General Electric Co.

GENERAL ELECTRIC COMPANY 401 General Electric Company and Lodge 1000, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 38-CA-569 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On April 17, 1969, Trial Examiner Lloyd S. Greenidge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support pf the Trial Examiner's Decision and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 briefs, and the entire record in this 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 adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, General Electric Company, Bloomington, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LLOYD S. GREENIDGE, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard at Bloomington, Illinois, on February 6, 1969, pursuant to due notice. The complaint, which was issued on December 11, 1968,' on a charge dated November 5, alleges that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act by unilaterally reinstituting a new job classification and pay rate called Class "C" maintenance without prior notice to the Union as required by Section 8(d) of the Act. Respondent answered denying the refusal to bargain. All parties appeared at the hearing and were represented throughout by counsel or other agent, who were afforded full opportunity to present evidence and contentions, file briefs, and propose findings of fact and conclusions of law. Subsequent to the close of the hearing, briefs were received from the General Counsel and Respondent and have been carefully considered. Upon the entire record,' including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer admits, and I find that, at all times material herein, Respondent has been engaged at its Bloomington, Illinois, plant, the only facility with which we are here concerned, in the manufacture of electrical controls and other goods. In the conduct of its business operations, Respondent purchases and receives goods and materials annually at its Bloomington, Illinois, plant, valued in excess of $50,000, which are transported to the said plant directly from States other than the State of Illinois. It is further alleged, and admitted, and it is hereby found that, by virture of the foregoing, Respondent is now, and at all times material herein has been, an employer within the meaning of Section 2(2), engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and the jurisdictional standards of the Board. Respondent admits, and I find that, Local 1000, International Association of Machinists and Aerospace Workers, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) and the certified bargaining representative of all Respondent's employees in the following unit within the meaning of Section 9(a) and (b) of the Act: All production and maintenance employees employed at the Bloomington, Illinois, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act. II. THE UNFAIR LABOR PRACTICES 'The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and briefs, adequately presents the issues and positions of the parties. 'The Respondent excepted to certain credibility findings made by the Trial Examiner . It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. We find no such basis for disturbing the Trial Examiner's credibility findings in this case. Standard Dry Wall Products. Inc, 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). A. Background - the Bargaining Negotiations Respondent's labor relations at its Bloomington plant have been the subject of recent litigation. On March 3, 1967, the Board issued an Order in General Electric 'Unless otherwise indicated, all dates refer to the year 1968. 'The unopposed motions of the General Counsel and Respondent to correct certain typographical errors in the transcript are hereby granted. 177 NLRB No. 43 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company. Case 38-CA-217, adopting pro forma, in the absence of exceptions, the Decision of Trial Examiner Ivar H. Peterson, dated February 3, 1967. Trial Examiner Peterson found that, on or about June 6, 1966, Respondent, in violation of Section 8(a)(5) and (1), unilaterally instituted an apprenticeship training program for its maintenance employees. Respondent complied with the Board' s Order and discontinued the program. For a number of years, the Respondent has enjoyed contractual relations with the Union, the certified collective-bargaining representative of its production and maintenance employees at the Bloomington plant . The last contract between the parties, executed on October 28, 1966, is effective for a term beginning October 3, 1966, and ending October 26, 1969. Prior to the adoption of the apprenticeship training program , the normal line of progression within the mechanical maintenance department, insofar as here relevant, was from the R-12 classification to the following, in sequence: Class C, R-13 Class B, R-16 Class A, R-19 Upgrading was on the basis of merit and not automatic. When the apprenticeship training program was instituted in June 1966, the plan was for apprentices to graduate into Class C, then to progress to Class B and finally to Class A. However, no one ever graduated from the program during the period of its operation. The eligibility requirements for admission to and participation in the program were more exacting and demanding, in such matters as age, education, discipline, and control, than were the requirements for Class C work . However, it appears from the record that applicants were recruited from among the maintenance employees and that trainees continued to work in the shop doing some of the work formerly done by Class C men. Class C employees, who started as trades helpers, performed some semiskilled chores and advanced to Class B upon demonstration of the requisite skills and aptitude. During the negotiations for the 1966 contract and while the charges in Case 38-CA-217 were still pending, the Company proposed and the Union agreed to eliminate the Class C, R-13 classification which had no employees between June and October . The parties also agreed to establish two new classifications: a factory general with the R-value of 11 and a unit maintenance man with the R-value of 20. It was understood that factory general employees would perform unskilled tasks such as loading and unloading of trucks, moving materials and furniture, and general cleanup work; that they would take instructions from the maintenance foreman and come under the upgrade procedure applicable to the R-12s.3 The unit maintenance classification was apparently created to meet the Union's demands for a higher rate for maintenance employees assertedly because their duties had become more complex. At the negotiation session of October 16, the Union asked whether, in the event the Board found the institution of the apprenticeship program to have been lawful, trainees would become Class B maintenance employees upon graduation and the Company answered that they would progress automatically to Class B. The 'Pursuant to an agreement reached at the October 16 bargaining session, the Company prepared and submitted to the Union , between 60 and 90 days after execution of the contract, written descriptions of all jobs in the R- I I classifications. Union also put the question in reverse and inquired whether the Company would upgrade from the shop in the event the institution of the program was found to have been unlawful. The Company replied that it would give the R-15s and R-14s, in that order, first opportunity to move up. The abolition of Class C and the creation of factory general and unit maintenance man classifications were not, however, conditional upon the outcome of the pending Board proceeding.' Thus, from about October 28, 1966, the date of execution of the current contract, until about March 1967, the date the apprenticeship program was abandoned by the Company, the classifications and activities within the mechanical maintenance department, relevant here, were as follows: factory generals performing unskilled tasks; employees in the apprenticeship training program performing some of the tasks formerly done by Class C men; and Class B, Class A, and unit maintenance man doing the more skilled work. After discontinuance of the training program and until about October 28, 1968, the order of progression was from the R-15 or R-14 classification to Class B, to Class A, and finally to unit maintenance. Between March 1967 and November 1968 two' and possibly three employees were upgraded from R-14 to Class B.6 And, in this period, work which had been done by Class C men and apprentices was performed mainly by Class B employees. On occasions, however, the Company used the factory clericals to do maintenance work despite written and oral protests from the Union. B. Reinstitution of Class C - the Grievance Initiated On October 21, James R. Lathim, a union committeeman, complained to James G. Kehias, the Company's manager, personnel relations, that the R-lls were working out of classification. Kehias reported the complaint to Richard C. Ehrman, the Company's manager of relations, who instructed Kehias to tell Lathim that the Company would take care of the problem and that he would understand the final resolution. Kehias credibly testified that he relayed Ehrman's message to Lathim. Lathim averred that he did not recall but did not deny having received the message. On October 23,' Ehrman summoned shop committee Chairman Coleman H. Smith and Lathim to his office The findings pertaining to the October 16 bargaining negotiations are based on the uncontroverted and credited testimony of Bernard J Grosso, the Union's business representative. 'G T Allison and L S Jackson Grosso testified that one Hale, the third employee, was also upgraded from R-14 to Class B but his name does not appear in the list of such employees included in the written stipulation (G C. Exh.2 ) 'From October 16, 1966, through October 28, 1968, 16 employees were classified as mechanical maintenance Class B with the R-value of 16 (As of the date of the hearing, there were approximately 20 employees in this classification .) Of the said 16 employees and prior to their Class B designation, about 10 had held the classification of mechanical maintenance Class C with the R-value of 13; 2, the classifications of Plastic Com. Pre-Mtx and Set-up Mach . A Illness, respectively, with the R-value of 14, in each instance, 1 and possibly 3 were hired from the outside as Class B; and I had held the title of maintenance helper with R-value of 12 'Smith swore that the meeting occurred on October 21 Ehrman, corroborated by Kehias, testified that it took place on October 23, that he left Bloomington on October 21 to attend a conference in New York that day, and that, before leaving , had instructed Kehias to tell the union committee "to cool it" until he returned From a composite reading of the testimony, I am persuaded that the recollection of the Company's witnesses is more accurate. GENERAL ELECTRIC COMPANY 403 where, in the presence of Kehias, Ehrman announced that the Company had decided to reinstate Class C maintenance effective at once and that the reinstitution of the classification would solve all the problems with respect to the R- IIs. Ehrman then gave the Union representatives job descriptions for Classes A, B, and C. This was the first time the Company had prepared job descriptions for these classifications. Moreover, such descriptions had been excluded from the ones the Company had agreed to furnish the Union during the 1966 negotiations. Either Smith or Lathim asked where the Company would get employees for the reinstituted classification and Ehrman replied that vacancies would be filled by upgrading employees in the R-12 category. The Union also inquired about the ultimate fate of the R-lls but there was no discussion of the subject. Ehrman did not, at that time, tell the Union that, in reinstituting Class C, the Company was exercising its rights under the 1966 contract, nor did he assert that the classification was being reinstated at the request of the Union. At the next meeting held October 24, the union spokesman expressed concern that the reinstatement of Class C might lead to the downgrading of the R-11s. John Neal, the Company's placement specialist, replied that such an occurrence was highly unlikely as the Company had more vacancies than it was able to fill. The parties met again the next day to discuss anew the Class C and R-11 classifications. Kehias opened the meeting by stating that he thought the problem had been resolved at the meeting of October 23 and John Chapman, the Company's manager of engineering, remarked that the Union had agreed to reinstate Class C. To the latter comment, Smith replied that the Union had not agreed or disagreed. At the Union's request a meeting was arranged for October 28. At the October 28 meeting, the Company "proposed" the reinstatement of Class C,' the employment of four employees in the reinstated classification, and the reduction in size of the factory general complement from six to two employees. The Union reminded the Company that it had stated, during the 1966 negotiations, that the R-l4s and R-l5s would be upgraded to Class B and then went on to say that the reinstatement of Class C changed the established upgrade procedure by substituting Class C for the R-14 and R-15 classifications as the training group for the mechanical maintenance employees. The Company replied that there was no other way to build a competent maintenance work force than by going through Class C and acknowledged that, henceforth, upgrading to Class B would come from holders of Class C rather than R-l4 and R-15 designations. The Union then complained that, in reestablishing Class C the Company was taking away the employees' rights and the Company rejoined that the employees have no voice in the matter because article XXVI of the 1966 contract gives it the right to eliminate unnecessary jobs and to establish those it deems essential for its operation. Ehrman testified he told the Union that the Company was reinstating Class C because the Union had requested it. However, the statement is not reflected in the Company's minutes of the October 28 meeting and does not appear in Ehrman's affidavit to the Officer-in-Charge dated November 22, nor in the statement of Attorney Stanley B. Frenze, who appears to be house counsel for the Respondent, dated November 15. Further, Kehias, who also attended the meeting, testified that he could not recall any such statement by Ehrman. Accordingly, I do not credit this testimony of Ehrman. In the end, the union committee withdrew and caucused for about 5 minutes. When it returned, a spokesman announced that the Union opposed the reinstitution of the Class C, R-13 classification. As shown above, the reinstitution of Class C was effective from October 23, the date the Company's decision was first proclaimed. Since then the Company has reclassified six employees as mechanical maintenance Class C all of whom had held various job designations with the R-value of 12. Three were upgraded on November 4, the fourth on December 16, the fifth on January 13, 1969, and the sixth on January 20.' Class C men are now doing the work formerly done by Class B and factory generals from March 1967 until November 1968. Thus, at all times since October 23, the line of progression within the mechanical maintenance department has been, and was at the time of the hearing, from R-12 to Class C, to Class B, to Class A, to unit maintenance. The 1966 contract contains a grievance provision under which a three-step procedure is established. On November 19, Shop Chairman Smith filed a grievance in which the Union charged that the Company violated the contract by reinstituting Class C. The Union contended that the classification was bargained out of the contract during the 1966 negotiations and could not be reimposed without the consent of all parties. At the first step meeting held the same day, the Company took the position that the reinstatement of Class C was in accordance with the provisions of section 1(b), article III," and section 2, article XXVI," of the 1966 contract. At the second step meeting held November 26, the Company declared that the decision to reestablish Class C was, inter alia, in conformance with "past practice and contractual provisions." And, at the third step session on December 23, the Company restated the reasons it had advanced earlier to support its position adding that it has had the right (to create new job classifications) "in all agreements since 1960" and again cited section 2, article XXVI. After the grievance was finally rejected at the third step, the Union requested arbitration but, when the Company refused to go along, did not pursue the matter. 'The Company's minutes of the October 28 meeting speak in terms of a proposal . The word is a misnomer as the decision to reinstate the classification had already been made and, in fact, was announced by Ehrman at the October 23 meeting. 'No employee was reclassified to Class C during the 2-year period prior to November 4. "This sec reads as follows: The Union recognizes, except as otherwise stated in this Agreement, that the Company retains the exclusive right to manage its business, including (but not limited to) the right to determine the methods and means by which its operations are to be carried on, to direct the work force and to conduct its operation in a safe and effective manner "This sec. provides All of the hourly rated job classifications (occupational titles) and the applicable job rates, the progression schedules for the job classifications included in the bargaining unit shall be listed in Exhibit "B" attached hereto and made a part hereof. The Union shall be immediately informed of any additions or eliminations of any job classifications (occupational titles), and any change in a job rate for any of the listed job classifications and the reasons therefore The Company will upon request give the Union information relating to the methods and techniques being used in calculating incentive standards When difficulty is experienced by an employee or a group in meeting a time standard and no employee or group has previously met this standard, the operation planning will be reviewed by the Company upon the request of either the employee or the Steward in the unit. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discussion and Concluding Findings The complaint alleges in substance that Respondent's action in unilaterally reinstituting the Class C maintenance classification constitutes a contract modification requiring compliance, not here met, with the notice and other premodification conditions commanded by Section 8(d) of the Act and was thereby violative of Section 8(a)(5). Alternatively, it is alleged that, even absent a finding of contract modification, Respondent has violated and is violating its obligation to bargain in goon faith by the unilateral reinstatement of Class C. The Respondent denies these allegations. Section 8(a)(5) imposes upon an employer the duty to bargain collectively with the majority representative of its employees. This duty is breached when the employer without notice to or bargaining with the majority representative, unilaterally changes wages, hours, or other terms and conditions of employment. N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736. Such a change is, in practical effect, an act in derogation of an employer' s bargaining obligation under Section 8(d) and the statutory rights of the bargaining representative and therefore violates Section 8(a)(5). Reduced to basic essentials , the case for the General Counsel presents simply a contract modification made unilaterally in midterm without prior notice to the Union. More specifically the General Counsel sought to prove that, by unilaterally reinstating Class C and making it the training group for the maintenance employees, Respondent changed the agreed order of progression in the maintenance department since such action bars R-14 and R-15 employees from advancing to Class B and higher classifications . Without more, this is enough to establish a prima facie violation of the statutory obligation to bargain , absent proof of a valid defense. It is true, of course, that the 1966 contract contains no specific reference to the deletion of Class C. The deletion of the classification was, however, the subject of negotiations and it followed an agreement by the parties later relied on by the Union in executing the contract. i2 Thus, the agreement to delete Class C was, in effect, included in the contract as an aspect of its wage rates through section 2, article XXVI, which provides, inter alia, for the listing of all job classifications, rates, and progression schedules." Against what appears to be a formidable case for the General Counsel, Respondent presents the argument that the reinstitution of Class C was, in fact, suggested by officials of the Union. The argument lacks merit. Ehrman testified that, sometime in late September or early October 1967 and again in February 1968, Allen E. Gibson" and James R. Lathim, a shop committee member, appeared in his office where they asked when the Company was going to solve the problem of the R-lls and suggested that it reinstate Class C and get rid of the R-lls. Ehrman replied that he would consider the suggestion . Corroborating Ehrman's testimony in certain particulars, Gibson credibly testified that he alone asked Ehrman to reinstate Class C because of recurring complaints about the R-lls doing Class C work." However, notwithstanding my credibility finding that Gibson requested the reinstatement of Class C, I am not persuaded that his further testimony, that in October 1968 "Cf Leeds & Northrup Company. 162 NLRB 987; The Press Company. Incorporated, 121 NLRB 976. "Cf C & S Industries, Inc, 158 NLRB 454 Lathim told him: "Al we've got what we were both after. Dick is going to put the R-13 back in again," was truthful. As Judge Learned Hand aptly said in N.L.R.B. v. Universal Camera Corporation.:' It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. Having found that Gibson requested the reinstatement of Class C, a question arises whether in so doing he was speaking for himself or for the Union. Gibson admitted that the idea was his own and that the bargaining committee did not authorize him to make the request. And, according to the credited and uncontroverted testimony of Smith, who succeeded Gibson as shop chairman, Gibson never reported the request to the committee. Smith also testified, credibly and without contradiction, that two members of the five-member committee often discussed and resolved minor problems with management. However, Smith continued to say that if the problem was a serious one and involved a matter of importance the subunit reported back to the full committee. Certainly, a proposed modification of a contract can not be characterized as minor or unimportant. In view of the foregoing, I find that Gibson's request was personal, there being no showing that he was expressing the Union's position. Moreover, even if construed as a union request, the request was repudiated by the Union in March when Gibson was ousted as shop chairman for dealing independently with management. Assuming for the purpose of argument, however, that the request reflected the considered judgment of the Union, it does not follow that the decision to reinstate Class C, made some 12 to 8 months thereafter and after Gibson had severed all ties with the Union, was motivated by the Union's request. In this connection the following facts are illuminating: Ehrman testified that he made the decision to reinstate Class C and, in the Company's minutes of the October 28 meeting, Ehrman frankly acknowledged that the decision was his alone. Ehrman also testified that the classification was reinstated because the Company needed the lower grade as a training category for the maintenance employees since it no longer had the apprenticeship training program "Gibson was president of the Local and chairman of its shop committee until about March 11 when he was deposed as chairman because of a propensity to deal separately with management In April or May, Gibson became a salaried employee outside the bargaining unit. "Called by the General Counsel after Ehrman had testified as a 43(b) witness but before Gibson took the stand, Lathim first declared that he did not recall going to Ehrman's office with Gibson and asking that Class C be reinstated However, when later recalled as a rebuttal witness , Lathim suddenly remembered that the October 1967 and February 1968 meetings did not take place. Asked to explain how his memory could have been jolted to the point of total recall in less than 2 hours, Lathim stated that when Gibson gave the dates of the meetings he remembered that he was never in Ehrman's office with Gibson at anytime while they served on the committee. I do not credit the above testimony of Lathun for the following reasons: (1) first he was uncertain about going to Ehrman's office with Gibson, (2) then, after Gibson gave the dates of the meetings, Lathim suddenly remembered that the meetings never occurred , and (3) the latter testimony is contradicted by the record which shows that the dates were first given by Ehrman in Lathim's presence. In view of Lathim's uncertainty and the record contradiction of his testimony as well as demeanor, I regard Lathim 's testimony as generally unworthy of reliability and I credit it only when it conforms with other credited testimony or constitutes an admission against the Union's interest. "179 F.2d 749, 754 (C.A. 2), reversed on other grounds 340 U S.474. GENERAL ELECTRIC COMPANY 405 and he admitted having told the shop committee that Class C would not have been dropped if he had been in Bloomington in 1966. In his affidavit to the Officer-in-Charge dated November 22, Ehrman said: The reason for the reinstatement of the "C" classification is that it is needed as an entry for inexperienced people to learn Maintenance. The reason it was deleted in the previous contract was that we expected to have an Apprenticeship Maintenance Program continued without the entrance grade. Ehrman testified that, at the time he gave the affidavit, he told the Board's agent that the Union had requested the reinstatement of Class C. The statement does not appear in the affidavit, prepared in the presence of Respondent's attorney, and I do not accept this testimony. In Respondent's statement of its position to the Officer-in-Charge dated November 15, Attorney Stanley B. Frenze said: It is the Employer's position in summary that it had the clear, unequivocal, and unilateral right to add the Maintenance Class C, R-13 job classification to the list of classifications appearing at Exhibit B of the current contract subject only to its obligation to notify the union of the action it was taking and the reason therefor, which obligation the Employer fully discharged. In its answers to the Union' s written grievance about the reinstitution of Class C, Respondent justified its action on the basis of the 1966 contract and past practices. In view of the foregoing and the record as a whole, it is abundantly evident, and I find, that, in reinstating Class C, Respondent was motivated by its own self interest and that the Union's request, as assumed, was, at best, an afterthought. By way of further defense, Respondent argues that it had the legal right under the 1966 contract to reinstate the classification and, in its brief, points to section 2, article XXVI, quoted above, to support its position. In amplification, Respondent argues that, properly construed, section 2, article XXVI, permits it to add or eliminate job classifications, at will, provided that, prior thereto, it notifies and offers to discuss the change with the Union and that neither negotiations nor an agreement is required. Finally, Respondent argues that the dispute is essentially a matter of contract interpretation and asserts that, in any event, it acted in good faith. It is not disputed that Respondent has, in the past, added and deleted job classifications. But, according to the credited and uncontradicted testimony of Grosso and Smith, such changes have only taken place after the acquisition of new machinery or the adoption of new methods of operation at which times the Union is notified. Grosso, who had been shop steward for about 6 years, also averred that no job dropped during negotiations was ever reinstated and, if created by agreement, was not later deleted unilaterally by the Company. It is plainly evident and I find that Respondent's claim that it had the legal right under section 2, article XXVI, to alter the contract unilaterally is groundless . But, the cited provision aside, it is also clear, from an examination of the contract in full, that there is no reservation to the Respondent of the right to act unilaterally therein" or waiver by the Union of its statutory rights." I so find. "See Clifton Precision Products Division, Litton Precision Products, Inc, 156 NLRB 555, 563; Smith Cabinet Manufacturing Company, Inc., 147 NLRB 1506, 1508-09. Respondent earnestly contends, however, that the issue here is basically one of contract interpretation and that the Board should not recast it into an unfair labor practice. The contention is devoid of merit. It is well settled that the Board is not foreclosed from deciding an unfair labor practice question simply because it becomes necessary to construe a contract to determine whether a union has ceded power to an employer to act unilaterally" or whether an employer has contractually reserved the right to do so.30 Lastly, Respondent stresses its good faith but the claim is questioned when it is recalled that Respondent bypassed the Union and avoided bargaining by taking unilateral action without prior consultation. Moreover, a unilateral change is sufficient without more to constitute a violation of Section 8(a)(5) even in the absence of a showing of subjective bad faith.2' Nor is there merit to the contention that Respondent discharged its bargaining obligation by notifying and discussing the change with the Union. Notice to the Union of a fait accompli did not remove the initial violation inherent in Respondent's unilateral action. See C & S Industries, Inc., supra. More specifically, Ehrman's announcement at the October 23 meeting of Respondent's decision to reinstate Class C effective at once can not qualify as good-faith bargaining. The meeting was an empty formality as Respondent had already crossed the Rubicon and the Union's protests, voiced at the meeting of October 28, were but futile attempts to stem the tide. Good faith requires, among other things, that negotiations precede not, as here, follow changes in conditions of employment. But, even assuming a bona fide offer to bargain, Respondent would not thereafter have been free to institute a change in contract terms without the consent of the Union. See C & S Industries, Inc., supra. This is so because Section 8(d) bars the Respondent from taking unilateral action to modify a contract where, as here, the change is not made in compliance with the requirements of that section. For all the reasons set forth above, I find that the Respondent has failed to overcome the prima facie case. Accordingly, I further find and conclude that Respondent violated Section 8(a)(5) and (1) of the Act by (1) unilaterally reinstating Class C and (2) unilaterally modifying the terms of the 1966 contract without complying with the provisions of Section 8(d) of the Act.22 ,111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. "See Clifton Precision Products Division, supra N.L.R.B. v. Perkins Machine Company, 326 F.2d 488 (C.A. 1), enfg 141 NLRB 98, The Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746 (C.A. 6), cert. denied 376 U S. 971. "N.L R B. v. C & C Plywood Corporation, 385 U S. 421. "Smith Cabinet Manufacturing Company, Inc., supra. "N.L.R B. v. Katz, supra. "See The Standard Oil Company (Ohio), 174 NLRB No. 33; The Scam Instrument Corporation. 163 NLRB 284; Huttig Sash and Door Company. Incorporated, 154 NLRB 811; C & S Industries, Inc, supra; Smith Cabinet Manufacturing Company, Inc., supra. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom. There remains to be considered the nature of the affirmative remedy to be recommended bearing in mind that the remedy should be adopted to the situation which calls for redress. The General Counsel requests that the Respondent be ordered (1) to rescind Class C maintenance, (2) "to promote the appropriate employees who would have been chosen for Class B at the time individuals were promoted to Class C," and (3) to reimburse such employees for any loss in pay they may have suffered as a result of the unlawful reinstitution of the classification. It is the Board's customary policy to direct a respondent to restore the status quo ante where respondent has taken unlawful unilateral action to the detriment of its employees.=' Accordingly, I grant the affirmative relief requested by the General Counsel. I shall therefore recommend that Respondent revoke and rescind, retroactively to October 23, its unilateral decision reinstating Class C maintenance. I shall also recommend that Respondent make whole its employees deprived of a promotion to Class B maintenance, if any, by promoting and paying them an amount equal to the difference between their rate of pay at the time a promotion to Class B would have been made, but for the unilateral reinstitution of Class C, and the Class B, R-16 rate, plus interest at 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: Conclusions of Law 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1000, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Respondent at its Bloomington, Illinois, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has been, and now is, the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally reinstituting the Class C maintenance classification , on or about October 23, 1968, the Respondent changed the existing terms and conditions of employment of the employees in the aforesaid unit without first complying with the requirements of Section 8(d) of the Act. 6. By its acts as set forth in Conclusion 5, above, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. "See Beacon Journal Publishing Co.. 173 NLRB No 181 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, General Electric Company, Bloomington, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Lodge 1000, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of its employees in the unit found appropriate herein. (b) Making unilateral changes in wages, rates of pay, or other terms and conditions of employment of its employees in the above-described appropriate unit during the term of the contract with the above-named Union without first reaching agreement with the Union concerning such changes. (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Forthwith revoke and rescind, retroactively to October 23, 1968, the unilateral decision reinstituting the Class C maintenance classification which Respondent, on October 23, 1968, announced and thereafter placed into effect. (b) Make whole the eligible employees in the appropriate unit for any loss they may have suffered by reason of Respondent's unilateral action in reinstituting the Class C maintenance classification, in the manner set forth in the section of this Decision entitled "The Remedy." (c) 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 Recommended Order. (d) Post at its plant in Bloomington, Illinois, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Officer-in-Charge of Subregion 38, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Officer-in-Charge of Subregion 38, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Officer-in-Charge of Subregion 38, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " GENERAL ELECTRIC COMPANY 407 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Lodge 1000, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of our employees in the bargaining unit described below. WE WILL NOT unilaterally institute changes in wages, hours, or other terms and conditions of employment of the employees in the bargaining unit described below, during the term of any collective -bargaining contract covering said employees, without first consulting with and bargaining with said Union concerning such changes and reaching agreement on any modification of the terms of the contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL, and do hereby, revoke and rescind, retroactively to October 23, 1968, our unilateral decision reinstituting the Class C maintenance classification which we announced on October 23, 1968, and thereafter unilaterally placed into effect. WE WILL make whole the eligible employees in the appropriate unit for any loss they may have suffered by reason of our unilateral reinstitution of the Class C maintenance classification. The bargaining unit is: All production and maintenance employees employed at our Bloomington, Illinois, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. Dated By GENERAL ELECTRIC COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Subregional Office, Fourth Floor, Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 309-673-9061, Extension 282.