Howmet Corp.

HOWMET CORPORATION Howmet Corporation, Austenal Microcast Division and Pattern, Mold and Model Makers' Association of South Bend and Vicinity, affiliated with Pattern Makers' League of North America , AFL-CIO. Case 25-CA-4225 June 13, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 26, 1972, Trial Examiner Sidney J. Barban issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed exceptions and a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions with the following modifications. 1. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) and (3) of the Act by transferring to maintenance department employees after the election certain work which had been done by toolroom employees prior to the advent of the Union in July 1970. We find merit in the General Counsel's exception to the Trial Examin- er's failure to find additionally that Respondent discriminatorily reassigned wax injection mold repair and maintenance work from toolroom employees to wax department setup men. As the Trial Examiner found, prior to the October 15 representation election, toolroom employees were responsible for removing accumulated wax from molds. In fact, Respondent forbade wax department setup men from engaging in such work, except in simple situations, for fear of their damaging the tools. To implement this policy, Respondent always had toolroom employees on duty whenever the wax injection department was operating, including the third shift and Saturdays. However, after the i Respondent has 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 prepon- derance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings Nor do we find merit in Respondent's contention that because the Trial Examiner generally discredited the Employer 's witnesses and credited the General Counsel's witnesses , his credibility resolutions are erroneous or attended by bias or prejudice N LR B v Pittsburgh Steamship 471 election, when the wax injection department resumed operating on Saturdays in January 1971 the toolroom remained shut. Also, on other occasions after the union campaign began in the toolroom, wax depart- ment setup men were told by Toolroom Foreman Wideman to repair their molds instead of having toolroom men do the work. The tasks involved had formerly been performed by toolmen. We find from the above that Respondent discrimi- nated against toolroom employees in violation of Section 8(a)(1) and (3) of the Act by assigning wax mold repair and maintenance work which had been performed by them prior to the advent of the Union to wax department setup men. 2. The Trial Examiner found, and we agree, that after the toolroom unit employees selected the Union as their bargaining representative Respondent sub- stantially altered in quantity and kind its subcon- tracting practices with respect to toolroom work, thereby affecting toolroom employment in violation of Section 8(a)(1) and (3) of the Act. See Westing- house Electric Corporation, 150 NLRB 1574; Walker Company, 183 NLRB No. 136. The Trial Examiner also found that by "unilateral- ly changing terms and conditions of employment" Respondent violated Section 8(a)(1) and (5) of the Act. We agree. However, to assure that there is no confusion regarding the scope of this finding we shall clarify the Trial Examiner's Conclusions of Law to indicate that Respondent violated Section 8(a)(1) and (5) of the Act by, inter alia, laying off toolroom employees, subcontracting toolroom work in a manner different in quantity and kind from that done previously, and assigning toolroom work to nonunit employees all without notice to the Union or prior opportunity to bargain about those matters. See Shurtenda Steaks, Inc., 161 NLRB 957, 971; Hospice of Alverne, 195 NLRB No. 60.2 3. Finally, we find merit in the General Counsel's exception to the Trial Examiner's apparently inad- vertent failure to extend the certification year in light of Respondent's refusal to bargain in good faith with the Union. Accordingly, we shall add to the Trial Examiner's remedy the requirement that the initial period of certification shall be construed as begin- ning on the date Respondent commences bargaining in good faith with the Union. Co, 337 U.S 656 2 Contrary to our dissenting colleague's assertion, we have not relied "solely on the ground that the amount of subcontracting was increased over amounts consistent with the past practice of Respondent " in adopting the Trial Examiner's findings of 8(a)(I), (3), and (5) violations arising from the subcontracting of toolroom work after the Union was selected to represent toolroom employees . The essence of the Trial Examiner's rationale, with which we agree, is that after the election Respondent altered its past practices by subcontracting work that theretofore had been done, or could have been performed, in the toolroom 197 NLRB No. 91 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW that those laid off were discriminatorily selected, but solely on the ground that the amount of subcontract- ing was deliberately, and for retaliatory purposes, increased over amounts consistent with the past practice of the Respondent. I must dissent, for the reason that the evidence does not support such a factual finding. There is undisputed documentary evidence in the record that the dollar volume of toolroom subcontracting did not increase during the period following the arrival of the Union. The election occurred on October 15, 1970. Three employees were laid off on October 23, 1970. Other than two half-day "layoffs," no further layoffs occurred until January 22, 1971, when two additional employees were laid off. One further layoff of one employee occurred on February 12, 1971. In November, the first month immediately follow- ing the election and the first three layoffs, the dollar volume of subcontracting was about 25 percent below the October volume. In February 1971, the month immediately following the January 22 layoffs, the dollar volume of subcontracting was 10 percent down from the January figures. Only in March did the volume of subcontracting dramatically increase, and the increased business which gave rise to this increase also caused Respon- dent to begin to call back its regular employees shortly thereafter. Other comparisons also show that the dollar volume of subcontracting in every month except March 1971 was less than in every month prior to the advent of the Union except May and June of 1969. These facts destroy, in my view, the factual underpinnings of the Trial Examiner's and my colleagues' decision, and I would dismiss the allega- tions of the complaint which allege a discriminatory layoff. I would further dismiss the allegations of an 8(a)(5) violation arising out of the subcontracting, for I can find no increase in the amount thereof and therefore no unilateral change by Respondent. I would further dismiss the 8(a)(5) allegations relating to the course of bargaining. The Trial Examiner here relies on Respondent's failure to make a wage counterproposal until the Union further lowered its wage demands. The timing and content of counterproposals is a matter for parties themselves to determine, unless the overall course of bargaining shows an intent to avoid agreement and frustrate bargaining. The evidence here, in my opinion, fails to show such an intent on the part of Respondent. Its avoidance of a counteroffer on wages until the Union produced an "in-the-ball-park" figure had produced some modification of the Union's original "out-in-left-field" demand for a $1.47-per-hour increase. Respondent apparently hoped that some Delete Conclusion of Law 6 from the Trial Examiner's Decision and substitute therefor the following: 6. By its unilateral actions in laying off toolroom employees, subcontracting toolroom work in a manner different in quantity and kind from that done previously, and assigning toolroom work to nonunit employees, all without notification to the Union or adequate opportunity to bargain with respect to those actions before they were effected; by advising unit employees that they could not be represented by their shop captains during working hours when personnel action was taken with respect to unit employees; and by otherwise refusing and failing to bargain with the Union in good faith with respect to the terms and conditions of employment of unit employees, as set forth herein, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. ADDITIONAL REMEDY In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as- beginning on the date Respondent commences to bargain' in good faith with the Union as the recognized bargaining representative in the appropri- ate unit . See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 329 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Howmet Corporation, Austenal Microcast Division, LaPorte, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. CHAIRMAN MILLER, dissenting: The Trial Examiner and my colleagues have found an 8(a)(1), (3), and (5) violation arising out of a layoff of toolroom employees shortly after the Union's victory in an election. They do so not on the ground HOWMET CORPORATION additional reticence on its part would produce further reductions so that what it regarded as a realistic company offer might be deemed acceptable by the union negotiators. It misgauged the situation, and its failure to make an offer caused at least a temporary deadlock in negotiations. Such a miscalculation frequently does, as it did here, interrupt the progress of negotiations. Often such an event will produce a strike. ' It may evidence a mistake in judgment on the part of the negotiator, but it does not evidence, in my view, a violation of our Act. And finally, I would not join my colleagues in substituting their judgment for Respondent's and thus opining on which of Respondent's own employ- ees was entitled to remove wax from molds or to repair them. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: This matter was heard at LaPorte, Indiana, on July 19, 20, 21, 22, 23 and August 3, 4, and 5, 1971. The complaint, issued on May 25, 1971, as amended at the hearing, based upon charges filed on March 26 and April 26, 1971, alleges that the above- named Respondent violated the Act by (1) warning and threatening employees with reprisal because of their activities on behalf of the above-named Charging Party, herein called the Union, (2) soliciting employees to campaign against the Union, (3) laying off certain employees, (4) demoting one employee, (5) changing certain working conditions previously in effect, (6) subcon- tracting work previously performed by its employees, all because of employee activities in behalf of the Union, and (7) by various acts and conduct, refusing and failing to bargain in good faith with the Union, which had been certified by the Board as the collective-bargaining repre- sentative of its employees in an appropriate unit. Respondent's answer denies the commission of any unfair labor practices, but admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board ($50,000 annual interstate inflow and outflow), and to support a finding that the Union is a labor, organization within the meaning of the Act.' Upon the entire record in this case, from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following: i Respondent's request for a bill of particulars, which was denied by another Trial Examiner before the hearing , was renewed at the hearing specifically with respect to the refusal-to-bargain allegation. This was denied by the Trial Examiner, who suggested that, upon request, reasonable time would be afforded Respondent to prepare for cross-examination of witnesses , to secure evidence, and to prepare Respondent 's defense, if needed There is no contention that Respondent was not afforded FINDINGS AND CONCLUSIONS A. Introduction 473 Respondent has been engaged for several years at LaPorte, Indiana, in the business of producing metal castings for the aircraft, aerospace, and related industries. Other plants of the parent corporation, which has offices at Dover, Delaware, performing similar or related functions, are located at Dover and in Michigan (the latter referred to as the Misco Division). The casting process at LaPorte commences with the injection of wax into a mold or die. The wax, after being extracted from the mold, establishes the configuration for a ceramic form into which metal is poured and from which the casting is made. These castings, which may be quite complex, must be produced to rather close tolerances. Considerable care is therefore required in the design, production, and maintenance of the dies, molds, gages, and equipment used in producing the castings. The toolroom at LaPorte, which is the operation primarily involved here, has been utilized in the past in the design, construction, maintenance and repair of molds, dies, gages, and equipment used in the casting process, though some of this work may be done by outside contractors, as described hereinafter, because of lack of equipment in the toolroom, the capacity or availability of toolroom employees, or for other reasons. Union activity among the toolroom employees began in July 1970.2 At the time there were approximately 17 employees in the toolroom. Within a short time, apparently all of these signed union authorization cards. By letter dated July 18, 1970, the Union requested recognition and bargaining in a unit of toolroom workers, which Respon- dent rejected, asserting doubts as to the Union's majority status and the appropriateness of the unit. After a hearing held on August 26, upon a representation petition filed by the Union on August 3, the Regional Director of the Board issued a Decision and Direction of Election, dated September 17, finding the following unit appropriate for the purposes of collective bargaining within the meaning of the Act: "All tool and mold maker employees, including tool and mold makers A, B, C, and D, of the [Respondent] at its LaPorte, Indiana, plant, including the group leader, but excluding all office clerical employees, guards, profes- sional employees and supervisors as defined by the Act, and all other employees." Respondent concedes that this unit is appropriate within the meaning of the Act. At the election conducted by the Board on October 15, 13 employees voted for the Union, 3 against, with I ballot challenged, and on October 25, the Union was certified by the Acting Regional Director as the bargaining representa- tive of the unit. During the period material to this matter, the following were supervisors or agents of Respondent within the meaning of the Act, with respect to the operation of the reasonable opportunities to meet the General Counsel's case, but it was contended that as a result of the denial of the bill of particulars Respondent is still uninformed as to the General Counsel's theory as to Respondent's obligation to employees who were laid off and allegedly deprived of work or work opportunities . I find this without merit 2 All dates hereinafter are in 1970 unless otherwise noted. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toolroom : Joseph L. Mallardi, general manager of the plant ; Harold B . Barker, manager of the personnel department at LaPorte; Roy E. Wahistrom , manager of product engineering ; Lynn A. Pease, product engineer and supervisor of the toolroom ; Robert Wideman , foreman of the toolroom. B. Respondent's Opposition to the Union; Alleged Violation of Employee Rights Respondent evidenced strong opposition to the unioniza- tion of its employees and made vigorous efforts to induce its employees to vote against the Union, as the communi- cations in the record from Respondent to its employees show. Respondent's reaction to the vote for the Union was that the employees had "voted to surrender their individual rights and to risk their futures with a union." Pease told toolroom employee Richard A. Berker, as the latter credibly testified, that Pease "felt sick, was very disap- pointed on the way the election turned out and that he could not understand it." About the middle of August 1970, the employees in the toolroom met at a parking lot outside the plant and elected Laddie L. Elliott to be shop captain (employee representa- tive), as well as selecting other employees to represent them. The next day, Lynn Pease asked toolroom employee Richard A. Berker if he had been part of the group that met at the parking lot and, when Berker said he had been, Pease replied that he was "disappointed and surprised, he thought [Berker] had more sense." Though counsel at one point appeared to be directing Pease's testimony to this incident, he did not seem to recall it . Berker's testimony is credited. About a week or 10 days after the meeting on the parking lot, Foreman Wideman called toolroom employee Cloyce Sempsrote into his office and asked Sempsrote why the employees had done "this." Wideman said "that it hurt him, made him feel bad. . . . that he would be glad when this thing was out of there, that he felt sure that the fellows had been misled." Wideman did not testify and Sempsrote is credited. Prior to August 26, Laddie Elliott met with Pease and Roy Wahistrom in the shop cafeteria and informed them, in an effort to avoid ill feelings , that the men had signed union cards and sought representation because of certain problems with their working conditions and their concern over being included I in a production type union. Wahl- strom's comment was that he was disappointed that the men had taken this action, that "we had been a closeknit group," that the employees should have brought their problems to him. Wahlstrom further stated that the men did not have to worry about the rest of the employees "going union," that Respondent took the position that the men had been misled, and "that they were going to fight the union all the way." Elliott's account of this incident is credited. Pease's testimony concerning this conversation is largely consistent with the above. Wahlstrom did not testify. About the same time as the above, Pease stopped Elliott one morning and commented on recent gatherings he had noted and, according to Elliott, said that he would "take a dim view" if union talk was not eliminated from these gatherings . Pease seemed a little uncertain as to this incident but associated it with an occasion that he advised Elliott to distribute union literature on his own time. In the circumstances, and because Elliott made a strong impres- sion as a straightforward, conscientious, and honest witness, his testimony as to this incident is credited. The above incidents occurring in August 1970, more than 6 months prior to the filing of the charges in this matter, may not be considered as violations of the Act because of the bar of Section 10(b) of the Act, and they are herein set forth as part of the context in which the events discussed hereinafter took place. The Respondent is alleged to have interfered with, restrained, or coerced its employees in violation of the Act by the following incidents: I: On October 1, toolroom employee John G. Mischler, who had been on sick leave since June 30, returned to work, parttime, with Respondent. According to Mischler, when he returned, Mallardi and Pease invited him into Pease's office and, as they walked in , Wahlstrom entered and the following occurred: ". . . Mr. Mallardi told me that the men in the tool room had been talking unioniza- tion and that they were different than they were when I became sick and he told me that if the union was voted in that the tool room would be gradually closed. And Mr. Wahlstrom spoke up and said that the company had informed him several years back that the tool room was costing too much money but that he had sold them on keeping it. But if the union did get in the tool room, they would be closed." Pease denied that these statements were made in his presence . Mallardi denied making or heanng such statements . Wahlstrom, as noted above, did not testify. Both General Counsel and the Respondent advert to the significance of this testimony. I have considered it with particular care. Mischler appeared sincere and truthful, though aggrieved that Respondent had deprived him of work after the vote for the Union, as described hereinafter. Pease was unimpressive in respect to his testimony as to conversations in which he had been involved. In regard to this conversation, it was only with some reluctance that he agreed, on cross-examination, that a discussion of the Union was involved in the conversation. It is moreover plausible that Respondent's management would take this occasion to discuss their attitude toward the Union with Mischler, a long service employee who had been absent from the plant for months. Indeed , it was just at this time that Respondent began its intensive letter and speech campaign to discourage the employees from voting for the Union in the election. Nor are the remarks attributed by Mischler to Mallardi and Wahlstrom inconsistent with the character of the arguments used by management prior to the election to discourage adherence to the Union. Thus, Mallardi, in his speech to the employees the day before the election, after emphasizing the job security and freedom from layoff enjoyed by the toolroom employees in the past, pointed out, as an argument for voting against the Union, that toolroom employees elsewhere had lost their employ- ment by reason of the shutdown of their department shortly after they had voted for the Union. From the impression made by the witnesses at the heanng and my HOWMET CORPORATION consideration of the record, I credit Mischler's account of the conversation set forth above. 2. About October 8, when employee Berker was in Pease's office on another matter, the latter asked Berker to sit down a moment and the following occurred according to Berker's credited testimony: "[H ]e wanted to know if I would talk to some of the younger men in the shop and try to explain to them that a union wouldn't be good for our tool room. And I told him I didn't want to do this, and he wanted to know why. And I answered that all the men in the tool room were old enough to make up their own mind and I wouldn't try to sway them one way or the other... . He mentioned that if we did have a union that it would be bad for all the men in the tool room."3 3. The night before the election, Wahlstrom, manager of product engineering, told employee Richard R. Boraw- ski that he knew of shops in the area in which men had made (less money after came in than they did before' and the Union had examined their records.4 ' Conclusions It is found that Respondent, by the activities of Mallardi and Wahlstrom in threatening that the toolroom would be closed if the Union were selected as the bargaining representative of the men, and by the activities of Pease in requesting Becker to dissuade other employees from adherence in the Union (see Bisso Towboat Company, Inc., 192 NLRB No. 116), violated Section 8(a)(1) of the Act. Inasmuch as other alleged violations of this section of the Act set forth in paragraph 5 of the complaint as amended, would be merely cumulative, if proved, they will not be considered and it shall be recommended that they be dismissed. C. Alleged Discriminatory Treatment of Employees 1. Layoffs Although in past years there had been substantial layoffs of production and maintenance employees at the LaPorte plant, the toolroom employees had never been laid off. During the preelection campaign up until the day before the election, management of Respondent emphasized this fact as demonstrating the job security enjoyed by the toolroom without union representation. According to Personnel Manager Barker, Respondent had a policy of retaining these men on a permanent basis because they were skilled and it was hard to replace them. During prior slow periods, the toolroom employees were utilized in 3 Pease denied that he asked Berker to tell the men that a union was not good He states that during a conversation in August with Berker, whom he understood was antiunion , Berker was complaining that the younger men did not know what they were getting into with the Union, which was assertedly upsetting to Berker and he (Pease) suggested to Berker that if it would ease his conscience, Berker should talk to the younger men. This is not credited 4 Borawski also testified, without contradiction, that after the election Foreman Wideman stated that "he sure hates to see the Union get in there because he feels that they will go down to two men on a shift " This was not alleged and has not been considered as a separate violation of the Act The testimony is credited and has been considered in connection with Respondent's layoff of employees considered hereinafter. 475 maintenance and housekeeping functions they were nor- mally too busy to get around to. Prior to 1967, the complement of employees in the toolroom was about 14. At that time, there were com- plaints that Respondent had to have better tooling to eliminate so much rework time in the rest of the operation. Thereafter, Respondent began to build up the number of toolroom workers. It would appear that in October 1970, there were about 17 employees in the toolroom, the highest number Elliott could remember.5 On October 23, Respondent laid off toolroom employees John Seese, Stephen Ellis, and Herman Williamson. In November 1970, toolmaker Wolfgang Sorg was laid off for one-half day, allegedly because he had run out of work. On January 21, 1971, employee Eugene Manering was sent home for one-half day allegedly because he ran out of work.6 On January 22, 1971, employees Sorg and Victor Zandanel were laid off. And on February 12, 1971, toolroom employee Roderick Stevenson was laid off. Although Respondent agrees that these layoffs were intended to be only temporary, the personnel cards of Seese, Sorg, Ellis, and Stevenson were marked by Pease (and in some cases also by Foreman Wideman) that these employees were not to be rehired. During this period, General Counsel contends, employee Mischler was also deprived of work as discussed hereinafter. During the year 1970, Respondent's business was affected by the decline in the aircraft and aerospace industries and Respondent begain substantial layoffs of production and maintenance employees. According to Respondent's Exhibit 13, employment in that area experi- enced a sharp decline from August 1970 until the first part of 1971. Product Engineer Pease testified that in June 1970 Respondent employed more than 850 production and maintenance employees, which was reduced to about 550 in July 1971. It was asserted that whereas in previous downturns Respondent had been able to forecast an improvement in business within a foreseeable period, such forecast was not possible even at the time of the hearing. Plant Manager Mallardi asserted three reasons for the toolroom layoffs: First, the severe drop in business and lack of ability to forecast a pickup in the near future; second, the large number of employees in the toolroom; and last, because in this instance, in contrast to the past, attrition in the toolroom, accommodating numbers to the work available, did not occur. This, he thought, was because'the 1 tooling i industry , generally 'was, "down." During the layoff, two employees, Sorg and Zandanel, were able to obtain work elsewhere only on the basis that they obtain papers from Respondent that they had S Elliott identified 19 toolmakers in addition to himself, 2 of whom, Brown and Diesel, had terminated in late summer . Among the remaining 17, Sorg had just returned from military leave , Mischler hadjust returned from sick leave; and Drews was either on sick leave or recently returned In any event, Drews was not expected to continue long in the toolroom. Approximately 17 were listed as eligible to vote in the election on October 15, 1970 Respondent's chart showing employment by months (Resp Exh 13) seeming to show 14 toolroom employees for that month is somewhat misleading 6 There is evidence that there was work Manering could have done Sorg appears to have been occupied with housekeeping chores on the occasion he was sent home 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminated their employment with Respondent . Respon- dent was advised that this was the basis upon which they quit. At least one toolroom employee, Borawski, quit in January 1971; two others, Block and Watt, had terminated their employment by the date of the hearing; one, Drews, at the time of the hearing was on sick leave. By May 3, 1971, Respondent had recalled Seese, Stevenson, and Williamson and they were back at work. Respondent has never sought to recall Sorg, Zandanel, or Ellis. John Mischler presents a special case . He went on sick leave on June 30, 1970. During his illness, he was informed by management that when he secured a partial release from his doctor there would be plenty of clerical work he could do at the plant until he was fully recovered. Upon obtaining such a release from the doctor , Mischler returned to work on October 1, at which time he was again assured that there would be plenty of clerical work for him to do until he recovered . He voted in the election. Five days later he was informed that Respondent had run out of paper work for him to do. Mischler was and is convinced that there was other such work he could have done. Mischler was returned to sick leave status and resumed receiving insurance benefits provided by Respondent until he was released by his doctor to return to work full time. When notified of this, Respondent put Mischler back to work on a full-time-basis on November 9, 1970. Conclusions With reference to Mischler, notwithstanding that the circumstances of the release of Mischler immediately after the election raise a suspicion that he was returned to work in an effort to influence the result and was let go after the results turned out unfavorably, the General Counsel has clearly failed to establish by a preponderance of probative evidence that Mischler was discriminated against. It will be recommended that the allegations of the complaint alleging that his return to sick leave status on October 20 was discriminatory be dismissed. With respect to the layoffs, though Respondent presents a cogent prima facie basis for the reduction of employees during the period with which we are here concerned, there are also very strong indications that the layoffs in the toolroom were discrinunatorily motivated: (1) Respondent was strongly opposed to unionization of the toolroom and showed clear resentment that the Union was selected; (2) notwithstanding other previous layoffs among production and maintenance employees, the toolroom employees were never reduced (during one such production and mainte- nance layoff, the toolroom was actually increased) in order to preserve their skills; (3) on October 14, when Respon- dent was manifestly fully aware of its serious economic and personnel situation , Plant Manager Mallardi continued to assure the toolroom employees of their job security, pointing to the fact that there had never been any layoffs in the toolroom ; (4) Respondent threatened the toolroom employees that the toolroom would be shut down gradual- ly if the Union were selected ; (5) a week after the election the first toolroom employees were laid off without advance notice to the Union ; (6) the policy thereafter adopted of sending toolroom employees home at noon for one-half day, not satisfactorily explained , appears an abnormal and harassing tactic ; (7) notwithstanding Mallardi 's claim that there was no attrition in the toolroom, the record shows continuing terminations of toolroom employees , so that by May 1971, Respondent had recalled all but three laid-off toolroom employees and was advertising in several papers for Class A toolmakers; (8) the concealed intent not to rehire some of the laid-off employees although the layoff was assertedly only temporary. Furthermore, as discussed hereinafter , these layoffs of toolroom personnel were taking place at a time when Respondent was transferring work traditionally done by the toolroom to other employees , subcontracting work of a character normally performed in the toolroom more extensively than ever before, and transferring tools out of the toolroom affecting the efficiency of the toolroom employees. In light of all of the facts , and in particular Respondent's past history of never laying off toolroom employees, and Mallardi's assurances that the employees had nothing to fear with respect to job security without a Union, I am convinced that if the toolroom employees had not voted for the Union, there would have been no layoffs. It is therefore found that Respondent, by its layoffs of Seese, Ellis, Williamson, Sorg, Manering, Zandanel, and Steven- son, as set forth above, discriminated against these employees, discouraging membership in and activities on behalf of the Union in violation of Section 8(a)(1) and (3) of the Act. 2. Subcontracting A major portion of the evidence received at the hearing involved this issue. The General Counsel contends that Respondent discriminated against the toolroom employees by subcontracting to outside vendors work previously done by toolroom employees, thus depriving them of the work, and also violated the rights of the employees by failing to notify the Union or afford it an opportunity to bargain on this subject prior to such unilateral action . Respondent contends that the subcontracting after the advent of the Union merely continued the practices established prior to the Union, without change. In particular , Respondent claims that because of business conditions in the tooling industry generally, it suddenly found it was able to do much of this work more economically outside the tool- room. Respondent argues "Respondent had always sub- contracted, as indicated in Exhibit 19A, B, C, and D, when more favorable time and cost conditions prevailed outside their toolroom." In addition, Respondent asserts that an analysis of the subcontracting, by months, shows this action could have had little or no impact on toolroom employment. Analysis of the evidence has been unusually difficult. More than 300 individual subcontracts (referred to as purchase orders) with supporting papers attached were introduced into evidence by the General Counsel (many, with Respondent's permission , were numbered as Respon- dent's Exhibits to match similar numbers of Respondent's summaries of , material in those purchase ' orders). Respondent's past practice with respect to subcontract- ing is not easy to pin down. Respondent's arguments would HOWMET CORPORATION indicate that a substantial amount of managerial discretion was involved in this process, which presents a difficult basis for establishing objective criteria. On the whole record, I believe that the following, gleaned mostly from the testimony of Elliott, establish the basic elements of Respondent's policy before the advent of the Union: Complicated molds were constructed on the outside (though several-years before some of these had been made in the shop). The construction of complex gages was also normally subcontracted. Simpler molds, sometimes re- ferred to as crucible molds, apparently, were made in the toolroom. Repair and maintenance of these items, particu- larly gages, were done almost exclusively by toolroom employees. Some work was sent out because the toolroom did not have the machinery or equipment involved. However, some of this involved a measure of discretion on Respondent's part. Thus, in the case of large quantity items, such as knockout punches, the toolroom had equipment which could produce these items and had done so. Just prior to the advent of the Union, however, Respondent had begun to send these items out where they could be done more economically on special equipment not available in the toolroom. Also, whereas Respondent normally sent out work requiring work on electrical discharge machines (EDM), or requiring jig bore, or jig grinding, Respondent had equipment on which the latter types of work could be done in certain instances. In addition, on occasion Respondent would send out work which the toolroom was capable of doing, but for which toolroom personnel was not available at the time, or design time was not available,7 or the item was a repeat of work previously done on the outside. An analysis of the subcontracts relied upon by Respon- dent for the years 1968, 1969, and 1970 to July 21 (the date Respondent was notified of the union interest in the toolroom) shows the following (based primarily on the cross-examination of Pease as to those items): (1) 1970 (to July 21)-of approximately 34 purchase orders, 7 were sent out by other departments and did not involve traditional toolroom work; 14 involved new work not traditionally done in the toolroom; 7 involved special equipment; 2 involved repeat work not normally done in the toolroom; 3 were sent out because toolroom personnel was not available; and 1 was sent out on the basis that the work could be done cheaper and better on the outside. (2) 1969-of approximately 77 purchase orders, 12 were sent out by other departments and not traditionally toolroom work; 35 involved new work not traditionally done in the toolroom; 17 involved special equipment; 1 involved repeat work; 3 involved work not ordinarily, or only occasionally, done in the toolroom; and 9 were sent out because of time or other considerations. (3) 1968-of approximately 39 purchase orders, 26 were r Respondent testified that since its design department is also engaged in other activities, design time is not always available On the other hand, employee witnesses testified that they were accustomed to doing designs of tools at their benches, so it may well be that subcontracting for this purpose is another indication that toolroom personnel were not available at the time 8 Analysis of the 47 purchase orders for 1967, also referred to by Respondent as showing its past practices with respect to subcontracting, is omitted as unnecessary. 477 new work not traditionally done in the toolroom; 9 involved special machinery; 3 involved considerations of availability of personnel, design time, speed, and cost; I apparently involved a repeat operation.8 After the inception of the union organizational cam- paign, and particularly beginning in August 1970, the toolroom employees began to note and make records of increased numbers of tools which were being subcontract- ed, including items which had rarely been sent out in the past, like the repair of gages. I was particularly impressed with the credibility of the employee witnesses with respect to these observations, especially that of Elliott who was a very careful and objective witness. Their testimony leads to the conclusion that there was a marked turnabout in subcontracting of work that the toolroom had done in the past, or was capable of performing. Thus, employee Sempsrote testified, with respect to jig and fixture work for production, that during the 2 years prior to the election (in October), about 75 to 80 percent was done in the toolroom. From October 1970 to April 1971, it was Sempsrote's observation that this percentage was reversed, with 75 to 85 percent of such work being sent out. It was indicated at the hearing that Respondent, in response to a subpena, made available to General Counsel all of its purchase orders for 1970 and 1971 to the time of the hearing. Elliott and some other employees scrutinized these and discarded those which had traditionally not been done in the toolroom, or for which the toolroom did not have the equipment or the capacity to perform. The remainder, dating from July 22 (after Respondent received notice of the Union's interest) to June 1971, were offered in evidence by the General Counsel. Elliott identified all but two as work which, to his personal knowledge, had normally been done by the toolroom in the past or was within its capability.9 Careful consideration of the testimo- ny and the exhibits leads me to believe that this list of purchase orders (G.C. Exh. 25) is something less than fully complete. Elliott testified that there were several items on the lists of subcontracted items made by the employees that could not be accounted for in the purchase orders. In addition, in my search for purchase orders against which to check the assertion that gages had been sent out to Mayer Tool and Die Co. for repair (which repair normally would have been done in the toolroom), in August, I could find none listed in General Counsel's Exh. 25 (or in the supporting purchase orders). But in a separate list of purchase orders for 1970 submitted by Respondent (Resp. Exh. 19A), there are two such orders for gage repairs listed, dated August 11, 1970,- and September 1, 1970. There are 108 purchase orders listed in General Coun- sel's Exhibit 25 (from July 22, 1970, through June 16, 1971), some of which contain multiple items for work by the subcontractor. 10 Respondent's asserted reasons for 9 At the suggestion of the Trial Examiner, a large part of Elliott's testimony in this regard was accomplished by coding a list of the purchase orders submitted in evidence by the General Counsel Similarly, Respon- dent later submitted its won , differently arranged list of those same purchase orders coded to show its asserted reasons for subcontracting these items The same coding was used to indicate Respondent 's asserted reasons for subcontracting items in 1967, 1968, 1969, and 1970 to July 22 10 There were actually 109 purchase orders submitted as General (Continued) 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these subcontracts, as given by Product Engineer Pease, may be summarized as follows: Of the 109 purchase orders sent out after July 21, Pease asserts that 56 involved special equipment (some of these assertedly also involved consideration of time, expense, or other factors); that 26 involved factors of time and expense (as well as other factors such as design time and correction of error of outside contractor); that 8 involved correction of error of outside contractors ; ii that 13 involved repeats of prior orders; that 6 were sent out because there were no toolroom employees available (one also involved design time); that 2 involved new molds in whole or part; and that I involved the contracting out by the maintenance department of work on contract wheels (as discussed hereinafter, a toolroom function); 3 others were sent out for reasons not easily classified or simply unexplained (G.C. Exhs. l7oo, 13i, 17ff). The 109 purchase orders by date are as follows: 2 in July (after July 21); 4 in August; 6 in September; 5 in October; 6 in November; 2 in December; 7 in January ( eliminating G.C. 20c); 12 in February; 35 in March; 13 in April; 11 in May; and 6 in June. Conclusions Analysis of the subcontracts made in the various years reveals a totally inexplicable increase in such subcontract- ing after July 21, 1970, when Respondent was notified of the Union's interest. Thus, when, by Respondent's conten- tion, its business was good, in 1967, 1968, 1969, and the first part of 1970 (in early 1970, Mallardi advised the employees that 1970 would be a good year), Respondent was required to subcontract toolroom work, at a maxi- mum, only 47 times in 1967, 39 times in 1968, 77 times in 1969, and 34 times in 1970 to July 22;12 but, in the 11 months beginning July 22, at a time when Respondent asserts that its production was precipitously declining, its subcontracting of toolroom work shot up to a figure in excess of 109.13 Respondent contends that 56 of these 109 purchase -orders involved special machinery used by the vendor not available in Respondent's toolroom, or about 51 percent of the total. In 1968, by comparison, special equipment was assertedly involved in about 22 percent and in 1969 and early 1970 in about 26 percent (or less) of the total subcontracts. These circumstances and the record as a Counsel's exhibits The purchase order received as G C Exh 22B is not listed on G C Exh 25. Resp Exh 18 (the counterpart of G C Exh 25) lists this purchase order, as well as one purchase order (G C Exh 20C) which is not in evidence , having been withdrawn without objection from Respon- dent 11 It is noted, however, as the testimony of employee Seese shows, Respondent also utilized the toolroom to correct the errors of outside vendors 12 However, if we should subtract those subcontracts which Pease admitted involved new molds and the work of other departments, not traditionally toolroom work-which would make the lists for prior years more nearly comparable to the lists for 7/21/70-66/30/71-the subcontracts number 13 for 1968, 30 for 1969, and 13 for 1970 to July 21 13 By comparison with the figures in In 12 above, only 2 of these 109 purchase orders are asserted to have involved new molds and I was sent out by another department, and in that case the work contracted out was on contact wheels, apparently the work traditionally done by the toolroom. 14 In the case of knockout punches , Respondent had made these in the toolroom previously and had also sent them out They could be done more whole lead to the conclusion that these asserted reasons for the various subcontracts tell less than the complete story, and are thus not entitled to full credence. Thus, Elliott's testimony indicates that those purchases, which on their face required special machinery or had not been done in the toolroom previously, had been eliminated from the 109 purchase orders in the first instance. Further, there is evidence that in some instances, as in the case of jig bore, jig grinding, and other processes, Respondent may exercise a discretion as to whether to send the work out or not.14 There is also indication that in the past, even though special equipment was used on the tool by the vendor, the toolroom employees were used to perform other work on the tool thereafter, rather than having the vendor do all the work. I credit the employees' testimony that from observa- tion of the tools sent out and returned during this period, and from consideration of the purchase orders, the bulk of the work subcontracted was of a character that had been done or could have been'done in the toolroom. Respondent argues, nevertheless, that analysis of the subcontracting by months, as well as by purpose, shows that the subcontracting had little or no relationship with or impact upon the layoffs.15 However, reference to the course of subcontracting in 1970 and 1971 by months indicates that such subcontracting increased remarkably in 1971 after Respondent had reduced its toolroom comple- ment by approximately 35 percent, which leads to the conclusion that Respondent was able to lay off these employees only because of the availability of subcontrac- tors to do the work. Conversely, the fact that so many toolroom employees were on layoff undoubtedly required Respondent to substantially increase its subcontracting to keep up with the work. Thus, from February to June 1971, there were 77 such contracts. It is noted in particular that, after the layoffs, factors of time, cost, and availability of personnel (including design time) were asserted to be involved in at least 27 subcon- tracts made, 16 whereas prior to that time such factors are asserted to have been involved in only three cases in 1970,17 nine times in 1969, and three times in 1968, indicating a substantial change in Respondent's handling of toolroom work, caused at least in part, by shortages of personnel in the toolroom. Respondent asserts that it could send out more work during this period because changed conditions on the outside made it possible, for the first time efficiently on production machinery outside It is also noted that although EDM was involved in only three subcontracts in 1969, two in 1970 to July 22, and apparently none in 1968, Pease asserts that EDM was involved in 20 instances in the I I months from July 21, 1970, to June 30, 1971 Inasmuch as the evidence shows that the items subcontracted during this period did not differ substantially from the work previously done in the toolroom, the figures indicate that Respondent had certainly altered its past practices with respect to the processes by which such work was to be done 15 Respondent contends that five subcontracts in October, six in November, two in December, 1970, and eight [actually 7 ]m January 1971 (all largely asserted to have been subcontracted because of vendor special equipment or because they were repeat orders) "demonstrates that little, if any work or any consequence was subcontracted at the time of the layoffs in October, January and February " 16 G C Exhs 14a, 16f, 17a, l7b, l7d, l7e, 17h, 171, 17m, 17n, 17s, 17t, 17u, 17x, 177, 17bb, 17cc, 17dd, l7pp, 17rr, l7ss, 17tt, 17uu, l7vv, l7ww, and 18e 17 G C Exhs 18a, 18b, and 18c HOWMET CORPORATION in Respondent's history, to subcontract such work eco- nomically. This, in and of itself, manifests the changed quantity and character of Respondent's subcontracting practices dunng the period in question. Whereas Respon- dent previously subcontracted occasionally for these purposes, while the toolroom was fully employed, here such contracting out was substantially increased while unit employees were unemployed. Nor is Respondent privileged to unilaterally eliminate employees from the unit, even temporarily, merely because Respondent feels that it may be economic to subcontract their work. See, e.g., Fibre- board Paper Corp., v. N.L.R.B., 379 U.S. 203; N.L.R.B. v. Exchange Parts Co, 339 F.2d 829 (C A 5). In summary, the facts are convincing that Respondent substantially altered in quantity and kind its subcontract- ing practices with respect to toolroom work during the period in issue here, directly affecting employment in the toolroom, constituting a discriminatory change with respect to the terms and conditions of employment as well as the hire and tenure of toolroom employees, and thereby discouraged membership in and activities on behalf of the Union in violation of Section 8(a)(1) and (3) of the Act. Other aspects of Respondent's subcontracting practices will be considered hereinafter in connection with the Respondent's alleged refusal to bargain in violation of the Act. 3. Alleged transfer of work 1. Prior to the representation election, toolroom em- ployees regularly did certain maintenance work on contact wheels, hot plates, and idler pulleys. In the past, such work was done by the maintenance department only in the case of emergency or when the toolroom was fully occupied. After the election, this work was regularly assigned to maintenance employees outside the toolroom unit and was frequently performed by maintenance employees in the toolroom. On occasion, toolroom employees were directed to set up machines for maintenance men to do this work. This change in assignment was made without consultation with the Union. These facts do not seem to be seriously disputed by Respondent, which in its brief points mainly to the fact that only a minor amount of work was involved and that the work was not skilled (Br. pp. 24-25). On at least one occasion during this period, the maintenance department appears to have subcontracted work on contact wheels. (see G.C. Exh. 16g). 2. Elliott testified to two occasions after the election on which Respondent had maintenance employees move or perform other functions on toolroom equipment which had previously been the sole responsibility of the toolroom. This occurred after Elliott suggested to management that toolroom employees could be used for this work rather than be laid off, and was done without consultation with the Union. 3. Considerable testimony was adduced concerning the contention that after the advent of the Union, setup men in the wax department were increasingly engaged in cleaning wax out of molds, a toolroom function. There is no 18 Because Respondent was having difficulty with wax department employees attempting to make repairs on the third shift, during the period 479 question but that prior to the designation of the Union, Respondent was insistent that molds be cleaned of accumulated wax by toolroom employees only, except in simple situations, because of the value of the molds and the necessity that they not be damaged. Setup men in the wax department had been so instructed. The toolroom employ- ees had reason to belieye that these instructions were being disregarded after the Union was designated, and the record shows that toolroom complaints to management on this score were not well received. However, although suspi- cious, the evidence does not establish that Respondent had changed its policy against wax department employees attempting repair or maintenance of molds. Conclusions On the basis of the above and the entire record it is found that by the transfer of toolroom work to the maintenance department as set forth in paragraphs 1 and 2 above, Respondent discriminated against the toolroom employees in regard to their hire, tenure, terms and conditions of employment, discouraging membership in and activities on behalf of the Union in violation of Section 8(a)(I) and (3) of the Act. However, it is found that the facts do not establish such discrimination in respect to work done by the wax department as set forth in paragraph 3 above. 4. Alleged loss of overtime Prior to the election, toolroom employees frequently worked on Saturday, particularly when the wax depart- ment worked. Respondent's policy was to have toolroom employees on duty when the wax department was operating so that skilled employees would be available to repair tools as needed.18 Daily overtime (other than Saturday) was irregular, occurring when there was a "hot job" to do. Immediately after the election, Saturday overtime for the toolroom employees ceased until March 1971, after which such overtime occurred occasionally. In November 1970, the toolroom employees, after 2 nights of overtime work, protested against working overtime while toolroom employees were on layoff and no further daily overtime was worked until after March 1971. However, the evidence is that the wax department also did not work on Saturdays from October to January. It is not clear what Saturdays the wax department worked thereafter. Conclusions I find that on the basis of the whole record, the General Counsel has failed to establish by a preponderance of the evidence that Respondent discriminatonly deprived the toolroom employees of overtime work. 5. Removal of tools and equipment In mid-November 1970, Respondent suddenly and without explanation moved several pieces of machinery and equipment from the toolroom. The employees' testimony is that these items were useful and were used in with which we are concerned Respondent set up a third shift in the toolroom 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their work. The testimony from Respondent's witnesses was that these items were not greatly used and duplicated functions performed by other equipment in the toolroom. Also, about the same time, Respondent without explana- tion began taking up workbenches in the toolroom, which were first stacked and then removed from the toolroom. Some employees who were displaced were moved to other work benches. Respondent now explains that the removal of the benches was necessary to provide space for storage of certain materials which were thereafter stored in the toolroom. Considered in isolation these instances appear to be merely examples of rather poor labor relations, not necessarily unfair labor practices. In context, however, they give further evidence of a hardened attitude toward the toolroom employees generally after the election. About this same time, Respondent was also taking a rather hard line with respect to union participation in discussion of employee grievances as discussed hereinafter. With respect to the removal of the machinery and equipment, moreover, I have been unable to find any evidence that Respondent had a need to move this equipment (which apparently had been in the toolroom for a considerable period) at this time, and the testimony referred to by Respondent in its brief (p. 24) gives none, with the possible exception of the assertion that one machine needed repair.19 The testimony referred to by Respondent makes it clear that Respondent knew, at the very least, that the removal of this equipment, or some of it, would cause the employees in the toolroom some difficulty in the efficient performance of their work. Conclusions In the absence of substantial evidence that these actions on Respondent's part had any real effect upon the employees' employment, I find that they did not constitute unfair labor practices. I do consider that the manner in which these actions were undertaken, without notice or explanation to the Union or the employees, fits into the pattern of Respondent's hostility to the employees and the Union after the election of the Union as the employees' bargaining representative. As the record shows, Respon- dent has made little or no effort to advise or consult with the Union prior to any action taken affecting the bargaining unit since the Union has been certified as bargaining agent, and, as discussed hereinafter, sought to discourage and impede union discussion of employee grievances. 6. The demotion of Elliott Laddie Elliott has been employed by Respondent as a class A toolmaker since 1960. He was appointed a group leader in the toolroom in 1968 at a premium rate of pay. He was thereafter requested to accept a supervisory position in the toolroom, but refused. From time to time, particularly early 1970, Elliott objected to making formal reports on other employees in the toolroom, and Respon- dent dropped these requests. As testified by Elliott, "From 19 Barker testified that, in response to complaints about the removal of these tools and requests for information by the Union during negotiations, we explained that the machine tools hadn't been removed for a the beginning I told [Pease] I didn't want to be reporting on other employees, that the way I understood a group leader's job was not in that manner, that I was to help the employees in the toolroom to get the information they needed . . . to lead jobs and not to be spying on the members in there. And this is what he asked me to do and I did refuse to do that." Notwithstanding this, there is no evidence that Respondent was displeased with Elliott's performance as a group leader before the advent of the Union. Indeed, at the representation hearing, Respondent took the position that Elliott was a supervisor who should be excluded from the unit. The Regional Director held otherwise. However, even before the appearance of the Union, Respondent had appointed Wideman as an additional group leader and, by June 1, 1970, had designated him as a foreman in the toolroom, assertedly to relieve Elliott of some of his responsibilities and give Elliott more time to work at the bench. Elliott states that Wideman gradually took over his group leader activities, and that after the Union came in Pease made it clear to Elliott that he was to concern himself with his own assigned work and not the work of others. However, it was not until January 8, 1971, that Elliott was informed that he was being reduced from group leader at a cut of 10 cents an hour in pay. Wahlstrom told Elliott that this was not a reflection upon his work, but was an economic move. Elliott, as previously noted, was a leader in the union movement, and in August was elected shop captain (i.e., steward) by the unit employees, which caused Respondent to express its displeasure. Elliott was vigorous in his efforts to preserve unit work for the toolroom, protesting Respondent's subcontracting and objecting to work done by maintenance and setup men which he considered toolroom work. His efforts drew sharp criticism by Respondent. Elliott further protested the layoff of tool- room employees in the circumstances. He also made vigorous efforts to secure permission from Respondent to represent employees at the time when Respondent was taking personnel action against them, as discussed here- inafter. He was rebuffed by Respondent's management. He was also an active member of the Union's bargaining committee in the negotiations for a collective-bargaining contract, which was unsuccessful, as noted hereinafter. Conclusions General Counsel contends that on this record, Elliott was clearly "singled out for special discriminatory treatment." Respondent, which put on no evidence as to the reason for its action, asserts that Elliott's testimony itself shows that he was no longer acting as a group leader, and it was therefore justified in cutting his pay. Respondent's logic might be easier to understand if the timing of its action had been more appropriate. On the basis of Elliott's testimony, which Respondent accepts on this point, Elliott ceased to function as a group leader, at Respondent's direction, about August 1970, when he became shop captain. Respondent does not explain why it took until January specific purpose and as to that exact position we weren't aware of where they would go." Immediately thereafter, Barker stated that Respondent told the Union that the tools "were earmarked for the Misco Company." HOWMET CORPORATION 481 1971 to cut his pay. Nor does Respondent offer any reason for relieving Elliott of his duties as a group leader in August. Nevertheless, since the change in Elliott's status occurred in August, more than 6 months before the filing of the first charge in this case, it cannot be found to have been an unfair labor practice. While I am unable to account for Respondent's delay in adjusting his wage rate, since Respondent had no obligation to pay Elliott for a job which he was not performing, I do not find that it was discriminatory for Respondent to reduce his rate of pay. In the context of this case, however, I am convinced that this unilateral action, without prior discussion with the employ- ees' representative, was taken with an intent to, and did, disparage the Union as the bargaining representative, as further discussed hereinafter in relation to the allegation that Respondent refused to bargain in violation of the Act. For the reasons stated, nevertheless, it is found that the demotion and cut in`pay of Elliott did not violate Section 8(a)(3) of the Act, and it will be recommended that this allegation of the complaint be dismissed. D. Alleged Refusal to Bargain In his complaint, General Counsel alleges, as explicated at the hearing, that Respondent bargained in bad faith with the Union during eight specified bargaining sessions and, in particular, by refusing throughout the bargaining to make a specific wage offer or proposal and by (a) unilaterally subcontracting work, (b) unilaterally assigning unit work to nonunit employees, (c) refusing to permit union representatives to be present while unit employees were being reprimanded or disciplined, (d) encouraging unit employees to bargain individually with Respondent by dealing with them concerning grievances during worktime while denying union representatives the right to be present, and (e) unilaterally reducing overtime assignments to unit employees. In addition to these allegations, in his brief General Counsel argues that Respondent. refused to bargain in violation of the Act by unilaterally laying off unit employees and returning Mischler to sick leave, by demoting and reducing the pay of Elliott, and by warning Elliott concerning certain of his activities protesting alleged transfer of unit work to other employees. 1. Contract negotiations Respondent and the Union met for collective bargaining at the Holiday Inn in LaPorte. So far as this record shows there is no contention that Respondent refused to meet at times and places which were reasonable in the circum- stances. Testimony concerning the course of bargaining was given by Damas and Elliott who attended the 20 As will be noted, Respondent maintained this position throughout the negotiations, although the basis of this assertion was never detailed The Union's original request was for a rate of $5 35 an hour for class A toolmakers (called simply "Mold Maker" in the proposal) effective November 1, 1970, with an increase of 30 cents effective May I and 60 cents effective November I (the proposed contract expiring April 30, 1972) Since this was described as a $1 47 package it would seem, according to the Union, that the current rate for this classification was then $4 78 Mallardi, in his preelection speech said this classification was then receiving from $4 53 to $4 78 an hour It should be noted that the union proposal also had provisions for cost-of- living increases negotiations on behalf of the Union, and by Barker who attended as the chief representative of Respondent. The following summary of the negotiations is largely a synthesis of the testimony given. To the extent that there is conflict among the witnesses, I credit Damas, who, from observation, and after study of the record, I consider reliable. Based upon his demeanor, and upon the record, I do not have the same confidence in the testimony of Barker and accept it only where uncontradicted and consistent with the findings and conclusions made herein. The parties first met on November 6, 1970, at which time the Union presented and read its contract proposals to Respondent, which responded that the Union's wage proposal was excessive, 20 but asserted that the proposals would be submitted to management for study. Though details are lacking, it is clear that the layoff of three unit employees, which had taken place on October 23, was discussed. Respondent at this meeting also stated that the shop captain would not be permitted to represent unit employees in their dealings with management during the shop captain's working hours. The second bargaining session took place on November 16, 1970. The parties discussed the Union's proposal and certain contract clauses submitted by Respondent. There was no agreement on any proposal. There was objection by Respondent to the fact that the Union's proposal provided wage rates for only the classifications of "group leader" and "mold maker," with an apprenticeship program leading up to moldmaker, whereas Respondent's practice was to classify toolroom employees as class A, B, C, or D, according to skill. Respondent asserted that the area lacked facilities for an apprentice program. When Respon- dent again asserted that the Union's wage proposal was excessive, the Union suggested that they go on to the noneconomic matters. This was done. According to Barker, one of Respondent's principal objections to the union contract proposal was the restriction it would place on subcontracting.21 Respondent discussed the need for subcontracting in its operations. Respondent stated that it had no way of knowing how long the current layoff of toolroom employees would last. It also reiterated its position that the shop captain would not be permitted to represent employees during the shop captain's working hours.22 The third bargaining session took place on December 1, one day earlier than the Union originally suggested. The parties went over the outstanding proposals. Barker's testimony indicates some progress. 23 It is clear, as testified by Elliott, that, in an effort to meet Respondent's objections to its proposal limiting subcontracting, the Union agreed to amend its proposal to add language which would permit Respondent to subcontract work when the 21 Art 1, sec 2 of the union proposal stated, "The making, maintaining and repairing of molds and related equipment shall be done exclusively by employees in the bargaining unit." 22 Barker testified that he felt that the Union acceded to this, though reluctantly This is not credited. In addition to other factors, including my assessment of Barker's reliability as a witness, it is noted that after this meeting the Union continued to seek provision for representation of employees during working hours (See art 8 of proposal submitted as of January 8, 1971.) 23 Thus Barker testified that the Union did not accept Respondent's proposals "in toto " 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toolroom employees were fully occupied or Respondent lacked proper equipment to do the work.24 The Union contended that the layoff of toolroom employees was related to Respondent's subcontracting toolroom work. In response to an inquiry by the Union, Respondent stated that Sorg had been sent home for one afternoon because of lack of work. During this session, the Union complained of the removal of workbenches and tools and equipment from the toolroom, mainly the latter. Respondent asserted no specific purpose for the removal of the tools and equip- ment or specific knowledge of where they were going, although apparently Misco was indicated as a destination. The Union expressed doubts as to the validity of these explanations. There was considerable discussion of the Union's proposal to eliminate Respondent's four classes of tool- maker and provide only for group leaders, moldmakers, and apprentices. Respondent referred to the Union's Chicago Mold agreement which provided for a number of classifications. The Union requested Respondent to con- sider the Chicago Mold agreement and to make sugges- tions at the next meeting for reclassifying the toolroom employees. Barker agreed to take this under advisement and report at the next bargaining session. Barker reiterated that the Union's wage proposals were considered excessive and indicated that the question of classification of toolroom employees should be considered before discus- sion of wage increases. The fourth bargaining session was held on December 14, the date requested by the Union. Damas for the Union requested Barker's position on a proposed classification structure for employees in the toolroom, in accordance with the discussion at the previous meeting. Barker stated that he was unable to propose any, but again requested the Union to advise the criteria for toolmaker under its proposal. Barker argued that because of the variety of assignments in Respondent's operations, and the variety of skills required, a variety of classifications was needed. According to Barker, the Union amended their position with respect to the proposal that an apprenticeship program be instituted. The Union stated that it would be satisfied if a systematic procedure could be worked out to advance the employees in lower classifications to Class A toolmaker. When the Union requested that Respondent discuss the Union's wage proposal, Barker replied that it was just too excessive and that he would not consider it further until the Union lowered its demands on wages. Barker states that he also made a point of the contract clauses still open, which he identified specifically as scheduling of overtime, computation of vacation pay, doubletime on holidays, subcontracting, and the recogni- tion clause (this apparently referring to sections on subcontracting and union security contained within that article). However, he asserts that in the discussion of several contract clauses there was give and take between the parties on some issues, but no total agreement on any. Respondent proposed a grievance and arbitration propos- al, which the Union accepted in general, and a no- strike/no-lockout clause which the Union opposed on the ground of its general reputation for responsibility in that area. The Union withdrew two of its fringe benefit proposals which Barker characterized as minor. There was also further discussion of Respondent's subcontracting of work in which it would appear that previous positions of both sides were reiterated. It also appears that the Union's pension proposals, contained in a booklet which had been sent to Respondent in the interim, were discussed. Respondent appears to have agreed that all accumulated sums to the credit of unit employees in the Respondent's pension plan would vest to that point. The next bargaining session, the fifth, occurred on January 5, 1971, the date requested by the Union. According to Barker, the parties again discussed subcon- tracting, layoffs, and pensions, though no details are given. Barker states that the Union was informed of the probability of the layoff of two additional employees for lack of work, without any further details. It is indicated by Barker that progress was being made in the bargaining. He suggested that both sides reduce their positions to writing and exchange them by mail before the next meeting. Respondent at this meeting again refused to discuss the Union's wage proposal, which Barker termed "ridiculous," and refused to take a position of its own on wages until the Union reduced its proposal to a point which the Respon- dent considered "more realistic." Respondent also refused to agree to the Union's proposals on fringe benefits (contained in ai t. IX of the union proposal) though it appears that these largely consisted of current benefits enjoyed by the employees. Barker stated that these items were open for negotiation. Prior to the next meeting (the sixth), which took place on January 13, 1971, the date suggested by the Union, the Union submitted a complete revised proposal. Respon- dent's contract proposal was submitted at the opening of the meeting. It contained no proposal on wages. The parties proceeded to discuss the revised union proposal and apparently achieved a substantial measure of agreement. The major areas of disagreement remaining, other than the matter of wages and the fringe benefits contained in article IX of the union proposal, were the following: the union proposals on subcontracting, on certain daily overtime (though overtime after 8 hours in a day was agreed) and overtime on Saturdays and on holidays, computation of vacation pay, and seniority (which Respondent tied in with its desire to maintain four classifications of toolmakers). Certain problems relating to working and qualifications as to holiday pay, wording (but not intent) as to representa- tion of employees during working hours, and as to union access to company premises also remained . Respondent stated that it would consider the Union's proposal to agree to a no-strike clause if the Respondent would agree to the union shop proposal. The Union withdrew two proposals to which Respondent objected. 24 This was incorporated in the Union's written amended contract not found or available at the time in the LaPorte plant However, the proposal submitted on January 8, 1971, as art 1, sec 2(b), which provided Company shall not subcontract work while any employee in the unit, that "the Company shall retain the perogative to subcontract work capable of performing the work, is employed less than full time, unless the whenever in its judgment a particular job requires equipment and/or tools reason for the subcontracting is lack of proper equipment to do the work." HOWMET CORPORATION With respect to the 12 fringe benefits requested by the Union in article IX of its contract proposals, 3 involved changes in current company practices: pensions, insurance, and an improvement in rest periods which Barker termed minor. In addition, the Union requested agreement that any improvements in benefits granted to employees outside the unit be given to unit employees (sec. 13), and that Respondent would not construe the contract as a basis for altering any more favorable conditions presently in existence (sec. 14). With the exception of the proposal that employees be paid for the day on which they incurred an occupational injury, Respondent refused to agree to any of the fringe proposals as well as the proposed sections 13 and 14, asserting that it considered them all (including fringe benefits currently in effect) negotiable. It is clear that after going through the contract proposals, both the Union and the Respondent considered that the time had come to directly deal with the wage issue as a means of resolving their remaining dispute over the contract. Thus, when Damas asserted that Respondent had left out of its proposal an important element, wages, Barker replied, as before, that Respondent would not state a position on wages until the Union had made "a more realistic proposal," and suggested, as credibly testified by Damas, "that[the Respondent and the Union] are now getting to an area where we should resolve the economic and wage issue before we can wrap up the agreement." At the suggestion of Respondent, the Union recessed for about an hour and a half to consider its wage proposal and upon return, the Union reduced its wage proposal from a package of $147 for 18 months to a proposal for an increase of 98 cents over the same period. Barker asserted that this was not a sufficient adjustment, but that he would take it back to management for consideration. The seventh bargaining session took place on January 20, 1971, again the date suggested by the Union. At the outset of the meeting, the Union asserted that the parties were close to agreement on the noneconomic issues of the proposed contract, and requested that the Respondent state its position on the economic issues. It is manifest from Barker's testimony that Respondent concurred at this point that the noneconomic issues had been largely cleared up and it was time to consider the economics of the contract.25 Respondent, however, continued to refuse to take a position on economic issues, asserting that the Union's proposals were still excessive. Barker stated that Respondent would not make a counterproposal until the Union's wage demands were more realistic and within a framework that Respondent was willing to consider. It would appear from Barker's testimony that the Union protested Respondent's refusal to agree that benefits in effect should continue, stating that so far as the Union was concerned these benefits were presently effective and would not be bargained for. The Respondent argued that it was not in competition with the shops to which the Union referred in justifying its wage proposals, but with casting houses which Respondent asserted had lower rates than its 25 Barker testified that, in response to the Union's contention that it was time to get to the economic issues since "most of the issues in the agreement were pretty well taken care of," the Company agreed that they were fairly close together on all noneconomic issues such as grievances, grievance procedure, the seniority clause We knew where we stood on the others such 483 own. At one point, in order to meet Respondent's asserted concern over the future of the industry, the Union suggested a 1-year agreement at $5.16 an hour. Barker said this was "still not good enough." Most of the time at this session was devoted to the wage issue. At this meeting, however, Respondent did advise the Union that two additional employees would be laid off shortly in accordance with seniority. Respondent also reaffirmed its position on the subcontracting issue. Accord- ing to Barker the open issues, in addition to economics, were named at the close of the session. The only such specific issues he recalled, however, were subcontracting, overtime, pension, and computation of vacation pay, though he states there were others. The eighth, and last, bargaining session occurred on February 8, 1971. It was called by the Federal mediator whose assistance had been requested by the Union with the concurrence of the Respondent. According to Barker, the mediator was informed that the following items, in addition to economics, remained in dispute: union shop, the scheduling of subcontracting work, the assignment of overtime, overtime for Saturday work as such, payment for work on holidays, computation of vacation pay, timing of the vacation period, classification oflemployees, no-strike no-lockout provisions, insurance, and pension. After separating the parties, the mediator advised the Respon- dent that the Union wanted a wage proposal from the Respondent. Barker states that Respondent advised the mediator that it would not make a wage proposal "until these other issues had been cleared up." Damas testified, however, that when the mediator returned to the Union, he reported that the Respondent's position on economic matters continued to be as before, that Respondent would not make a proposal on wages until the Union lowered its wage proposal. Damas is credited. Insofar as Barker's testimony indicates that Respondent's refusal to make a proposal on wages at this point was based on the fact that there were other issues open, the testimony is not credited. It not only constitutes a clear break with Respondent's consistent position on wages expressed both before and after this occasion, but is also inconsistent with Respon- dent's course of bargaining at the prior bargaining session, at which Respondent agreed that, notwithstanding the remaining open issues, the time had come to resolve the economic issues standing in the way of agreement on a contract. I am further satisfied that Damas accurately testified as to the reports made to the Union by the mediator as to the Respondent's position. I further assume, on the basis of this record, that the mediator, a Federal official, properly performed his duties and fairly informed both sides of the positions stated by the other.26 In response to Respondent's demand that the Union further lower its wage proposal, the Union reduced its wage proposal from an increase of 98 cents over an 18- as opposition to the all union shop, the subcontracting issues" 26 Actions of public officials, in the course of official duty, may be presumed to have been regularly and officially performed See McCormick on Evidence, p 641 (West, 1954), 9 Wigmore on Evidence, -2534 (Third Edition) 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD month period to an increase of 92 cents over approximate- ly 26 months.27 The Union also dropped its proposal (art. IX, sec. 13) that improvements in benefits granted nonunit employees be also given to unit employees, which, as noted above, the Respondent had opposed. Later, after the mediator had informed the Union that Respondent had rejected its last wage proposal and asked that the Union reduce its demands further,28he brought the two I parties back together again. At this meeting, the Union refused to cut its wage demands any further. Respondent said it would discuss the union proposal with management. The mediator stated that he would contact the parties further to ascertain whether there was any change in position before setting another meeting. According to Barker, when the mediator called, Respon- dent asked if the Union had changed its position on any of the open issues, and when informed that it had not, Respondent replied that it was not prepared to make any counterproposal on wages. Barker also states that the mediator advised that it was the Union's position that it saw no reason to meet again unless the Respondent made an economic proposal and that he responded that Respondent, nevertheless, was available to meet further. On the other hand, Damas testified that he was informed by the mediator "that the Company's position remained the same, that they would not make any offer on wages unless the Union had lowered its demands." Further, according to Damas, the mediator did not see any need for a further meeting in these circumstances, with which the Union agreed. On the basis of my evaluation of the witnesses and upon the whole record, I credit Damas and, as previously noted, I do not credit Barker that Respon- dent's refusal to make a proposal on wages was based on a desire to have all noneconomic issues cleared up first. The parties have not since met for negotiation of a collective- bargaining contract. 2. Alleged conduct undermining the Union's representative status a. Unilateral action in respect to employment and working conditions. As has been noted, Respondent, after the certification of the Union as bargaining representative of the toolroom employees in respect to the terms and conditions of their employment, engaged in a number of acts affecting the employment and work of those employ- ees without notice to or prior consultation with the Union. Thus, Respondent unilaterally subcontracted out toolroom work, substantially altering the character and quantity of its past practices in this respect, and materially affecting the employment of toolroom employees; in connection with such subcontracting it laid off a number of toolroom employees, some of whom have not been recalled to work; it unilaterally assigned work normally performed by toolroom employees to nonunit employees; demoted Elliott and reduced his pay; removed certain equipment 27 Effective January 1, 1971, instead of November 1, 1970, as previously proposed, with a $5 10 rate for moldmakers at the start, with increases of 30 cents, an hour on September'], 1971, and on September 11, 1972 , 29 It is noted that, in this instance also, Barker asserts that Respondent took the position with the mediator that "we must have a fixed position clarified position [on the open issues), too many open issues to make a and tools from the toolroom; and further reduced overtime assignments of unit employees as well as nonunit employ- ees. It appears that many of these matters, if not all, were brought up by the Union dunng the negotiations after they had been effected by Respondent and, so far as appears, Respondent did not object or refuse to discuss these matters during the negotiations. In some cases, Respon- dent advised the Union in generalized fashion, during negotiations, of possible prospective layoffs. b. Refusal of permission to union representatives to represent employees during working hours and encouragement of individual dealing with Respondent in derogation of the Union. The record is clear that during the negotiations for an agreement, Respondent took the position that the shop captains (stewards) would not be permitted to represent employees subject to discipline or other personnel action during the shop captains' working hours, but would be permitted to do so after working hours. On the basis of a protest, or grievance, concerning this position, it appears that a "speech" was given the "tool room men" in "the office" by management representatives, which was accord- ing to the uncontradicted and credited testimony of employee Sempsrote, principally "concerned with the company not allowing the men to be represented during a disciplinary action or other [personnel action] of that nature." Elliott, the chief shop captain, according to his undenied, credited testimony, "was actually kept from entering the tool room office on occasions and ordered out of the tool room office on occasions because I attempted to [act as shop captain in personnel actions dunng working hours]." On one such occasion, in addition to others, Elliott was informed by Barker that Elliott could not represent employee Stevenson when he attempted to do so. No further evidence with respect to the Stevenson incident, or any of the others, appears in the record. ' Conclusions While, prior to the designation of a bargaining represent- ative by employees to be their spokesman in matters concerning employee working conditions and employment, the employer may have largely unfettered discretion to unilaterally alter such conditions or deal with the employ- ees directly concerning such matters, the selection of a bargaining agent, in accordance with the Act, clearly limits the employer's right to act on his own as to the terms and conditions of the employees' employment. Thus, the Act requires, in order to resolve disputes and promote the interests of industrial peace, that the employer deal with the duly designated representative of its employees exclusively, and in good faith, with respect to the terms and conditions of their employment. To that end, the parties are encouraged to agree and execute an agreement covering such matters . See, e.g., N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 402-404. The Act does not require agreement. Indeed, neither party is counterproposal and to well consider a counterproposal." This is not credited for reasons noted heretofore It should be noted that, in response to a leading question by counsel, Barker also asserted that one of the matters with which Respondent was concerned at this time was the open cost-of-living proposal of the Union. HOWMET CORPORATION compelled, as a matter of law, to make concessions to the other. See Section 8(d) of the Act.29 What is required is that the parties at the bargaining table "enter into discussions with an open and fair mind, and a sincere purpose to find a basis of agreement." Thus, more is required than careful adherence to the form of bargaining, while engaging in tactics which frustrate the purposes of the Act. See N.L.R.B. v. Herman Sausage Co., 275 F.2d 229, 231-232 (C.A. 5). The Act further makes clear that the employer is not only under a duty to bargain with the duly chosen representative of the employees, exclusively, but has the correlative obligation not to deal with the employees separately (see Medo Photo Supply Corp., 321 U.S. 678) nor may the employer unilaterally change established working conditions without consultation and bargaining with the representative of its employees, in the absence of circum- stances excusing or justifying such unilateral action. (N.L.R.B. v. Katz, 369 U.S. 736.) Thus, it has been held that where the employer contemplates action having a substan- tial impact upon the terms or tenure of employment of represented workers, as by subcontracting unit work,30 layoff of employees,31 assignment of unit work to nonunit employees,32 or change in hours, wages, or conditions of work,:33ithe employer has an obligation to provide a reasonable opportunity to the bargaining representative to bargain with respect to the contemplated change before it is effected. See, e.g., Armstrong Cork Co., v. N.L.R.B., 211 F.2d 843, 847; Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574. Where, however, the changes effected comport with the employer's established practices in those circumstances and are non-discriminatory, this may excuse the employer's failure to notify and consult with the bargaining agent before taking such action affecting employee working conditions or terms of employ- ment. See Westinghouse Electric Corp. (Mansfield Plant), supra. As has been noted, the employer's duty to bargain exclusively with the designated representative of its employees includes the obligation not to deal directly with the employees concerning terms and conditions of their employment. This includes the resolution of grievances and disputes of such employees concerning the terms of their employment and their working conditions. Thus, it is now well established that the bargaining agent has a right to be present when discipline is administered or employee grievances are resolved, although such representative may not have an equal right to be present and assist employees during meetings which are purely investigatory in nature. See, e.g., Illinois Bell Telephone Company, 192 NLRB No. 138. 29 It is sometimes asserted , based on this provision of Sec 8(d), that the parties are relieved from making counterproposals in bargaining However, as the Court noted in N L R B v American National Insurance Co, supra, at 404, the provision of the Hartley Bill, passed by the House of Representa- tives in 1947, which "expressly provided that the duty to bargain collectively did not require submission of counterproposals," was rejected by the Congress in formulating the present definition of bargaining in Sec. 8(d) of the Act, which provides, in this respect, merely that the obligation to bargain "does not compel either party to agree to a proposal or require the making of a concession " 30 See Fibreboard Paper Products Corp v N LR B, 379 U.S 203. 31 See N L R B v Exchange Parts Co, v N.L R B, 339 F 2d (C.A. 5) 485 The record in the present case is convincing that Respondent from the outset was resolved to frustrate any attempts by the employees to participate, through a collective-bargaining representative, in the establishment, alteration, or administration of their terms and conditions of employment. It is further clear that Respondent did not, after the certification of the Union as the employees' bargaining representatives, deal with the Union with respect to those matters in good faith, within the meaning of the Act. Thus Respondent, from the start, laid off toolroom employees for the first time, substantially increased subcontracting their work, assigned toolroom work to nonunit employees, and made other changes affecting unit employees without notice to the Union or prior opportuni- ty to bargain about those matters.34 It is further clear that Respondent not only made substantial changes in employee conditions and terms of employment in derogation of the employees' bargaining representative, but also took affirmative action to discour- age the unit employees from seeking or obtaining repre- sentation by the Union in respect to their day-to-day problems with management. As noted herein, after the employees met to elect shop captains to represent them, Supervisor Pease expressed his disappointment at their action. When Shop Captain Elliott tried to attend meetings involving personnel actions taken with respect to employ- ees, he was barred and advised that he would be permitted to represent employees only after his working hours. The Respondent took pains to formally advise the unit employees that they would not be permitted union representation in respect to personnel actions during working hours. It is a normal practice in industrial establishments for management to take personnel action with respect to employees during working hours. The evidence as a whole leads to the conclusion that this was Respondent's practice also, as indicated by Elliott' s exclusion from such employee personnel meetings and Respondent's need to formulate the rule in the first instance. As has been noted, where Respondent's action is not merely investigatory, but involves definite or final action affecting an employee's employment or the conditions thereof, he is entitled to representation by the Union. I need not here consider whether Respondent might insist that the shop captain, prior to acting in a representative capacity, "clock out," and not act on Respondent's time, for the record is clear in this case that Respondent, while reserving its right to take personnel action during normal working hours, insisted that the shop captain could act only after working hours. Respondent, in these circumstances, by advising the 32 See, e g., Weltronic Company v. N LR B, 419 F.2d 1120 (C A 6). 33 See, e.g., N LR B v Little Rock Downtowner, Inc, 414 F.2d 1084 (C A. 5) 34 In arriving at this conclusion , I have considered the discussions of these matters during the bargaining sessions, largely after they had been effected by Respondent. As the Court stated in Armstrong Cork Co v N LR B, supra at 847, "Good faith compliance with Section 8(a)(5) and (1) of the Act presupposes that the employer will not alter existing 'conditions of employment' withoutfirst consulting the exclusive bargaining representa- tives selected by the employees, and giving it an opportunity to negotiate on any proposed charges " (Emphasis supplied.) 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees that they would not be permitted union representation by their selected shop captains during working hours, no matter what the nature of the personnel action or when Respondent's action was taken, clearly acted in derogation of the certified bargaining representa- tive, interfered with the right of the employees "to bargain collectively through representatives of their own choosing," and refused to bargain with the employees' representative within the meaning of the Act. However, inasmuch as the record does not show the nature of the personnel action involved in the meetings from which Elliott was barred, it is not found that Respondent violated the Act by barring Elliott from those specific meetings. Respondent's actions in the collective-bargaining ses- sions were of a piece with its conduct toward employee representation generally. While accepting the forms of bargaining, Respondent clearly rejected the objectives of collective bargaining enjoined by the Act. Respondent's refusal to take a firm, definite position on the economic items involved effectively forestalled any complete agree- ment and thus negated those areas in which Respondent arrived at agreement with the Union. Respondent relies on cases which support an employer's right to insist upon its current terms of employment and refuse to make any concessions.35 However, the record is quite plain that Respondent never took any clear or specific position with respect to wage rates or several fringe benefits, or advised the Union of the terms which would be satisfactory to Respondent in these areas. Thus, its contract proposals submitted to the Union are silent on these issues. During the bargaining, Respondent not only refused to state what economics would be agreeable, but clearly indicated that it would not even agree to several benefits then in existence. In the circumstances of this case, Respondent's adamant refusal to take any specific, definite position on the economics of a bargaining agreement, while deriding and rejecting repeated concessions by the Union, frustrated bargaining, prevented agreement on a contract, and constituted bad faith. If the parties to bargaining refuse to say what they will accept in a complete agreement, the conditions under which such an agreement may properly be reached are impermissibly undercut and the purposes of the Act are frustrated. On the basis of the above, and record as a whole, it is found that Respondent, by bargaining with the Union in bad faith, unilaterally changing terms and conditions of employment as found herein,36 and advising employees that representation by shop captains would not be permitted during working hours when Respondent took personnel action in respect to employees, thus encouraging unit employees to deal directly and individually with Respondent, engaged in conduct in violation of Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act, which has been at all material times, and continues to be, the exclusive repre- sentative of Respondent's employees in the appropriate unit set forth below for the purposes of collective bargaining within the meaning of Section 9(a) and (b) of the Act. 3. All tool and moldmaker employees, including tool and moldmakers A, B, C, and D, employed by Respondent at its LaPorte, Indiana, plant, including the group leader, but excluding all office clerical employees, guards, profes- sional employees, and supervisors as defined by the Act, and all other employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of the Act. 4. By threatening employees that the toolroom would be closed if the Union were selected as the bargaining representative of the employees and by soliciting employ- ees to dissuade other employees from joining or assisting the Union, as found herein, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 5. By the layoffs of John Seese, Steven Ellis, Herman Williamson, Wolfgang Sorg, Harrison E. Manering, Victor Zandanel, and Roderick Stevenson the subcontracting of unit work, and the transfer of unit work to employees outside the unit, as found herein, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act.37 6. By its unilateral actions affecting the terms and conditions of employment of employees in the unit set forth above, without notification to the Union or adequate opportunity to bargain with respect to those actions before they were effected and by advising unit employees that they could not be represented by their shop captains during working hours when personnel action was taken with respect to unit employees, and by otherwise refusing and failing to bargain with the Union in good faith with respect to the terms and conditions of employment of unit employees, as set forth herein, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found _that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that Respon- dent be ordered to cease and desist therefrom and take 35 See , e g , International Engineering and Manufacturing Co, 151 NLRB 1441, American Sanitary Wipers Co, 157 NLRB 1092 36 1 find it unnecessary to pass upon General Counsel's contentions that Respondent engaged in unlawful unilateral action in violation of Sec 8(a)(5) by the reprimand of Elliott for protesting assignment of work out of the unit, returning Mischler to sick leave status, and eliminating Saturday work These contentions, even if meritorious, would not require any substantial change in the remedy provided herein It is recommended that, insofar as these contentions are included in the allegations of the complaint, they be dismissed 37 In the case of Sorg this includes a layoff for a part of one day in November 1970, as well as the later layoff commencing on January 22, 1971 HOWMET CORPORATION 487 certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated against its employees in violation of Section 8(a)(3) and (1) by the layoffs of Steven Ellis, John Seese, Herman Williamson, Wolfgang Sorg, Victor Zandanel, Roderick Stevenson, and Harrison E. Manering, it will be recom- mended that Respondent offer to those laid-off employees who have not been previously recalled immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights, privileges, or working conditions,38 and make such laid-off employees whole for any loss of earnings or benefits suffered by reason of the discrimination against them by payment to each of them a sum of money equal to the amount each of them would have earned on each occasion of the discrimination against him, to the date of the Respondent's offer to reinstate him, less his net earnings during that period, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. its operations, or part of its operations, or terminate or deprive employees of work, or otherwise harm employees for joining or engaging in activities in support of a labor organization. (c) Refusing to bargain in good faith with the aforesaid Union as the exclusive representative of its employees in the appropriate unit set forth above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (d) Refusing to bargain with the aforesaid Union as the exclusive representative of the employees in the appropri- ate unit by unilaterally establishing or changing the terms and conditions of employment of such employees, without giving prior notice and a reasonable opportunity to the Union to bargain with respect thereto. (e) Refusing to bargain with the aforesaid Union as the exclusive representative of the employees in the appropri- ate unit by advising employees that Respondent will not permit the employees to be represented by union shop captains at times when Respondent takes personnel action against them or adjusts their grievances, or by otherwise preventing such employees from being represented by the Union on such occasions. Inasmuch as there is no indication that any other (f) In any other manner interfering with, restraining, or employees suffered loss of earnings or benefits by reason of coercing its employees in the exercise of their rights under Respondent's discriminatory subcontracting practices and Section 7 of the Act. transfer of unit work out of the unit,39 no additional --2\ Take the following affirmative action which it is remedy of reimbursement for those violations appears found will effectuate the purposes of the Act: appropriate. (a) Offer tlie-following named employees immediate and As the unfair labor practices committed by the Respon- full reinstatement to their-former jobs or, if those jobs no dent are of a character striking at the root of employee longer exist, to substantially equivalent jobs, unless this has rights safeguarded by the Act, it will be recommended that previously been done, and make them whole for any loss of the Respondent be ordered to cease and desist from earnings or benefits suffered by reason of the discnmina- infringing in any manner upon the rights guaranteed in tion against them, in accordance with the provisions of the Section 7 of the Act. See Brads Machine Products, Inc., 191 section entitled "The Remedy" above: NLRB No. 15. Upon the foregoing findings of fact, conclusions of law, Steven Ellis Victor Zandanel and the entire record, and pursuant to Section 10(c) of the John Seese Roderick Stevenson Act, I issue the following recommended: 40 Herman Williamson Harrison E. Manering Wofgang Sorg ORDER Howmet Corporation , Austenal Microcast Division, the Respondent herein, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Laying off employees, subcontracting or otherwise transferring work, or otherwise discriminating against employees in order to discourage membership in or support for Pattern , Mold and Model Makers' Association of South Bend and Vicinity, affiliated with Pattern Makers' League of North America , AFL-CIO, or any other labor organization. (b) Warning or threatening employees that it will close 38 In this connection , note has been taken of the fact that while on layoff, Sorg and Zandanel advised Respondent that they wished to terminate their employment with Respondent since that was the only basis upon which they could secure employment at another employer Inasmuch as these employees would not have been put in this position absent Respondent's discrimination against them, they are entitled to be reinstated to the position they would have held absent the discrimination against them, and reimbursed for their losses in the same manner as the other laid-off employees (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and make available to the Board or its agents, upon request, payroll and other records to facilitate the effectuation of the Order herein. (d) Upon request, bargain collectively' with the above- named Union as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of 39 General Counsel's contention that the unit employees were deprived of overtime work during the period in question has previously been found to be without merit 40 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections shall be deemed waived for all purposes 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its plant at LaPorte, Indiana, copies of the attached notice marked "Appendix."41 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.42 Except to the extent found herein, the allegations of the complaint that Respondent violated the Act are dismissed. takes personnel action against employees or deals with employees in the adjustment of grievances. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL offer to the employees named below, to the extent that we have not already done so, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, and WE WILL make each of them whole for any loss of earnings or benefits suffered by them by reason the discrimination against them: Steven Ellis Wolfgang Sorg Harrison E. Manering Herman Williamson John Seese Victor Zandanel Roderick Stevenson 41 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 41 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off employees or subcontract out work or transfer work that belongs in the appropriate unit set out below, or otherwise discriminate against employees in order to discourage membership in or support of Pattern, Mold and Model Makers' Associa- tion of South Bend and Vicinity, affiliated with Pattern Makers' League of North America, AFL-CIO, or any other union. WE WILL NOT warn or threaten employees that we will close any part or all of our operations, or terminate or deprive any employee of work, or otherwise harm any employee for joining or supporting the Union named above, or any other union. WE WILL NOT refuse to bargain in good faith with the above-named Union about the terms and conditions of employment in the appropriate unit. WE WILL NOT make any new, or change any existing, term or condition of employment of employees in the appropriate unit set forth below without first notifying the Union named above, and giving it an adequate opportunity to bargain about it. WE WILL NOT prevent employees from being repre- sented by shop captains or other union representatives at meetings or other occasions when the Company WE WILL bargain in good faith with the above- named Union about the terms and conditions of employment of employees in the appropriate unit and, if an agreement is reached which is put in writing, we will sign that agreement. The appropriate bargaining unit is: All tool and moldmaker employees, including tool and moldmakers A, B, C, and D, employed by the Company at its LaPorte, Indiana, plant, including the group leader, but excluding all office clerical employees, guards, professional employees, and supervisors as defined by the Act, and all other employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of the Act. HOWMET CORPORATION, AUSTENAL MICROCAST DIVISION (Employer) Dated By (Representative Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions 'concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921