Empire Dental Co.

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jack L. Williams, D.D.S., d/b/a Empire Dental Co. and Dental Technicians Union of Northern Califor- nia, Local 99, International Jewelry Workers Union, AFL-CIO. Case 20-CA-8225 June 24, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On September 10, 1973, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a brief and the General Counsel filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, except as modified herein. Respondent takes exception to the assertion of jurisdiction by the Administrative Law Judge who found, inter alia, that Respondent, a company engaged in the practice of dentistry and the opera- tion of a dental laboratory, satisfies the Board's jurisdictional standard for retail enterprises. Respon- dent argues that its essentially local dental practice is not sufficiently substantial to justify assertion of jurisdiction. For reasons which follow, we find that jurisdiction is warranted in the instant unfair labor practice proceeding. As the Administrative Law Judge points out in his Decision, Respondent did not contest jurisdiction in the representation case and entered into a Stipulation for Certification Upon Consent Election. The Ad- ministrative Law Judge therefore properly found that "it would be contrary to the policies of the Act and do violence to the desideratum of administrative finality now to permit Respondent to escape the obligations flowing from the Board's exercise of jurisdiction in the representation case." In this connection, it is well settled' that where, as here, there is an absence of newly discovered evidence or previously unavailable evidence or special circumstances, a respondent in an unfair labor practice proceeding is not entitled to relitigate issues which were or could have been litigated in a I Hospice ofAlverne, 195 NLRB 313. S All dates below are for 1973 unless otherwise specified. 9 The Union was certified as the bargaining representative of the laboratory technicians on March 1 following an election held pursuant to the Stipulation for Certification Upon Consent Election. 4 Respondent does not except to the 8(aX3) and 8(axl) findings. 211 NLRB No. 127 prior representation proceeding. Accordingly, we find that the jurisdictional issue is not properly litigable in this unfair labor practice proceeding and that it is unnecessary to pass on the validity of the contentions advanced by Respondent in support of its exception to the assertion of jurisdiction herein. We shall therefore continue to assert jurisdiction in the instant case. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(3) of the Act on January 19, 1973,2 by discriminatorily discharging William Cicala; violated Section 8(a)(1) of the Act by telling one of the technicians sometime between March 13 and 19 that Respondent "would close down the lab" if the Union3 "went too far at the bargaining table"; 4 and violated Section 8(a)(5) of the Act by its failure to afford the Union an opportunity to bargain over its decision to subcon- tract its laboratory work on April 2 and over the effects of that decision on the unit employees who were discharged as a result of Respondent's action in this regard.5 However, the Administrative Law Judge found without exception that the contracting out of the laboratory work was not discriminatory because Respondent's business was in financial trouble and the technicians were performing their duties ineffi- ciently.6 We turn now to the propriety of the Administrative Law Judge's remedial order which not only requires Respondent to engage in collective bargaining with respect to wages, hours, and other conditions and terms of employment, but also calls for the restora- tion of the laboratory operation as well as backpay and the reinstatement of all the technicians, includ- ing Cicala who was discharged in violation of Section 8(a)(3) of the Act. We agree with the Administrative Law Judge that a bargaining order alone cannot serve as an adequate remedy for Respondent's 8(a)(5) conduct and that meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. However, in view of such special factors as Respondent's financial stringency and the poor quality of the technicians' work which prompted Respondent to contract out the laboratory operation, we conclude that the scope of the Administrative Law Judge's remedial and bargaining order is overly broad. Accordingly, in order to effectuate the purposes of the Act, we shall require Respondent to bargain with the Union concerning the effects of subcontracting the laboratory work and shall accom- S Respondent excepts to this finding. Although we agree with the Administrative Law Judge that Respondent's conduct was unlawful, we do not wholly subscribe to his remedial order and shall modify its terms as indicated below. d In the absence of exceptions thereto, we adopt this finding. EMPIRE DENTAL CO. 861 pany our order with a limited backpay requirement designed to make whole the employees for losses suffered as a result of the subcontracting and to recreate in some practicable measure a situation in which the parties' bargaining position is not entirely devoid of economic consequence for Respondent.? Thus, we shall order backpay for all technicians, except Cicala,8 at the rate of their normal wages when last in Respondent's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date Respondent bargains to agreement with Union on those subjects pertaining to the effects of the subcontracting of the laboratory operation; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision, or to commence negotiations within 5 days of Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount each would have earned as wages from April 2, 1973, the date on which Respondent subcontract- ed its laboratory work, to the time each secured equivalent employment elsewhere, or to the date on which Respondent . shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of the normal pay when last in Respondent's employ. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Jack L. Williams, D.D.S., d/b/a Empire Dental Co., Santa Rosa, California, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Stating to its employees that it would close down the laboratory if the Union "went too far" at the bargaining table. (b) Discharging its employees because of their union sympathies or activities. (c) Refusing to bargain with Dental Technicians Union of Northern California, Local 99, Internation- al Jewelry Workers Union, AFL-CIO, with respect to the effects on the technicians of its subcontracting of the laboratory operation. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Give the terminated employees backpay for the period set forth in this Decision. (b) Upon request, bargain collectively with Dental Technicians Union of Northern California, Local 99, International Jewelry Workers Union, AFL-CIO, with respect to the effects on its technicians of the subcontracting of the laboratory operation, and reduce to writing any agreement reached as a result of such bargaining. (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in checking compliance with this Order. (d) Post at its place of business in Santa Rosa, California, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representa- tive, shall be posted by Respondent, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail an exact copy of the attached notice marked "Appendix" to the Union, William Cicala, and all the technicians who were terminated by Respondent on March 30, 1973. Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be mailed immedi- ately upon receipt thereof, as hereinabove directed. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 7 Interstate Tool Co., Inc., 177 NLRB 686. It As Cicala was discriminatorily discharged in violation of Sec. 8(a)(3) of the Act, we shall order backpay for him from the date of his discharge to the time he secures substantially equivalent employment elsewhere , or to March 30, 1973, whichever occurs sooner . Losses for that period shall be computed as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and F. W. Woolworth Company, 90 NLRB 287. However, in the event Cicala did not secure such employment prior to March 30, 1973, he shall also be subject to the same backpay formula as the other technicians. 9 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government I WILL NOT tell employees that I will close down 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the laboratory if the Union "went too far" at the bargaining table. I WILL NOT discharge employees because of their union sympathies or activities. I WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act. I WILL, upon request, bargain collectively with Dental Technicians Union of Northern Califor- nia, Local 99, International Jewelry Workers Union, AFL-CIO, with respect to the effects of the subcontracting of the laboratory operation upon the technicians who were employed there and reduce to writing any agreement reached as a result of such bargaining. I WILL give to William Cicala and the techni- cians employed at the dental laboratory on March 30, 1973, backpay in accordance with the remedial order set forth in the Board's Decision. JACK L. WILLIAMS, D.D.S., D/B/A EMPIRE DENTAL CO. (Employer) Dated By (Representative) (Title) 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was tried before me in Santa Rosa, California, on June 27, 28, and 29, 1973. The charge was filed April 12, 1973, by Dental Technicians Union of Northern California, Local 99, International Jewelry Workers Union, AFL-CIO (herein called the Union). The complaint issued May 22, alleging that Jack L. Williams, D.D.S., d/b/a Empire Dental Co. (herein variously called Dr. Williams, Williams, and Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The parties were given opportunity at the trial to introduce relevant evidence, examine and cross-examine I Claude Davis, Paul Granneman, David Izzett , Wayne Jambois, Frank Measel, Stephen Nelson, and Larry Whitehead. witnesses, and argue orally. A brief was filed for Respon- dent, but not the General Counsel. II. ISSUES The issues are whether Respondent meets the Board's jurisdictional standards ; and, if so, whether it: 1. By Peter Baker, its business manager, between about March 13 and 19, 1973, to discourage union representa- tion, told an employee that Respondent would go out of business, violating Section 8(axl). 2. Discharged William Cicala January 19, 1973, and its seven remaining laboratory technicians ' March 30, 1973, because of their union activities, violating Section 8(a)(3) and (1). 3. Contracted out its laboratory work March 30, 1973, and concomitantly discharged the entire bargaining unit of laboratory employees, without giving the Union opportuni- ty to bargain over the underlying decision or its effects on the unit employees, violating Section 8(a)(5) and (1). III. FINDINGS OF FACT A. Business of Respondent Respondent is a proprietorship owned by Jack L. Williams, D.D.S., and has been engaged in the practice of dentistry in Santa Rosa, California, since August 24, 1971. The business has consisted of several dentists and, until Respondent ceased its operation as later detailed, an exclusively in-house laboratory. Respondent contends that its annual gross revenues are not sufficient to warrant the assertion of jurisdiction under the Board's retail standard, and therefore that the complaint should be dismissed without consideration of the substantive merits . Respondent realized gross revenues of $31,296.04 in the 5 months it was in operation in 1971, and revenues as follows for the succeeding months to, but not including, the month of the trial: 1972 Jan. $21,583.17 Feb. 25,469.69 Mar. 27,420.69 Apr. 31,850.79 May 30,999.44 June 36,056.28 July 43,370.98 Aug. 28,682.91 Sept. 45,217.39 Oct. 38,416.67 Nov. 48,882.89 Dec. 44,508.38 1973 Jan. $39,978.15 Feb. 44,707.66 Mar. 53,403.24 Apr. 87,162.30 May 58,934.87 EMPIRE DENTAL CO. 863 Inasmuch as Respondent realized an annual gross income in the 12 ,months ajmmediately preceding the month of trial exceeding $500,000, and since it is established by the pleadings, as amended at the trial, that it has an annual indirect inflow of goods and supplies valued in excess of $3,000, I find that it is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act; and, further, that it satisfies the Board's jurisdictional stapdard for retail enterprises . Dr. J. C. Campbell, Dentist, 157 NLRB 1004 ; Western Machine & Tool Company, 115 NLRB 978. B. Labor Organization Involved The Union is a labor organization within the meaning of Section 2(5) of the Act. C. The Alleged Unfair Labor Practices 1. Background Dr. Williams, for some years before opening for business in Santa Rosa in August 1971, had been a staff dentist in other practices in the San Francisco bay area. In his own practice, he sought to express his ideal, derived from that experience, of a "clinical approach to dentistry." To that end, he erected a 4,000-square-foot building embodying numerous special design features , facilities for several staff dentists, and a laboratory equipped to provide in-house support for nearly any need the dentists might have. The laboratory was central to the overall concept. As Williams testified: This was the structure of the entire philosophy of the clinical approach, that we would have the in-house lab to take care of repairs on the spot within the hour, to have complete control over the processing of all kinds of dental appliances, inasmuch as we were going into complete dentistry on a family basis. Respondent had one laboratory technician at the start, alleged discriminatee William Cicala. A second technician, Larry Whitehead, was hired in November 1971, and the laboratory complement grew to nine, some of whom were part timers, by mid-1972. On March 30, 1973-the day Respondent ceased operating it-the laboratory had seven technicians. The number of dentists meanwhile reached about six. Two or three times in late August 1972, some of Respondent's lab®ratory technicians met with Leo Turner, the Union's business agent, and signed union authorization cards. The meetings were arranged by Cicala, who previously had become acquainted with Turner. Turner, by letter to Respondent dated September 5, 1972, asserted that the Union represented a majority of the technicians and demanded that it be recognized for bargaining purposes. About the time of receipt of Turner's letter, Dr. Williams and Peter Baker, Respondent's business manager, called a meeting of the technicians, during which their interest in the Union was discussed. One of the technicians told Williams that Turner was their spokesman, and gave him a copy of the Union's standard area contract. Williams reminded the technicians that the business was "still in infancy," suggested that they were "getting the cart before the horse," and promised that they would make "beaucoup dollars" if they stuck with him. He added that, should they go union then, the continued operation of the laboratory would be economically unfeasible, and he would have to close it .2 Williams asked that the technicians give him 6 months to a year to see how things developed; then, if they still wanted, he told them, they could "go union with my blessings." The meeting closed with the understanding that Baker would draw up a document similar to a union contract setting forth the technicians' various benefits and conditions of employment. Following that meeting, Cicala informed the Union's Turner that the technicians wanted to hold off on the Union to give Williams time to "live up to" his promises. Several weeks elapsed without incident. In December, Williams embarked on a Mexican vacation, not to return until February 10, 1973. In early January 1973, Baker's promised document not having materialized and condi- tions generally remaining as they were before the Septem- ber meeting, Cicala again arranged for Turner to meet with the technicians. Four of them met with Turner on January 17, signing fresh authorization cards; and Cicala, on January 18, solicited signatures in the laboratory from three not attending. By letter dated January 18, Turner once more demanded that Respondent recognize the Union. At about 11 a.m. on January 19, Baker entered the laboratory, the letter in hand. He said, "So you guys are going union, huh?" Technician Wayne Jambois answered, "Yes, we feel that it is the best thing . . . ." Baker replied, "Well, I think you guys are cutting your own throats."3 At about 5:30 p.m. that same day, Baker fired Cicala. Also on January 19, the Union petitioned for an NLRB election among Respondent's laboratory technicians in Case 20-RC-11145. The Regional Director for Region 20 approved a Stipulation for Certification Upon Consent Election on February 12, and an election followed on February 21. The tally was five votes for the Union, one opposed. A certification of representative issued March 1. Two bargaining sessions followed-on March 13 and 19. Both lasted 1 to 1-1/2 hours. Baker was Respondent's spokesman at the first meeting, Williams at the second. Turner spoke for the Union at both. The first meeting consisted primarily of Turner's proposing that the parties adopt the Union's standard area agreement, to expire October 1, 1973, and explaining its various provisions. 2 The finding that Williams mentioned closing the laboratory is based on during NLRB investigation of the charge. The General Counsel does not the credited testimony of technicians Cicala , Whitehead, and Wayne seek a finding of violation based on Williams' conduct at the September Jambois. Williams' denial is not credited both because of the persuasiveness meeting. of the contrary testimony and because Williams several times during his 3 The General Counsel neither alleged nor contends that Baker, by these testimony demonstrated flawed recall until refreshed by an affidavit taken comments, violated the Act. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker said nothing about the possibility of contracting out the laboratory work. At the second bargaining session, Turner restated the Union's proposal that the area agreement be adopted. Williams voiced dissatisfaction with its job descriptions, saying that new ones would have to be worked up. Williams also complained that the quality of work done in Respondent's laboratory was poor, necessitating an exces- sive number of "remakes." He said in passing that, unless laboratory efficiency were improved, he might have to contract out its functions "even though this was the last thing that I wanted to do." 4 The session closed with an understanding that a further meeting would be held March 26 to give additional consideration to job descriptions. Between the two bargaining meetings, Baker told technician Jambois that Williams was "very much against the union," and, in Baker's opinion, "would close down the lab" if the Union "went too far" at the bargaining table.5 2. The contracting out of the laboratory work Williams originally had planned to return from his Mexican vacation in early January. Upon telephoning Baker about January 5, he was assured that the business was "running smoothly," so decided with prompting from Baker to stay an extra month. Williams called Baker again the last week in January, to be told that everything was 'just fine." Baker did not mention the Union's petition or that he had fired Cicala. When Williams returned to Santa Rosa on about February 10, he found the business in "utter chaos." He learned not only of Cicala's discharge and the pending NLRB election, but that, contrary to Baker's cheerful telephonic summations, the profit and loss picture was ominous. Beyond that, the quality of laborato- ry work had deteriorated in his absence, causing the staff dentists on their own to contract out the porcelain portion of it in January6 and to be seething about the rest. The staff dentists had expressed increasing bitterness over the quality of laboratory work throughout 1972, some urging that the laboratory be closed-that Respondent "can the whole kit and caboodle," to use Williams' phrase-and the work be contracted out. Poor laboratory work embarrassed them professionally, and the high incidence of remakes both inflated Respondent's overhead and, with the attendant need to reschedule appointments, inconvenienced patient and doctor alike? Williams, in the words of one of the staff dentists, "tolerated . . . really gross inefficiency" in the laboratory. He opposed closing it with the argument that to do so would undermine the "entire structure" on which the practice was predicated, and that, with time and patience, quality would improve. After Williams' return from Mexico, the fiscal crisis and 4 Williams is credited that he raised the possibility of closure. Turner, while verifying that Williams complained about the inefficiency of the laboratory, testified that he could not recall if possible closure was mentioned. Wayne Jambois, also present, verified Williams' version. 6 Baker had authority to hire and fire laboratory employees. I find that he was a supervisor within the meaning of the Act. e The record does not disclose if this caused job loss or other impairment. r One of Respondent's staff dentists, Ira Handelsman, credibly testified that a remake rate exceeding 5 percent is considered unacceptable in the profession, and that the crown and bridge department of Respondent's the staff dentists' growing militance about the laboratory dictated a fresh appraisal of the laboratory situation.8 Williams and the staff dentists held formal and informal meetings to examine the matter in detail. No dispositive decisions were reached, but three alternatives emerged at a meeting in mid-March: contract out all laboratory work, undertake an intensive training program for the techni- cians, or cull the poor technicians. There is no evidence that the Union was mentioned at this meeting. As a result of the meeting, Williams began to explore with Mikesell's Dental Laboratory its doing Respondent's laboratory work. Soon after that meeting, Williams received further bad news: While he was in Mexico, Baker had failed to remit to the United States Internal Revenue Service, and its State of California counterpart, moneys withheld from the pay of Respondent's employees for the last quarter of 1972. On Friday, March 23, IRS officials, as Williams put it, "invaded" Respondent's premises and issued an ultimatum that the delinquency-$30,000-be cured in 3 hours or the business would be padlocked. The deadline shortly was extended to noon of March 26 and Williams, after heroic scrambling, was able through his father and the use of payroll moneys to meet it. On March 25, Baker was arrested for grand theft in connection with his part in the matter. At about this time, technician Claude Davis telephoned the Union's Turner, at Williams' request, to report that "personnel problems" had arisen necessitating postponement of the bargaining meeting scheduled for March 26. Williams met again with the staff dentists about the date of Baker's arrest. It was decided to contract out all laboratory work. The IRS ultimatum, according to Williams, was "the final contributing factor." It was concluded at the meeting that neither the technicians nor the Union should be given advance notice of this, for fear that theft of equipment and property damage would result. There is no evidence that the Union otherwise was mentioned in reaching the decision. On Friday, March 30, at the end of the day, Williams told the technicians in a group that the laboratory was closed as of then, and that he had arranged for Mikesell's Dental Laboratory to do the work. Williams added that the decision was based strictly on fiscal considerations and was not influenced by the advent of the Union. After the meeting he told Larry Whitehead that he had put in "a good word" for him and technicians Claude Davis and Paul Granneman with Mikesell's, and that Respondent would hire the three back when conditions permitted.9 That night, Williams told Turner by telephone of the shutdown and contracting out, citing the problem with IRS and Baker's alleged theft, and expressly denying that the laboratory, in the first 3 months of 1973, had 43 remakes out of 176 cases-about 25 percent. 6 Respondent proffered detailed testimonial and documentary evidence at the trial corroborative of the seriousness of the fiscal plight , none of which was challenged by the General Counsel. Crediting this evidence, and there being no challenge to it, I see no need to labor its specifics in this Decision. 6 Whitehead is credited over Williams' denial that Williams raised the prospect of future employment. Both had excellent witness stand demeanor, but Williams, as previously noted, was shown at times to have faulty recall. EMPIRE DENTAL CO. 865 Union figured in the decision. In answer to Turner's question whether the change was permanent, Williams said he "had-no idea ... could not tell." Turner, assuming "that there was no future for collective bargaining at that time," did not ask Williams to bargain over the effects of the change. Williams' revelation did not come as a complete surprise to Turner. Whitehead had reported to him the day before a "rumor" that the laboratory would be closed and its work contracted out. On Monday, April 2, two technicians from Mikesell's Dental Laboratory began working in Respondent's labora- tory facility in the service of Respondent's needs. The record does not set forth the details of the arrangement with Mikesell's. 3. The discharge of Cicala Cicala, as mentioned above, was a technician for Respondent from its beginnings in August 1971 until discharged by Baker on Friday, January 19, 1973; was the catalyst bringing the technicians and the Union together preliminary to the Union's demand letters of both September 5, 1972, and January-$,1973; and himself solicited three authorization card signatures in the labora- tory on January 18. Also, as reported above , Baker made some less than felicitous remarks in the laboratory the day of the discharge regarding the technicians' interest in the Union. Cicala became a dental technician in 1939. He and Williams previously had been associated professionally, and Williams hired him because of that. Cicala served for a time as Respondent's laboratory manager, but was relieved at his request because he did not enjoy the responsibility. For months before Cicala's discharge, the various staff dentists complained to Williams often and with vehemence that Cicala was an unreliable and technically poor technician and should be fired. Williams' reaction was that Cicala "worked well for me and I felt that . . . if they would attempt to be a little more lenient with him and understanding, they possibly could get work out of the man." Around Thanksgiving 1972, however, Williams smelled alcohol on Cicala, and warned him "that if I ever found that he was drinking on the job again he was going to get canned." 10 The discharge was Baker's decision alone, Williams not learning of it until his return from Mexico . Williams had never discussed with Baker the question of discharging Cicala. The afternoon of the discharge , at about 3:30 and caught up in his work, Cicala left the laboratory for the day. Technicians Larry Whitehead and Frank Measel had left before Cicala that day. Normal quitting time was about 5 p.m. David Izzett and Wayne Jambois remained to "cover" any work that might arise. Staff Dentist Ira Handelsman and Head Nurse Alice Maisac testified that they searched the building for Cicala , apparently after he had left ; and not only were unable to find him but did not see any other technicians. There is no evidence that Izzett or Jambois saw Handelsman or Maisac either , but Jambois credibly testified that Baker inquired to him of Cicala's 10 Williams was aware, when he hired Cicala, that Cicala had had a drinking problem . He testified telling Cicala at that time, "One time off the wagon, and you are going to get canned." and Whitehead's whereabouts at about 3:45 p.m. Baker mentioned something to Jambois about a crown that Whitehead was to have ready the next day, and that he was "very peeved" and would "have to fire" Cicala. In answer why he was looking for Cicala, Handelsman testified that he did not "remember exactly what the reason was. But it was necessary for me to have a denture technician." Jambois as well as Cicala was a denture technician. Maisac testified, to a similar question, that she was looking for Cicala concerning a crown for Dr. Handelsman. She explained that, while Cicala worked in the denture rather than the crown and bridge department, he at that time was supervising in the laboratory and thus was the person to ask about work in progress.11 The crown in question was Whitehead's immediate responsibility. He later learned that effort had been made on the 19th to locate him at home to return to the laboratory to work on the crown. He suffered no recriminations over the matter. After the unsuccessful search for Cicala, Handelsman and Baker discussed firing him. Handelsman lacked the authority to take such action, but Baker did not. At about 5:30 p.m., Baker telephoned Cicala at home, saying "Well, Cicala, you weren't in the lab at 3:30, so I'm going to can your ass." Cicala protested that others had left early as well. Baker then mentioned that, besides, the doctors had been complaining about Cicala's work. Baker did not mention the Union. Baker then called Jambois to report what he had just done; again, the Union was not mentioned. The next workday, Monday, January 22, Cicala reported for work in the hope that things had "cooled off." He asked Baker if he had been serious about the discharge. Baker affirmed that he had been, again mentioning that Cicala had left work early. The Union was not mentioned. Baker, although present in the room through much of the trial, did not testify regarding Cicala's discharge. It was established through Williams, however, that Baker had stated to Williams, well before the discharge, his feeling that Cicala and Jambois "were the two union promoters." Jambois testified credibly and without contradiction that he and Baker talked several times about the Union in late January 1973, and that Baker had said that it was a poor time for the Union to be "rocking the boat." It was common for the technicians to come and go without regard for working hours. As Staff Dentist Victor Hosson testified: [P]eople were coming and going in that laboratory at their own free will. Sometimes there was [personal] business to take care of, and if it was in the middle of the morning, they wouldn't even ask if they could leave-and they would just return whenever they wished. To this, Handelsman added that the other technicians left early with "about the same degree of frequency" as Cicala. it Maisac notwithstanding, Cicala as mentioned above previously had been relieved of responsibility over the entire laboratory. Williams so testified. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. ANALYSIS A. The Alleged Independent Violation of Section 8(a)(1) 12 The General Counsel alleged, in paragraph 6 of the complaint as amended at the trial, that Respondent acting through Business Manager Baker between about March 13 and 19, 1973, "threatened employees that Respondent would go out of business in order to discourage union representation." Having found as fact, in substantial conformity with that allegation, that Baker told technician Wayne Jambois, sometime between the March 13 and 19 bargaining meetings, that Dr. Williams was "very much against the union," and, in Baker's opinion , "would close down the lab" if the Union "went too far" at the bargaining table, I conclude that Respondent thereby interfered with, re- strained, or coerced an employee within the meaning of Section 8(a)(1) of the Act. B. The Alleged Violations of Section 8(a)(3) 1. The discharges attending the subcontracting of laboratory work The decision to subcontract all laboratory work was reached within a month of the Union's certification as the technicians' bargaining representative and within about a week of the one bargaining meeting in which Williams participated, in a context of past conduct by Williams revealing unmistakable opposition to the idea of dealing with the Union. In the usual case, these circumstances perhaps would compel a finding that the decision was based on antiunion considerations. But this is not the usual case . Williams returned from Mexico in February to find the business in dire financial trouble and the technicians performing with an inefficiency that had the staff dentists in a state of not-so-quiet desperation. In March, the situation took an even darker aspect with the discovery that thousands of dollars had not been remitted to taxing authorities and no longer was available for that purpose, the arrest of Business Manager Baker for allegedly embezzling the funds of the business, and the IRS ultimatum to produce $30,000 over a weekend or be padlocked. Williams testified that the IRS ultimatum was "the final contributing factor" in the decision and that the presence of the Union was not a factor. I credit him on both counts, because the decision was reached within a day or two after the ultimatum, and because of the staggering confluence of 12 No conclusions are reached concerning the legality of conduct outside the scope of the complaint. 13 As a further defense to the 8(a)(5) allegation, Respondent seems to argue that the certification underlying the allegation was invalid because Respondent did not then meet the Board's jurisdictional standards. Respondent did not contest jurisdiction in the representation case , not only submitting to the NLRB a commerce data form dated February 2, 1973, stating that it realized annual gross revenues exceeding $500,000, but entering into a Stipulation for Certification Upon Consent Election on February 7, 1973, in which it stipulated to an annual gross exceeding $500,000 and to an annual direct inflow exceeding $50,000 in the course of expressly conceding that the Board had jurisdiction. Respondent first learned during the pendency of the present trial that never, until after the untoward circumstances apart from the Union's advent. I find, therefore, without deciding whether Respondent in any case would be saved from an 8(a)(3) violation by the Supreme Court's decision in Darlington Mfg. Co., discussed below, that the contracting out of all laboratory work and the attendant discharge of the technicians were not discriminatory within the meaning of that section. 2. The discharge of Cicala I conclude that Business Manager Baker discharged Cicala because of his support of the Union, in violation of Section 8(a)(3). Not only did the discharge occur later the day Respon- dent received the Union's demand letter dated January 18, but Cicala perhaps more than any other technician was responsible for the employee support behind that letter. He arranged the January 17 meeting between the technicians and Turner, and himself solicited pledge card signatures in the laboratory on January 18. That Baker knew of Cicala's union sympathies was revealed by his comments to Williams fingering Cicala as a prime mover; and that Baker was hostile to the Union was shown by his storming into the laboratory January 19, the demand letter in'hand, to state that he thought the technicians were "cutting your own throats," and by other utterances as well. If anything, Baker's stated reasons to Cicala for the discharge-leaving early and poor performance-strength- en the inference of unlawful motive, for leaving early was a pervasive and long-tolerated practice, and poor work long had been a problem not only of Cicala but most of the technicians. Cf. Red Line Transfer & Storage Company, 204 NLRB No. 3; Scott's, Inc., 159 NLRB 1795, 1801. C. The Alleged Violations of Section 8(a)(5) Relying mainly on Fibreboard Paper Products Corp. v. N.LR.B., 379 U.S. 203 (1964), the General Counsel contends that Respondent violated Section 8(a)(5) by contracting out the laboratory work, and concomitantly discharging all the unit employees, without giving the Union chance to bargain over the matter before the underlying decision was reached, or over the effects of its implementation on the unit employees. Respondent count- ers that its action was within the realm of management prerogative; hence, that it was under no duty to bargain over the decision or its effects, citing Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263 (1965), among others. Respondent further suggests that the Union had ample opportunity to bargain in any event.13 Darlington on casual reading may appear supportive of Union's certification, had it realized gross revenues in any 12-month period of over $500,000. See sec. III , A, "Business of Respondent", supra. I conclude that since (a) Respondent in effect consented to submission of the representation question to the Board's processes, (b) the Board's assumption of jurisdiction in the representation case in no way reflected neglect on its part, (c) statutory jurisdiction doubtless existed over Respondent at all times, and (d) as previously determined, Respondent's revenues grew shortly after the Union's certification to meet the Board 's discretionary jurisdictional standard for retail enterprises, it would be contrary to the policies of the Act and do violence to the desideratum of administrative finality now to permit Respondent to escape the obligations flowing from the Board's exercise of jurisdiction in the representation case. EMPIRE DENTAL CO. Respondent's position, for the Court held "that when an employer closes his entire business, even if the liquidation is motivated by vindictiveness towards the union, such action is not an unfair labor practice ," (380 U.S. at 273-74) and that "a partial closing is an unfair labor practice under Section 8(a)(3) if motivated by a purpose to chill unionism in any of the remaining plants ...." 380 U.S. at 275. Moreover, while, as the Court's reference to Section 8(a)(3) suggests, Darlington did not touch the issue of an employer's duty under Section 8(a)(5) to bargain with an incumbent union over a decision to close, the Board since has stated regarding a partial closing in an 8(a)(5) context that it does "not believe that the Act contemplated eliminating the prerogative of an employer . . . to eliminate itself as an employer." Summit Tooling Co., 195 NLRB 479. The Board thus appears to have closed the circle, having previously hinted in Ozark Trailers, Inc., 161 NLRB 561, 564-65, that it would not require bargaining over "a decision to go out of business completely." The present case, however, is not so much one of closure as of contracting out. It is one thing to go out of production, quite another-and qualitatively different-th- ing to select a means of production in competition with the bargaining unit. This vital distinction renders Darlington and Summit Tooling Co. inapposite. See Florida-Texas Freight, Inc., 203 NLRB No. 74, and Hyos de Ricardo Vela, Inc., 200 NLRB No. 43, both decided since Summit Tooling Co. and both honoring the distinction sub silentio. More apposite to the present situation are Fibreboard and the copious body of case law that has grown around it. Fibreboard Paper Products v. N.L.R.B., 379 U.S. 203 (1964). Fibreboard involved an employer's contracting out of in- plant maintenance work, and the attendant discharge of its maintenance employees, without first permitting the employees' bargaining representative to discuss the matter. The reasons for the change were validly economic and free of antiunion taint. The Court held that "the replacement of employees in the existing unit with those of an independent contractor to do the same work" was a mandatory subject of bargaining under Section 8(a)(5) and 8(d) of the Act, explaining (379 U.S. at 214): [I It is contended that when an employer can effect cost savings . . . by contracting the work out, there is no need to attempt to achieve similar economies through negotiation with existing employees or to provide them with an opportunity to negotiate a mutually acceptable alternative . The short answer is that, although it is not possible to say whether a satisfactory solution could be reached, national labor policy is founded upon the congressional determination that the chances are good enough to warrant subjecting such issues to the process of collective negotiation . . . . [I It is not necessary that it be likely or probable that the union will yield or supply a feasible solution but rather that the union be afforded an opportunity to meet management 's legiti- mate complaints that its maintenance was unduly costly. Further to this point, the Board observed in Ozark Trailers, Inc., supra, at 161 NLRB 568, a lineal descendant of Fibreboard: 867 [A]n employer's obligation to bargain does not include the obligation to agree, but solely to engage in a full and frank discussion with the collective-bargaining representative in which a bona fide effort will be made to explore possible alternatives, if any, that may achieve a mutually satisfactory accommodation of the interests of both the employer and the employees. If such efforts fail, the employer is wholly free to make and effectuate his decision . Hence, to compel an employer to bargain is not to deprive him of the freedom to manage his business. Implicit in Fibreboard, however, is the qualification that a contracting-out decision attended by considerations not "suitable for resolution within the collective bargaining framework" need not be subjected to bargaining ritual. 379 U.S. at 213-14. The Board, following this lead, repeatedly has stated that it does not read Fibreboard "as laying down a hard and fast new rule to be mechanically applied regardless of the situation involved." Sucesion Mario Mercado E Hyos, 161 NLRB 696, 700; Westinghouse Electric Corp., 150 NLRB 1574, 1576; Shell Oil Co., 149 NLRB 305, 307. The Board thus has refused to find a violation where "it seems certain that no amount of give- and-take in bargaining negotiations could have forestalled the Respondent's inevitable decision" (Sucesion Mario Mercado E Hyos, supra, at 161 NLRB 700); or where the decision involved such "a significant investment or withdrawal of capital [affecting] the scope and ultimate direction of an enterprise" as to "lie at the very core of entrepreneurial control." General Motors Corp., 191 NLRB 951. Even when an employer's unilateral subcontracting decision is prompted by considerations "suitable for resolution within the collective bargaining framework," Section 8(a)(5) is not necessarily violated. The Board in Westinghouse Electric Corp., supra, set forth several criteria, which if met more or less cumulatively nevertheless warrant complaint dismissal . They are if the contracting out was motivated solely by economic considerations, comported with the employer's traditional business opera- tions and established past practice,did not have demonstra- ble adverse impact on the unit employees, and the union had had opportunity in previous negotiation to bargain about the employer's subcontracting practices. See also, Tellepsen Petro-Chem Constructors, 190 NLRB 433, fn. 1. Whether an employer's subcontracting decision is of a nature entitling the union first to bargain-i.e., whether it is a mandatory subject of bargaining-turns, then, on the considerations attending that decision. If they were "suitable for resolution within the collective bargaining framework," the union is entitled unless the exonerating criteria of Westinghouse Electric Corp. are met. If, on the other hand, those considerations were "at the very core of entrepreneurial control" or otherwise such "that no amount of give-and-take in bargaining negotiations could have forestalled the . . . inevitable decision," the union is not entitled. But apart from whether an employer's unilateral decision falls within or without the Fibreboard prohibition, the employer generally must afford the union "an opportunity to bargain over the rights of the employees whose employment status will be altered by the managerial 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision." Ozark Trailers, Inc., supra at 161 NLRB 563, quoting from N.L.R.B. v. Royal Plating and Polishing Co., 350 F.2d 191, 196 (C.A. 3, 1965). See also Summit Tooling Co., supra. Applying these principles to the present case, I conclude without need for labored analysis that Respondent was under a duty to bargain over the effects on the discharged technicians of its subcontracting decision , whether or not under a duty to bargain over the decision proper. Summit Tooling Co., supra; Ozark Trailers, Inc., supra. I also conclude, but with less ease, that Respondent was under a similar duty regarding the decision . The saving Westinghouse criteria do not obtain because of the harshly adverse impact of the decision on the unit employees; the absence, despite the contracting out of porcelain work, of an established past practice of subcontracting ; and, as is discussed more fully below, the Union's lack of opportuni- ty in previous negotiations to bargain over Respondent's subcontracting practices. And, while the precipitating event was the IRS ultimatum, Respondent long since had been mulling alternatives to lower the expense and improve the quality of the laboratory product-contracting out among them. The ultimatum did not obviate having laboratory work done by someone, in part still in Respondent's own laboratory, and it is plain that the ultimatum triggered the contracting out not because it changed the character of, but only because it accentuated, the underlying and historic problems of laboratory expense and quality. Those problems in turn were a function of the technicians' salary levels and skills-matters which, far from being at the core of entrepreneurial control, are preeminently appropriate for treatment within the bargain- ing framework. It might be contended, nevertheless, that the IRS ultimatum introduced such urgency to an already tortured situation that no amount of bargaining give-and-take could have forestalled Respondent's decision . This contention would not persuade. Implementation did not occur for several days after the decision was reached, indicating that some delay for bargaining could have been countenanced; and, IRS having been appeased the Monday before the Friday implementation, there was no apparent necessi- ty-except perhaps bookkeeping expediency-why imple- mentation could not have waited a while longer in the interest of bargaining. Yet, rather than invite the Union's counsel, which conceivably would have contained conces- sions of real ameliorative value while preserving the jobs of at least some of the unit employees , 14 Respondent designedly kept it in the dark until after implementation. It having been determined that Respondent was under a duty to give the Union a chance to bargain not only over the effects of the subcontracting, but the underlying decision as well, the question remains whether, despite Respondent's hide-the-ball scheme, such a chance was given. Williams alluded to the possibility of contracting out during the March 19 bargaining session , and the Union's Turner learned from a unit employee on March 29-several days after the decision had been reached and one day before implementation-of a rumor about it. Otherwise, the Union heard nothing and, as noted, purposely was kept uninformed. Williams' allusion at the March 19 session scarcely can be said to have alerted the Union that subcontracting was so immediate a prospect as to call for bargaining, particularly since the overriding issue at that meeting was job descriptions-hardly a harbinger of impending change -and a followup meeting was scheduled to deal further with that subject. See Florida-Texas Freight, Inc., supra. Nor can it be said that the Union, by Turner's failure to request bargaining after hearing the rumor and after Williams' postimplementation disclosure, waived any right to bargain over the decision or its effects. The Union by then was presented with a fait accompli that largely had emasculated its bargaining capability. As the Board stated in Ozark Trailers, Inc., supra at 161 NLRB 564: Respondents, by withholding all information of their intentions to close down and terminate the operations at the Ozark plant, prevented the Union from bargain- ing over the effect of the plant closing on the employees .... It thus appears that the Union, during the most critical period, and at the very time when bargaining would have been most productive, was completely unaware of Respondents' intention . . . . After so concealing its intentions from the Union, Respondents cannot now persuasively argue that it was not required to bargain with the Union because the Union did not request such bargaining. Based on the foregoing analysis, I conclude, in agree- ment with the General 'Counsel, that Respondent violated Section 8(a)(5) by its failure to afford the Union a chance to bargain over its decision to subcontract the laboratory work and over the effects of that decision on the unit employees. V. CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing an employee as found herein, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 2. By unlawfully discharging William Cicala as found herein, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 3. By contracting out its laboratory work, and concom- itantly discharging the entire bargaining unit of laboratory employees, without giving the Union opportunity to bargain over the underlying decision or its effects on the unit employees as found herein , Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act in any other manner. 14 It is worth remembering in this regard that Williams told technician conditions permitted. Whitehead that Respondent would hire three of the technicians back when EMPIRE DENTAL CO. 869 VI. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from unilaterally subcontracting unit work or otherwise making changes in its employees' terms and conditions of employ- ment without first consulting with the employees ' designat- ed bargaining representative ; cease and desist from the other unfair labor practices found ; and cease and desist from in any other manner interfering with , restraining, coercing, and discriminating against, its employees. Affirmatively, it is recommended that Respondent be ordered to restore the status quo ante by restoring the laboratory operation and offering to William Cicala and the other laboratory employees reinstatement to the positions they held before their unlawful terminations, without prejudice to their seniority and other rights and privileges; and to make them whole for any loss of earnings and other benefits suffered because of Respondent's unlawful discharges of them.15 Their losses of earning shall be computed as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and F. W. Woolworth Company, 90 NLRB 289. [Recommended Order omitted from publication.] 15 The Supreme Court expressly considered and approved this kind of remedy in Fibreboard' 379 U.S, at 215-16. The Board in special circumstances, however, imposes gentler sanctions. For instance, in Ozark Trailers, Inc., supra; Royal Plating and Polishing Co., 148 NLRB 545; and Renton News Record 136 NLRB 1294, it did not order resumption of the discontinued operations because intervening events had made resumption inherently impractical . This is not so in the present case, Respondent's laboratory facility still existing and being used as such by the subcontractor. Similarly, the Board in those cases relaxed or eliminated the backpay aspect of the remedy. While imposition of a total backpay remedy in the present case causes me some discomfort, and doubtless will cause Respondent more, I see no bases such as existed in those cases for its relaxation or elimination.