at Commercial Aircraft, including the creation of a new nonunit position of shop super- visor to supplant the crew chief job as the lowest level of supervision. He also explained the need for the reorganization and indicated that crew chiefs would be offered promotions to shop supervisors. When Blair expressed concern that shop super- visors might perform the production work of rank- and-file employees, Hennum assured him that that was not the Company's intention since it would de- feat the very purpose of the reorganization and in- vited Blair to bring such occurrences to his atten- tion. Apparently in response to Blair's objection to the removal of crew chiefs from the unit, Hennum pointed out that crew chiefs in the maintenance de- partment would continue in that capacity and stated that if, in the course of time, it appeared that more crew chiefs were needed in other depart- ments, then those jobs would be created. The discussions led to a consideration of certain practi- cal problems caused by the reorganization. For ex- ample, Blair brought up the subjects of stewards for the new departments and the supervisor to whom stewards could bring complaints under the con- tract. Hennum also advised Blair that the Company had decided to put its plans into operation and make the promotions shortly after straightening out some minor details and coordinating problems. Blair then requested that he be notified when the date was finally determined and Hennum agreed to do so. About a week before February 13, 1967, when the reorganization at Commercial Aircraft went into effect, Hennum notified Blair. The foregoing findings embody the substantially uncontradicted testimony of Hennum and Blair. However, as in the case of the meeting between Doherty and Mundy, there is a conflict in testimony whether the subject of bargaining over the crew chief changes was raised during the Hennum-Blair discussions. According to Blair at some point he commented that crew chief changes were a bar- -gainable matter but Hennum made no response. Hennum, on the other hand, denied that Blair in- dicated that the Union desired to bargain over the crew chief changes or promotions. Baker, who ac- companied Blair to the meeting, could only recall that Blair objected to the removal of crew chiefs from the unit. Although I find that Blair protested and leave them doing the same work they were doing and take away our first line of supervision." 24 The foregoing findings reflect the substantially undisputed testimony of Doherty and Mundy. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the removal of crew chiefs from the unit, I am not persuaded that he requested bargaining and I credit Hennum in this respect. Later in the day after leaving Hennum, Blair, substituting for Business Representative Westbrook who was then in the hospital, telephoned Personnel Manager Powell at the Military Aircraft plant to ascertain whether the Company intended to take the same action there as the Company planned on taking at the Commercial Aircraft plant. Powell an- swered in the affirmative, giving him essentially the same information received from Hennum. Powell also advised Blair that he was unable to furnish him with the exact effective date of the changes as the Company was experiencing some schedule coor- dinating problems. It is quite clear that Blair neither voiced any objections nor requested bargaining on this occasion. On the other hand, Powell credibly testified, without contradiction, that he advised Blair that if any problems developed from the Com- pany's action, it was certainly prepared to discuss them with the Union. About a week or two before February 13, 1967, the date the reorganization was instituted at the Military Aircraft plant, Powell put Westbrook on notice of this scheduled event.25 Following his January 10, 1967, meeting with Union Business Representative Mundy, Personnel Manager Doherty reported to Industrial Relations Manager Worford that Mundy had challenged the Company's right to remove crew chiefs from the bargaining unit at the Industrial Products plant. On or about January 18, 2 days after the reorganization went into effect there, Worford telephoned Direct- ing Representative Molen but spoke to Mundy because of Molen's absence. Worford asked Mundy whether he had resolved the crew chief problem with Doherty. Mundy answered in the negative and questioned the Company's right to remove crew chiefs from the unit.26 Worford attempted to justify the Company's action simply as a realignment of supervision. To this statement Mundy retorted that whatever Worford called it, 60 crew chiefs were still "missing" from the unit. Worford then invited Mundy to his office to clarify and discuss the situa- tion, explain the need for the reorganization and the benefits the Union would ultimately derive from it. Mundy declined the invitation with the comment that Worford and Molen had previously conferred without success and that he could not see what he and Worford could accomplish by meeting. Mundy, however, then proposed that "the two negotiating committees"27 sit down to negotiate over the disputed matter. Worford rejected this proposal, suggesting that Mundy and Molen first meet with him. Mundy stated that he would convey Worford's request to Molen, which he subsequently did. Be- fore concluding their conversation, Mundy in- formed Worford that the matter had been referred to higher authority in the union organization to determine what measures to take. Thereafter, neither Molen nor Mundy responded to Worford's invitation because, as Mundy testified, Molen told him there was no point in having another meeting in view of his previous 2-hour unproductive discus- sion with Worford. The next day, the Respondent received a copy of the unfair labor practice charge filed on January 19, 1967, in Case 17-CA-3117. 4. Promotions of crew chiefs; past promotion practices In anticipation of the promotion of crew chiefs to shop supervisors at the Industrial Products plant and section foremen at the Aircraft plants, these employees were individually interviewed and spoken to in groups.28 The reorganization plans and the duties and responsibilities of the new positions were fully explained to them. They were told that it was hoped they would accept the promotions. In answer to inquiries from several crew chiefs, they were further informed that if they did not accept the promotions they would be offered the best posi- tion open which they could perform and would receive consideration for new job openings. No union representative was present or asked to be present at these interviews or meetings; nor did any union representative request to attend. A total of 25 Powell also believed he gave similar notice to Plant Chairman Byrd about the same time, although he was not certain Y' When questioned , on cross-examination , whether in his conversation with Worford or Doherty he made any demand for bargaining concerning "any adverse results or effects" of the promotions of crew chiefs upon bar- gaining unit work for employees, Mundy testified that I did not make any demands to negotiate However, I did point out numerous things that I thought was an adverse condition to our bargaining unit and our bargaining rights and to our membership [M]y position has always been that the company cannot do what they did unless they would propose to the union to sit down and negotiate and come up with a proposal that would be acceptable to the union and it's also has been my position throughout this thing that we had something and that we would not be doing our membership or our union Justice to accept an alternative which wouldn't serve us as well as the one we had [ Emphasis supplied ] `r "[T]he two negotiating committees" were not otherwise identified by Mundy He, however, indicated in his testimony that he meant the Union's negotiating committee at the Industrial Products Division and the Com- pany's negotiating committee Worford testified that he thought Mundy proposed joint negotiations for the Industrial Products and Aircraft Divi- sions, something that had never been done before Z" At the Industrial Products plant , crew chiefs were spoken to on Janua- ry 9, 1967, at separate shift meetings , when the job was explained to them in general terms In subsequent individual interviews they were offered the promotions At the Commercial Aircraft plant , crew chiefs were in- dividually appraised of the contemplated reorganization , the new super- visory positions and their duties This occurred during the period from late November through the first week in December 1966 They were offered the jobs before the reorganization went into effect At the Military Aircraft plant, beginning in December 1966, crew chiefs were individually given in- formation concerning the contemplated changes and promotions On these occasions, they were asked whether they would accept the new supervisory job, if one were offered About a week or two before February 13, 1967, the crew chiefs were individually advised of their promotions and the effec- tive date of the reorganization Promotions to section foremen or shop su- pervisor carried with it a higher base rate than that the crew chiefs received in their former capacity CESSNA AIRCRAFT CO. 703 270 crew chiefs accepted the promotions, while 8 refused them for a variety of reasons, many of which were personal, including health, imminent retirement, and desire to avoid additional responsi- bilities. These eight individuals were assigned to other jobs both within and without the bargaining units. Some were assigned to jobs with higher clas- sifications. Some retained the same bargaining unit classification they held as crew chiefs which was determined by the work they performed or that was performed by the people under their supervision. Manifestly, they did not retain their crew chief status as this alternative was not available to them. Article V of the collective-bargaining agreements which were in effect at the time of the events herein provided that "[t]he right to promote ... is the sole responsibility of the Company and is sub- ject to the grievance procedure" therein set forth. Consistent with this provision, it has been common practice for the Respondent to promote employees from bargaining unit jobs to positions outside the unit, including supervisory ones . With the Union's manifest approval, such promotions have been pur- suant to the Respondent's policy of promoting from within its employee ranks It has therefore not been unusual prior to the crew chiefs changes' involved in this case for the Respondent to elevate crew chiefs to the then existing nonunit supervisory posi- tions of assistant foreman or foreman.29 On the oc- casions of such promotions, the Union has neither complained about the Respondent's unilateral ac- tion nor questioned its right to make them. By the same token , the Union has never requested bar- gaining or asserted a right to be present when the Respondent interviewed employees for, or offered them, the promotions. However, where a promo- tion was made within the bargaining unit, grievances have been filed by employees, as they had a right to do under the applicable bargaining agreement, because they were not selected in preference to those designated. On the other hand, no grievance has ever been filed protesting a promotion of a unit employee to a nonunit super- visory job. Indeed, there appears to be no dispute that the Union has always recognized the Respon- dent's right to determine the size, makeup, and composition of its supervisory force and the selec- tion and identity of the individuals to fill the super- visory positions. Essentially, its quarrel with the Respondent derives from the adverse impact that the elimination of the crew chiefs in the reor- ganized departments had upon the integrity of the bargaining units and the contractual rights of unit employees to achieve crew chief status. As further evidence of past practice to justify the elimination of crew chiefs from the units, the Respondent relies upon its unilateral promotion of leadmen in 1954 at the Aircraft Divisions and in 1956 at the Industrial Products Division. At those times leadmen, like crew chiefs in the case at bar, were bargaining unit "working supervisors" who were promoted to the then newly created super- visory positions of assistant foremen, outside of the unit. This was done without notification to, or bar- gaining with, the Union and led to no protest by the Union although, as in the case of crew chiefs, the promoted leadmen were not replaced and their jobs were discontinued in the plant production areas. In their new supervisory positions, these employees as- sumed all the duties they formerly performed as leadmen with the exception of physical production work, but with greater responsibility and authority. 5. Negotiations subsequent to the filing of the unfair labor practice charges Following the Union's filing of the unfair labor practice charges herein, Industrial Relations Director Worford received a letter dated April 7, 1967,30 from the Board's Regional Office addressed to him and the Union. The letter noted the writer's interest in having the parties "negotiate a settle- ment of this dispute." To accomplish this, the writer requested that "the Union provide-[him with] a written list of all of the topics about which it desires to bargain (copy to the Company), and that the Company provide ... [him] with a similar list of the topics about which it would be willing to bargain (copy to the Union)." On April 11, 1967, Worford sent a reply to the Regional Office, with a copy to the Union, in which he stated: ... that the company does not have such a list of bargaining topics to submit , as it is the com- pany 's position that it was not and is not under a duty to bargain. However, in the interest of reaching an amicable settlement and without prejudice to our position, if the union has such a list of topics relevant to the effects of the reorganizational changes which have been made, we will accept their list for discussion and bargaining at our regular negotiations which are to begin later this month.31 Although the Union received a copy of this letter, it made no response. Thereafter, negotiations for a new contract covering employees at the Aircraft Divisions were begun. On May 23, at the close of a regular negotiating session , Worford asked Directing " In a number of these instances , the promoted crew chiefs continued to supervise the bargaining unit personnel whom they had previously directed as crew chiefs " All dates relating to negotiations subsequent to the filing of the charges herein relate to 1967 31 This had reference to scheduled negotiations for a new contract at the Aircraft Divisions to supersede the one that was due to expire on June 30, 1967 704 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD Representative Molen whether he was interested in talking about their differences regarding the crew chiefs. Molen refused because it was a matter which was companywide in scope and should be discussed on the district level and not in the con- tract negotiations then in progress. Following the execution of a new contract for the Aircraft Divisions, which became effective June 30, 1967, the Respondent and the Union met at the Union's office on July 6 to consider the crew chief problem. Representing the Union were Molen and Business Representatives Mundy and Blair. Wor- ford and Personnel Managers Powell and Hennum represented the Respondent. At this meeting, their differences were explored. While the Union generally recognized the Respondent's right to promote and to determine its supervisory structure, the Union's principal concern centered about the removal of crew chiefs from the bargaining units and the Respondent's refusal to replace them. It was agreed that efforts to resolve the problem be made on an individual division basis with the per- sonnel manager and the business representative there assigned meeting separately. The next scheduled meeting was on July 17 at the Industrial Products Division which was attended by Molen and Mundy, Special Representative Elam, Worford, and Personnel Manager Doherty. The principal subject discussed was the fact, stressed by company representatives, that there were still group leaders with guidance and direction responsibility in the bargaining unit, who were not affected by the reorganization. Either at this meet- ing or a subsequent one,32 Mundy commented that that fact did not impress him, insisting that the Union was entitled to have a replacement for each promoted crew chief. This meeting lasted about 3 hours. On or about July 20, the parties held an all-day session at the Union's office, at which the situation at the Industrial Products Division appears to have been the principal subject of the discussions. The Union's representatives voiced the view that the Union was entitled to 50 additional employees at that plant to compensate for the loss of unit work incident to the crew chief promotions. Worford, however, placed emphasis on need as the basis for making additions to the unit. These irreconciliable positions obviously created a stumbling block to a resolution of their dispute. In any event, the Respondent proposed to have a survey made at the Industrial Products plant to ascertain future needs for additional jobs there, apparently with compara- ble crew chief functions and pay. Following this meeting, Worford went to the In- dustrial Products plant and arranged with the per- sonnel and works managers to make the promised 22 There is some confusion in the testimony concerning the date of this and other meetings , as well as details . This, however, does not detract from my overall appraisal of the evidence that, as hereafter found, the Respon- study. Such a study was made and revealed that since the reorganization was instituted six crew chiefs had been appointed there. From this study it was also concluded that, based on business projec- tions for January 1, 1968, the Company could ex- pect to increase by that date the number of group leaders which, together with the establishment of another position, would total 30 to 40 employees to meet its anticipated needs. At the next meeting held about July 25 at the Aircraft plant, it was decided during the morning session to hold separate meetings for the Industrial Products and the Aircraft Divisions. Therefore, in the afternoon, Molen and Mundy conferred with Worford and Doherty concerning the Industrial Products Division, and Hennum and Powell con- ferred jointly with Union Business Representatives Westbrook and Blair concerning the Aircraft plants. At the latter meeting, the operation of the reorganized supervision was explored. Hennum agreed to rectify the Union's complaint that shop supervisors were performing production work at the Commercial plant, pointing out that, if this were happening, it would defeat the very purpose of the reorganization. With respect to the Military Division, the Union referred to certain problems in the assembly area which Powell agreed to in- vestigate. Subsequently, this led to the creation of a new job of modification mechanic with group leader duties for the assembly area. About July 27, Worford spoke to Molen on the telephone and advised him that the study made at the Industrial Products plant indicated that possibly there would be room for 30 to 45 jobs of the group leader type with "guide and direct" functions in ex- isting classifications.33 Molen responded favorably to this information since he was looking for 40 to 45 new jobs and requested Worford to submit a written offer. However, on a later occasion dis- agreement between them appeared because of a misunderstanding of their respective positions. It seems that Molen believed that these jobs would be immediately constituted and guaranteed, whereas Worford was thinking in terms of an estimated number of jobs to be established by January 1, 1968, as need for them arose. Following this telephone conversation, Worford had several conversations with Business Represent- ative Blair34 during which Worford offered to settle their differences. These offers were conveyed to Molen who rejected them. On August 31, a 5-hour meeting was held at Molen's office between Molen and Worford at which the .three business representatives and Spe- cial Representative Elam were also present. It was quite apparent that the parties were still deadlocked over the number of new jobs to be im- dent had engaged in good-faith bargaining to resolve the crew chief dispute after the General Counsel brought about the negotiations. This included 1 I crew chiefs holding such jobs in the bargaining unit. Molen was on vacation at that time. CESSNA AIRCRAFT CO. 705 mediately established . It seems that it was at this meeting that Molen first became aware that Wor- ford's position was based on projected need as of January 1, 1968. When questioned about the Com- pany's immediate need, Worford stated that the Company could use 18 new jobs, excluding the ex- isting crew chief jobs. Molen then read the Union's four-point proposal. Worford accepted three of them but not the fourth which dealt with establish- ing a number of new jobs which exceeded the Com- pany's asserted requirements . Further meetings were scheduled for September 7, 11, 13, and 15.35 The September 7 meeting which lasted about 2 hours, was held at the Industrial Products plant. At- tending it were Personnel Manager Doherty, Works Manager Woolsey , Business Representative Mundy, and Special Representative Elam. Here, too, the at- tempt to adjust differences proved to be unsuccess- ful. This meeting was followed by another one at this plant on September 11 which was attended by Molen and Worford, in addition to the foregoing in- dividuals. After reviewing the situation, it was agreed that union and company representatives would make a plant tour the next day to observe the operations . Such a tour was held. On September 14 the parties again met to resume the discussions concerning the Industrial Products plant. This time company representatives men- tioned the possibility of a new unit job evolving from the reorganization in which about 15 em- ployees and "conceivablely ... 40, depending on our growth" could be hired. This elicited Molen's inquiry whether there would be one person occupy- ing this job for each section foreman, thereby in- creasing the number of such jobs to approximately 70. Worford answered no. At one point, Molen un- successfully suggested in connection with that proposition that there might be a reduction in the number of section foremen if the number of the new jobs were increased. The meeting closed with Worford undertaking to put "something" down in writing which the parties "might be able to study and [thereby] resolve ... [their] differences." The next meeting, which was set for September 18 between Worford and Molen was not held because of Worford's inability to attend. However, on or about September 20 he telephoned Molen. In response to Molen 's request for a written offer to resolve their differences relating to the Industrial Products Division, Worford suggested that, before doing so, it might be advisable for the personnel managers and the business representatives at the Aircraft Divisions to confer to adjust their problems, which were viewed as minor compared with those at the Industrial Products plant. Molen agreed and indicated he would so inform the busi- ness representatives . However, these meetings were never held because, as Molen later advised him, the business representatives saw no need for such meetings. In that conversation, Molen also canceled further negotiations but invited Worford to make an offer to settle the matter. In reply, Worford re- peated that the problems at Aircraft Divisions should be resolved first. On September 26, the day before the hearing in this case, the Respondent and the Union again discussed settling their dispute. The Respondent made a proposal with the understanding that, if it were acceptable to the Union, it would be reduced to writing. This proposal embodied, among other things, an agreement to appoint immediately in the Industrial Products Division between 13 to 18 em- ployees to a new higher paid unit position with "guide and direct" functions in the machine depart- ments; to continue to appoint additional crew chiefs when the need arose; and to designate two setup men in the fabrication department at the Commercial Aircraft plant to assist new employees. The Union, however, rejected this proposal. As a consequence, the Respondent never submitted a written proposal. C. Concluding Findings Although conceding that the Respondent's reor- ganization of its departmental and supervisory structure and the promotion of crew chiefs to non- unit supervisory positions were motivated by legiti- mate business considerations, the General Counsel contends that the Respondent breached its statuto- ry bargaining obligation by effectuating the crew chief changes without notice to, or bargaining with, the Union, the employees' exclusive representative. In essence, it is the General Counsel's theory that the removal of crew chiefs from the bargaining units, without their replacement, had a sufficiently adverse impact on the rights of employees, the in- tegrity of the bargaining units, and the Union's representative status as to warrant a finding of violations of Section 8(a)(5) and (1) of the Act. The Respondent, however, vigorously defends its conduct as the exercise of its managerial preroga- tive to determine the supervisory structure that would best serve its interests and to select in- dividuals for promotion to those positions. Indeed, it urges that such rights have long been recognized by the Union. Moreover, it argues that, whatever bargaining rights the Union possessed, the Union waived by failing to make a clear and unequivocal request for negotiations after being notified of the Respondent's contemplated action. In any event, the Respondent asserts that it did bargain in good faith to impasse. For these reasons, it requests dismissal of the consolidated complaint. There can be little question that the Respondent acted well within its rights in realigning its supervi- -" The parties also agreed to a postponement of the hearing herein which was set for September 12 to allow for further negotiations. 354-126 O-LT - 73 - pt. I - 46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion and promoting the crew chiefs to the newly created positions of section foreman and shop su- pervisor, without first consulting the Union. It is well settled that the size and composition of an em- ployer's supervisory force and the identity of in- dividuals to fill such positions, whether by promo- tion or otherwise, are matters falling within the area of management prerogative under our free enter- prise system, provided, however, that its action is not prompted by discriminatory considerations or is in conflict with contractual limitations.36 In fact, the Union has long recognized in its many collective- bargaining agreements with the Respondent that the "right to promote . . . is the sole responsibility of the Company and is subject only to the grievance procedure" therein set forth.37 Accordingly, con- sistent with this contractual acknowledgement of the Respondent's right, it has been the uniform practice at the plants here involved for the Respon- dent to make unilateral promotions to jobs within the bargaining units or to supervisory or other posi- tions outside the units, without prior bargaining or consultation with the Union. Significantly, even the employees' right to grieve has, in practice, only been exercised in cases of promotions within the particular bargaining unit but not where superviso- ry positions were involved. In view of the foregoing, I am not persuaded by the General Counsel's argument that the Respon- dent's right to promote, which the General Counsel and the Union still concede exists, was applicable only to "routine" individual promotions but not to the promotion of the 270 crew chiefs made here pursuant to the Respondent's reorganization plans. Apart from the fact that there is precedent-not determinative, to be sure-for the Respondent's ac- tion in the unilateral promotion of relatively large groups of leadmen from unit jobs to supervisory positions which occurred in 1954 and 1956, I find nothing in the above-quoted contractual provision in anywise restricting the Respondent in the exer- cise of this managerial prerogative. In these circum- stances, I find that the Respondent's appointment of crew chiefs to section foremen and shop super- visors is beyond challenge. However, this recognition of the Respondent's right to promote does not really answer the critical question confronting us. As previously noted, the promoted crew chiefs were not replaced and their jobs, as well as those of crew chiefs who declined the promotion, were eliminated from the bargaining units . Certainly, this necessarily impaired the in- tegrity of the units, limited employee opportunity to " 8 Kono-TV-Mission Telecasting Corporation, 163 NLRB 1005 37 Article V of the agreements in effect at all times material herein " Steere Broadcasting Corporation, 158 NLRB 487, 507, American Bushnes, Inc, 164 NLRB 1055, Dixie Ohio Express Company, 167 NLRB 573, cf Town & Country Manufacturing Company, Inc, 136 NLRB 1022, enfd 316 F 2d 846 (C A 5), Fibreboard Paper Products Corp , 138 NLRB 550, enfd 322 F 2d 411 (C A D C ), affd 379 U S 203 39 American Buslines, Inc , supra achieve the higher paid crew chief position, and af- fected pro tanto the Union's representative status. For this reason, the crew chief changes cannot realistically be treated simply as the exercise of a managerial right to promote, as the Respondent evidently does here. It is generally accepted law that the elimination of jobs from an established bargaining unit, affect- ing as it does employee tenure, job opportunities, and other terms or conditions of employment, is a mandatory subject of collective bargaining.36 For this reason, absent special circumstances, such as an emergency, an employer is under the statutory duty, before taking such action or making any other significant change in terms and conditions of em- ployment, to notify the employees' exclusive representative and to bargain, on request,39 about the matter. Plainly, the employer is not relieved of this duty because he has legitimate economic reasons for making the proposed change.40 On the other hand, it is equally well established that the employer is not required to secure the union's con- sent to effectuate its decision.41 All that the Act requires is that the employer "afford the Union an opportunity to negotiate concerning changes in the [reorganization] plan itself, the manner and timing of the implementation of the plan, and the effects of the changes on employees."42 Conversely, the union, after being apprised of the employer's inten- tion, may not stand by satisfied only to protest the contemplated changes without diligently "attempt- ing to persuade the ... [employer] to alter its deci- sion if it found the decision unacceptable. 1143 On the basis of controlling principles, I conclude, contrary to the Respondent's contention, that it was dutybound to notify and bargain with the Union, if requested, concerning the elimination of crew chiefs from the units resulting from the contem- plated reorganization of plant operations, even though the reorganization was designed to improve efficiency and supervision of rank-and-file em- ployees. I am unable to view the promotion or other clauses in the parties' collective-bargaining agreements as clear and unmistakable waivers of the Union's bargaining rights, as the Respondent suggests.44 Nor can I find sufficient legal excuse for the unilateral discontinuance of crew chief jobs in the two instances in 1954 and 1956 when the lead- men positions were eliminated from the bargaining units without union objection. Nevertheless, I am not persuaded that the General Counsel proved that the Respondent ac- tually defaulted in the performance of its bargain- Dixie Ohio Express Company, supra, p 574 Id Ibid 4' American Buslines, Inc , supra 11 The Timken Roller Bearing Co v N L R B , 325 F 2d 746 (C A 6), cert denied 376 U S 971 Ador Corporation, 150 NLRB 1658, and related cases cited by the Respondent in support of its position are clearly distin- guishable CESSNA AIRCRAFT CO. 707 ing obligation. Without reviewing the evidence detailed above, it is quite apparent that well in ad- vance of the effective dates of the crew chief changes and promotions the Union was fully aware and, indeed, was notified by the Respondent's offi- cials, of the reorganization plans. Yet, instead of responding with a clear and unequivocal request for bargaining, the Union merely objected to the proposed changes on the ground that the Respon- dent had no right to promote the crew chiefs without replacing them in the units. But, as the Board has recently observed in a comparable situa- tion,45 the union must do more; it must "enforce its bargaining rights diligently by attempting to per- suade the Respondent to alter its decision if it found the decision unacceptable." While it is true that the Respondent indicated that its decision was not bargainable, this did not reflect, in the context of all the facts and surrounding circumstances, an uncompromising attitude which foreclosed bargain- ing over the elimination of crew chief jobs from the units , if the Union desired it. It would be un- realistic, indeed, to view the Respondent's state- ment literally and without regard to its actual con- duct. Undeniably, the Respondent undertook to ex- plain at length to the Union's representatives the nature and need for the reorganization, and its pur- pose to improve plant efficiency and supervision, in an effort to justify proceeding with the crew chief changes and promotions, which, incidentally, con- stituted only a small part of the overall reorganiza- tion . Additionally, the Respondent offered to discuss any problems or adverse effects that the Union foresaw would be created by these changes. Notwithstanding the opportunity thus afforded the Union for meaningful bargaining, the Union con- tended itself with challenging the Respondent's right to take the contemplated action and sub- sequently filing the unfair labor practice charges herein . An evaluation of the asserted position taken by union representatives in discussions with com- pany officials, as well as the attitude there dis- played, convinces me that the Union's challenge to the Company's claimed right to make the changes stemmed from the Union's mistaken belief that the Respondent was required to secure its consent be- fore effectuating its plans. It is undoubtedly this as- sumption that accounts for the Union's failure to demand bargaining or to make proposals to counter the Respondent's asserted need for the reorganiza- tion, which would serve as a basis for significant bargaining . Accordingly, I find, under all the facts and circumstances herein, that the Respondent did not breach its statutory bargaining obligation be- fore instituting the crew chief changes. I further find that, after the unfair labor practice charges were filed herein, the Respondent bar- gained in good faith with the Union to impasse con- cerning the discontinuance of the crew chief jobs.46 As shown earlier in this Decision, numerous meetings were held by the parties at which the problems prompting the Respondent's action were discussed and various alternative means for resolv- ing their differences were explored. Moreover, in an earnest effort to reach an amicable solution, the Respondent offered to make various concessions. Notwithstanding the Respondent's demonstrated good faith, the negotiations faltered because of the Union's insistence on securing immediate substan- tial replacement of the eliminated crew chief jobs, while the Respondent took the position that it was prepared to create additional jobs with so-called "guide and direct" functions only where need for such jobs appeared. But the statutory duty does not compel a party "to agree to a proposal or require the making of a concession."47 To be sure, such a position must be honestly maintained without a purpose to frustrate agreement. I find nothing in the record made herein to impugn the Respon- dent's bargaining attitude or conduct .41 In sum , I conclude that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent unilaterally promoted crew chiefs and eliminated such positions from the bar- gaining units in violation of Section 8(a)(5) and (1) of the Act. Accordingly, I recommend dismissal of the consolidated complaint in its entirety. RECOMMENDED ORDER Upon the basis of the foregoing findings and con- clusions, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the consolidated complaint issued herein against the Respondent Cessna Aircraft Company be, and it hereby is, dismissed. " American Bushnes, Inc , supra '8 I reject the General Counsel 's suggestion that no weight should be at- tached to these negotiations because these were efforts to settle the case I find that these were genuine collective -bargaining negotiations com- mendably initiated at the instance of the Regional Office to adjust a labor dispute in the Respondent 's plants 4' Section 8(d) of the Act 4' For this reason, should the Board disagree with my finding that the Respondent did not breach its bargaining obligation prior to the filing of the unfair labor practice charges herein , I would recommend the limited remedial order issued by the Board in Dixie Ohio Express Company, 167 NLRB 573