Garcia Corp.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Lange Company, A Division of Garcia Corpora- tion and Pattern Makers League of North America, Denver Association, AFL-CIO. Case 27-CA-4466 January 23, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On September 30, 1975, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The Lange Company, A Division of Garcia Corporation, Broomfield, Colora- do, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Denver, Colorado, on July 29 and 30, 1975. The complaint and notice of hearing was issued on May 23, 1975, by the Regional Director for Re- gion 27 of the National Labor Relations Board, on the basis of an unfair labor practice charge filed on March 27, 1975, and alleges violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties have been afforded full opportunity to ap- pear, to introduce evidence, to examine and cross-examine witnesses, and to argue orally and file briefs. Based on the entire record, upon the closing comments by counsel for the Charging Party and the briefs filed on behalf of the General Counsel and Respondent, and upon my observa- tion of the demeanor of the witnesses, I make the following findings of fact and conclusions of law. 1. JURISDICTION At all times material, The Lange Company, a Division of Garcia Corporation, herein called Respondent, has been a corporation duly organized under and existing by virtue of the laws of the State of New Jersey and has maintained its principal office and place of business at Broomfield, Colo- rado, where it has engaged in the manufacture and sale of ski equipment. In the course and conduct of these business operations, Respondent annually sells and ships goods and materials valued in excess of $50,000 directly to points and places outside the State of Colorado. Therefore, I find that Respondent has been at all times material herein an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Pattern Makers League of North America, Denver Asso- ciation, AFL-CIO, herein called the Union, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. ISSUE Whether Respondent has failed and refused to bargain collectively with the Union as the representative of Respondent's pattern shop (and tooling) employees, in vio- lation of Section 8(a)(5) and (1) of the Act, by failing and refusing to meet and bargain with the Union, taking the position that the collective-bargaining unit no longer exists, taking the position that the certified bargaining unit is not appropriate, unilaterally transferring a substantial number of employees from the unit to positions outside the bar- gaining unit and changing their rates of pay, and unilater- ally granting benefits to employees represented by the Union by extending coverage under Respondent's pension plan and group life insurance policies in order to under- mine the Union and to destroy its support by the majority of the employees. IV. FINDINGS OF FACT A. Postcertification Bargaining On November 1, 1974, the Regional Director for Region 27 issued a Decision and Direction of Election in Cases 27-RC-4888 and 4908 in which he concluded, inter aha, that two separate bargaining units of employees at Respondent's Broomfield facility were appropriate: a pro- duction and maintenance unit for which United Rubber, Cork, Linoleum and Plastic Workers of America, AFL- CIO sought certification as the bargaining representative I 1 A majority of the employees in that unit did not vote in favor of repre- sentation at the representation election 222 NLRB No. 91 LANGE COMPANY and a pattern shop unit 2 for which the Union sought certi- fication as the bargaining representative. So far as the rec- ord discloses, no request for review of this Decision was filed and, accordingly, despite Respondent's contention that such a unit is not appropriate, I find that it is an appropriate unit. A majority of the employees in the pat- tern shop unit voted in favor of representation by the Union and on December, 13, 1974, the said Regional Direc- tor certified the Union as the exclusive representative of the employees in that unit. On January,9, 1975,3-Respondent's executive vice presi- dent, Emil DeSimone, authored a letter to the Union's then business manager and financial secretary, Lawrence Wil- liam Berg, in which, among other things, the Union was invited to forward whatever proposals it intended to make so that they could be studied prior to commencing negotia- tions. On January 20, Berg mailed copies of these proposals to DeSimone and to James N. Graham, Respondent's Broomfield plant general manager,4 along with a covering letter stating that he had been unable to prepare these pro- posals at an earlier date. In this letter, Berg also pointed out: We have attempted to cover all the things which we are going to request in our first contract with you, however we cannot go into all these items in full detail at this time. Examination of the proposals transmitted to Respondent shows that matters such as recognition, union security, job description, pay rates, seniority, vacations, holidays, and leaves of absence were covered. Also listed were: 15. Group Insurance (a) Health (b) Sickness and accident compensation pay * * * 17. Pension (Pattern Makers Pension Trust Fund) No request for a bargaining meeting on any specific date was made in the letter and there were apparently no further communications between the parties until early-February when Respondent's attorney, Joseph S. Oberwager, reached Berg by telephone and requested that Berg and the employees on the negotiating committee meet in Vail, Col- orado, where Oberwager was skiing on vacation. Berg pointed out that it would be difficult for the employees to journey to Vail, but as he had intended to go there for a weekend of skiing, he would be able to attend such a meet- ing. On Saturday, February 8, Berg participated in a dinner meeting with Oberwager and Graham at Vail. Berg testi- 2 As described in the certification of representative, the unit is All pattern.shop (and tooling) employees at the Employer's Broomfield, Colorado, plant ; BUT EXCLUDING office clerical employees , and all guards, professional employees and supervisors as defined in the Act, and all other employees. 3 Hereinafter, unless otherwise stated, all dates occurred in 1975 4 Respondent did not deny the allegations in the complaint that DeSi- mone and Graham were supervisors within the meaning of Sec 2( 11) of the Act and agents of Respondent 559 fied that his primary objective was to reach agreement upon a date for the commencement of negotiations, but that he had also wanted to discuss, Respondent's position on the Union's proposals. However, during the meeting, Oberwager said that since Respondent's sales had not ma- terialized as expected and since Respondent was experienc- ing financial difficulties, it would probably be too costly to bring out a new model ski boot in the coming year. Conse- quently, said Oberwager, Respondent intended to effect layoffs and transfers of pattern shop employees because there would not be a need for the present complement of pattern and mold shop employees as the pattern shop would be needed only to maintain existing equipment. Ob- erwager then listed the names of at least some of the em- ployees who would be laid off or transferred and requested Berg not to report this to the employees, -as Respondent wanted to break the news itself. Berg testified that he felt that Oberwager's request, "was probably proper also, and I honored that." Although neither Oberwager nor Graham invited Berg to express an opinion concerning the layoffs and reductions and while there was no discussion of alter- native steps that might be taken, Berg testified that: The reason I didn't protest or try to bargain, I wasn't aware that this was an option. I felt if the Company's production was slowing down, it was their option to operate their plant as they saw necessary, and I didn't realize that there was-that this was a possibility, or that there was anything that we could resolve. Thus, on Monday, February 10, Respondent notified the employees of the changes that were to be effected, as de- scribed more fully infra. Three days later, on Thursday, February 13, the same three persons who had met in Vail again met, this time with the Union's president, Bob Chilel- li, and employees Val Kimmel and Robert Claycomb in attendance. In essence, the first part of the meeting was absorbed with a more detailed description by Oberwager of the financial plight of the ski boot industry in general and of Respondent in particular. When Oberwager sug- gested that, in view of the situation, negotiations be defer- red until the following year when financial conditions might be more stable, Chilelli protested- that the certifica- tion would expire by that time. Oberwager then proposed that negotiations be postponed until fall, thereby falling within the certification' year. This proposal was also reject- ed by the Union. When the subject of wages arose, the Union took the position that inasmuch as Respondent had previously executed written agreements with patternmak- ers Kimmel and Edward Wilke to grant them an annual cost-of-living increase, a similar increase should be granted to other employees in the departmental unit. Oberwager replied that Respondent could hardly give an increase to one segment in the plant without considering the effect on the remaining employees. Following a caucus, the Union then proposed that a contract be executed embodying only noneconomic matters, such as recognition, union security and seniority, save for a cost-of-living increase similar to that which Respondent had already promised to Kimmel and Wilke. Such a contract, proposed the- Union, would also contain a provision whereby it could be reopened in the fall for discussion of other economic matters, such as 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holidays, vacations, and pensions. Oberwager replied that he did not feel that Respondent could enter into such a contract, but that he would have to speak with Garcia Cor- poration officials in New Jersey and notify the Union of the final answer to this proposal. Oberwager also pointed out that, in view of the transfers and layoffs that had oc- curred in the department, he had been meeting with the Union as a courtesy and did not have to meet at all inas- much as the unit was no longer sufficiently populated. As promised, by letter dated March 4, Oberwager noti- fied Berg that he did not believe that it would "be possible at this time to make any binding commitments" due to the "uncertain economic situation" which had led to a decision not to change patterns "for next season, and perhaps sever- al seasons thereafter," thereby making a pattern depart- ment unnecessary as "only one pattern maker will be need- ed and the dispersal of the other employees, either in other departments, or on layoff is also certain." More cogently, the letter goes on to state: In effect, as I originally said to you, the bargaining unit no longer exists. Whether it will ever be reconsti- tuted is not certain. This would depend on the econo- my, and the fortunes of the ski business. On March 8, Berg transmitted a reply letter to that sent by Oberwager. In his letter Berg states, in pertinent part: You stated that you had told me that our bargaining unit no longer existed. I do not remember you saying that at our meeting, but at this time I feel that we still have a unit, even though the men from that unit have different supervisors, they are still doing the same work and are actually in the same shop working on the same benches. We would like to get on with the negotiating of a con- tract. If we don't hear from you in regards to a meet- ing within ten days we will retain counsel again and file charges of unfair labor practice which would not be in the best interest of good employer-employee re- lations. Upon receipt of Berg's letter, Oberwager replied, by letter dated March 17, stating, inter alia: Regarding your letter of March 8th, I fear that the information being received by you with regard to Lange operations is inadequate. As I told you in my March 4th letter, the Pattern Makers unit no longer exists. The Company will not create a new line of boots for this year and possibly next year and the year thereafter. It is not economically feasible, and the ex- penditure of a quarter of a million dollars unjustified. Further, the ruling of the Board was not and is not acceptable, in the sense that apart from Wilke and Kimmel, the other men in that department were nei- ther pattern makers nor helpers nor apprentices. As a matter of courtesy to you personally, we were willing to discuss mutual problems, but under normal circum- stances, I would certainly challenge the Board's ruling through Board proceedings and ultimately into the courts. There then followed a hiatus in communications be- tween Respondent and the Union until on May 9, Farrell Gerland, newly elected business manager of the Union, wrote to Oberwager , renewing the Union's request "for a definite date and time for a meeting with that firm [Res- pondent] to begin negotiating a contract .... " At Oberwager's direction, Graham called Gerland on May 27 and, following a brief discussion concerning letters sent by the Union to Respondent's outlets in connection with this matter, offered to meet but only for the purpose of review- ing the history of Respondent's relationship with the Union and not to negotiate a contract. Although a meeting was scheduled for June 10 or 12, after conferring with the Union's attorney, Gerland decided that as the purpose for which Respondent wanted to meet involved only subjects which were then covered by unfair labor practice charges, the best that could be obtained would be a rehash of old matters and such discussions might prejudice the Union's charge. Consequently, by letter dated June 9, Gerland can- celed the meeting, although in the letter he again invited Respondent to bargain concerning "wages, hours of em- ployment, and conditions of employment." This invitation was never accepted. B. Operations in the Pattern Shop The production of polyurethane ski boots through the Langeflex or cast method of production is initiated in the pattern shop. Working from engineering drawings, a wood- en pattern is first produced, possessing all cosmetics, i.e., lettering, straps, etc., which will be contained by the final boot. If the model is one which will be used for production, the pattern is normally made by employees classified as patternmakers, but if it is a prototype, it usually is made by somewhat less experienced employees classified as mod- elmakers. In either event, the wooden pattern is not a sin- gle piece, but is cut down the middle, toe to heel, so that it comes in two parts. A final boot could be produced directly from the wood- en pattern. However, as wood does not last as well as plas- tic, the two wooden pattern halves are given to employees, classified as tooling finishers, for preparation of plastic models. This is accomplished by first casting epoxy over the two halves of the wooden pattern, thereby producing a female epoxy tooling. Once the latter is cured, it is then used to make two types of male patterns. The first is made by pouring epoxy directly into the female epoxy tooling halves and, once this is cured, by removing the two male halves created, "bucking" them together, plating or bolting the completed unit to aluminum plates and, finally, scrap- ing, adding cosmetics, and polishing it. This is referred to as the male master tooling. A second male pattern is creat- ed by lining the female epoxy tooling halves with wax to the thickness of the boot shell that will ultimately be pro- duced and by then pouring epoxy into the remainder of the cavities of the female epoxy tooling halves. Once cured, the male epoxy halves thereby formed are removed and "bucked" together to form what is known as the plug. Once these operations are finished, the pattern shop work on the boots is completed and the male master tooling and plug are sent to the mold repair department, located in another building across the street from that in which the LANGE COMPANY 561 pattern shop is housed. At the time of the Decision and Direction of Election, there were two employees classified as patternmakers, one employee classified as a modelmak- er, and four employees classified as tooling finishers, one of whom bore the special title of tooling leadman. To complete the process, in the mold repair department, the male master tooling is placed in an aluminum backing frame or box, after which urethane or polyurethane plastic is poured into the frame around the tooling to create an- other female mold, this time called the production female mold. Once postcured in an oven, the frame is broken away from the production female mold and the plug is then inserted into that mold, thereby permitting the final boot shells to be manufactured by pouring polyurethane into the space between the production female mold and the plug. C. The Decision To Cease Utilizing the Langeflex Process There is no contention that Respondent's decisions in connection with pattern shop employees were motivated by their activity on behalf of the Union or by the fact that the Union had become the bargaining representative of those employees. Rather, for some time, Respondent had been experiencing considerable financial difficulty at the Broomfield facility in the highly competitive ski boot man- ufacturing industry where, like the automotive manufactur- ing industry, sales success is determined in considerable measure by the ability to develop popular new models. In June 1974, Respondent had two boot models under devel- opment: its own Super Banshee boot and the Post boot for which Respondent had paid a royalty fee to the inventor with whom Respondent then began work to develop the boot. During that month, Respondent had one of its peri- odic meetings of high marketing officials from facilities throughout the world. At this meeting, discussion ensued concerning the merits of continued production using the Langeflex method, which by this time was being used by only one other ski boot manufacturer, versus conversion to the considerably less costly injection-method which was then being utilized by independent shops for Respondent's Italian facility. No decision was reached at this meeting. At a similar meeting in December 1974,5 a decision was initially reached to discontinue development of both the Super Banshee and Post models as neither model appeared to have sufficient sales potential to justify the expenditures which continued development under the Langeflex method would entail. However, at the suggestion of Graham and of Broomfield director of engineering, Edward Chalmers, it was ultimately decided to send the Super Banshee model to Italy for production of a single-size prototype using the injection-method. Apparently those present harbored some hope that the savings in cost over the cast method might justify further production development of this style boot. At the same time, the Post boot was also sent to Italy for further development. Thus, by the end of 1974, the production of prototype ski boots had ceased at Broomfield. In view of this, during 5 The record does not disclose whether this meeting was conducted prior a January meeting of Graham, Chalmers, and DeSimone, a' decision was made to retain only patternmaker Edward Wilke in the pattern shop and to either lay off or transfer the remaining employees in that department. This decision was not implemented, however, until the Monday follow- ing Oberwager and Graham's Vail meeting with Berg. On that Monday, it was announced that Wilke would continue to work in the pattern shop; patternmaker Val Kimmel and moldmaker Al Mirabel would be laid off; tool finisher Dave Carlson would be permanently assigned to the ma- chine shop where he had been working temporarily since January; tool finisher Jack Newman and tooling leadman Robert Lee Claycomb would be transferred to the mold repair department; and tool finisher George Doyle would become an expediter in the maintenance department. D. Post-February 10 Pattern Shopwork Wilke continued working in the pattern shop after Feb- ruary 10, performing primarily patternmaker's duties, but, consistent with Respondent's January decision, beginning also to perform some of the duties of tooling finishers. However, he was not alone in the pattern shop, for Clay- comb continued to work there, save for a 2-week period in April when he reported to the mold repair department, un- til July 3, when he was advised that his duties would be taken over by Wilke, that he would be transferred perma- nently to the mold repair department to perform mold re- pair duties, and that his pay rate would be reduced from $5.55 to $4.52 an hour and his workweek changed from one of 10 hours a day, 4 days a week to one of 12 hours a day, 3 days a week. Baum testified that Claycomb's wages were reduced in July because he had begun to work at a lower labor grade and that his wages had not previously been reduced because, until July 3, Claycomb had continued to perform tool finishers' work. Following the implementation of the February 10 an- nouncement, Claycomb and Wilke spent 3 weeks together reworking a prototype, presumably the Super Banshee, which had been under development and which was then sent to Italy for further development. Although Respon- dent contends that this was "carryover work," work in pro- gress which had to be completed on February 10, it did not dispute Claycomb's testimony that this work had not been done until March or April nor Wilke's testimony that it had not been done until June. After February 10, Claycomb continued to repair dam- aged male master toolings for patterns already in produc- tion, estimating that between July 1, 1974, and June 30, he had spent 25 to 30 percent of his time performing this type of work. Both Claycomb and Wilke testified that this type of work had always been performed by tool finishers in the pattern shop and had not been performed by employees in the moldroom or mold repair department. However, Respondent's witnesses-Graham, Chalmers, and Baum- each testified that minor repairs to male master toolings had always been handled by mold repair department em- ployees and that only when the damage was substantial were the repairs effected by tooling finishers. In explica- tion, Baum testified,that minor damage would be a matter to or after the representation election in Cases 27-RC-4888 and 4908. such as a chip to a nontextured or nongrained area. How- 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, he acknowledged that approximately 80 percent of the surface of the textured boot used for illustration pur- poses during the hearing was grained or textured. More- over, while Baum testified that, during the year ending July 1, only- twice was there major damage to a male master tooling, Claycomb testified that during that 1-year period, he had performed approximately 30 or 40 repair jobs. Baum also testified that major damage could be repaired in either the pattern shop or in the maintenance department. However, no evidence of specific repairs by maintenance department personnnel was produced. Further, neither Graham nor Chalmers made any reference to the mainte- nance department when testifying concerning these repairs and both referred only to effecting repairs in either the pattern shop or the mold repair department. Significantly, although Claycomb did spend 2 weeks in the spring working in the mold repair department, the work which he performed was modification of soleplate epoxy tooling. Baum conceded that this was work which was nor- mally done by tool finishers and not by mold repair de- partment 'employees. Of equal significance were the cir- cumstances of Claycomb's return to the pattern shop, for it was occasioned by an assignment to recast size nine male master toolings. This led Claycomb to request that he be permitted to return to working in the pattern shop as most of the supplies and equipment he would need to perform this work were located there. The request was granted and Respondent concedes that this job, which lasted 2 months, was work that had been performed by the tooling finishers during the time that the pattern shop had been in opera- tion. Indeed, the latter could not be disputed, for Clay- comb had to repour female epoxy toolings, make new male master toolings from them, and then plate the latter (see IV, B, supra). While both Claycomb and Wilke testified to one or two occasions when Newman had worked in the pattern shop, this appears to have occurred only sporadically and for limited periods of time. Further, although Wilke testified that Carlson had done both soleplant tooling and soleplate modification in the pattern shop, Carlson did not corrobo- rate this testimony, although he did testify that following his transfer to the machine shop, he had done the same work as he had performed in the pattern shop for approxi- mately 15 percent of his working time. He conceded, how- ever, that 85 percent of his time was spent on prototype ski tooling and maintenance work, clearly, not pattern shop functions. - Following Claycomb's departure from the pattern shop in July, Respondent then subcontracted modification of the toe area of a male master tooling for one size of a boot already under production. It is clear that patternmaking work and tooling work not normally performed in the pat- tern shop had been subcontracted in the past. However, Graham admitted that "epoxy master tooling for making boots was never subcontracted." Yet, at no point did Re- spondent choose to explain what had led it to break with tradition and subcontract this work. Nor did it explain why it had provided materials which it had purchased previous- ly to the subcontractor, Denver Pattern, in this instance when this had not been its practice in the past. E. The Pension Plan In March, Garcia Corporation instituted a new pension plan, applicable to all of its employees, including those at Broomfield. Graham testified that in November 1974 he became aware that the plan would be instituted. Between February 12 and 15, 500 copies of the plan and of covering letters from Thomas T. Lenk, Garcia Corporation's presi- dent, were received at Broomfield for distribution to the employees, but only after clearance for distribution was secured from Executive Vice President DeSimone. The sec- ond page of Lenk's letter states, in pertinent part: This means that the employees of our Lange Broom- field division, our largest; of Simplex, our tennis rack- et manufacturing division; and others shall enjoy the same pension benefits as those employees at corporate headquarters. The only exceptions are the few employ- ees in the Lange pattern department, who must be considered separately, and the small number of hourly paid employees of our American Eagle tennis racket gut division, in Chicago, who are covered by a sepa- rate pension plan. Graham testified that, when he subsequently spoke with DeSimone, he expressed concern about the pattern shop exclusion as Respondent was "in a situation of collective bargaining" and as the effect of the exclusion would be to preclude Wilke's participation in the plan. Apparently De- Simone found merit in these observations for he and Gra- ham then authored a letter, dated March 13, which states, inter aba: We are happy to add this personal note to Mr. Lenk's letter to Garcia employees. We are delighted that you are now included in the Pension Plan of The Garcia Corporation and shall have the same pension benefits that Garcia corporate headquarters' employees have. Lange pattern shop employees are included in the Pension Plan, a decision made since the date of Mr. Lenk's letter. The entire package-the copies of the plan, Lenk's letter, and the March 13 letter-were then distributed to the em- ployees. Graham conceded that at no point did he notify the Union of Respondent's intention to institute the pen- sion plan and there has been no bargaining concerning the plan. V. ANALYSIS A. The February Transfers and Layoffs of Pattern Shop Employees In appraising-the legality of Respondent's conduct from January through July, it should not be forgotten that there is no allegation that Respondent was attempting to dis- courage membership in the Union in violation of Section 8(a)(3) of the Act by any of the actions which it took. Consequently, the validity of the reasons advanced by Re- spondent to support the actions which it took is not disput- ed in this regard. Further, although the complaint alleges that Respondent LANGE COMPANY 563 has failed and refused to meet and bargain with the Union since December 30, 1974, it is clear that no violation of Section 8(a)(5) can be predicated upon Respondent's con- duct prior to February. Thus, while DeSimone's letter of January 9 makes reference to "correspondence" between Berg and Graham, no such correspondence was produced at the hearing and no other evidence was offered that would show that Respondent had been failing to meet and bargain with the Union following the certification of De- cember 13, 1975. Indeed, in the January 9 letter, DeSimone invited the Union to submit its proposals prior to meeting so that negotiations could be facilitated. Yet, it was not until 11 days later that the Union complied with this re- quest and then, the proposals forwarded were not, as Berg observed in his letter and as shown by the quite summary "Group Insurance" proposals, complete in all respects. Moreover, neither in his January 20 letter nor at any other time that month, so far as the record discloses, did Berg attempt to arrange for a meeting on any specific date with Respondent. In fact, it was Oberwager who initiated the action which led to the February 8 meeting at Vail. In this regard, in his brief counsel for the General Counsel at- tempts to portray this meeting in a casual fashion by as- serting that, on February 8, the parties "all happened to be in Vail skiing and had dinner together." Yet, it is abun- dantly clear that Oberwager did make an effort to conduct a formal session on that date for, when he contacted Berg to arrange for this meeting, he requested that the employ- ees on the Union's bargaining committee also attend. While the latter proved impractical, this can hardly be held to have been Respondent's fault, particularly as there is no evidence showing that Respondent had been avoiding bar- gaining at an earlier date. Therefore, I find that Respondent did not violate Section 8(a)(5) and (1) of the Act prior to February. It is equally clear that, on February 8, Respondent did advise Berg that, due to financial difficulties which made it too -costly to bring out anew ski boot, Respondent intend- ed to lay off and transfer employees from the bargaining unit. Berg neither protested such action nor requested that Respondent bargain concerning either the decision itself or the effects of that decision. As the United States Court of Appeals for the District of Columbia Circuit pointed out in International Ladies' Garment Workers Union, AFL-CIO v. N.L.R.B., 463 F.2d 907, 918 (C.A.D.C., 1972): It is well settled that when a union has sufficiently clear and timely notice of an employer's plan to relo- cate, close or subcontract and thereafter makes no protest of effort to bargain about the plan, it waives its right to complain that the employer acted in violation of Section 8(a)(5) and (1). In view of the fact that Berg failed to protest or make an effort to bargain about the decision, there is a substantial basis for finding that the Union waived its right to com- plain thereafter about the layoffs and transfers. True, as is pointed out in the General Counsel's brief, Oberwager did not detail the course of action which Re- spondent had decided to pursue in not developing a new model boot at Broomfield and in deciding to experiment with the Super Banshee model in Italy. Yet, he did notify Berg of the items of prominent concern to the Union-that employees which it represented would be laid off and transferred. It was left to Berg to ask whatever questions he desired. At no point did Oberwager attempt to conceal any facet of the decisions reached by Respondent in arriving at the decision concerning unit personnel. So far as the record discloses, he would have told Berg about the underlying decisions had the latter inquired. In these circumstances, I find that Respondent did provide adequate notice to Berg, sufficient to enable the Union to ask questions regarding the matter or to propose bargaining had it so desired. See: International Offset Corp., et al., 210 NLRB 854 (1974); U.S. Lingerie Corporation, 170 NLRB 750, 751-752 (1968). Accordingly, it cannot be found that Respondent acted to foreclose bargaining about this matter. Kingwood Mining Company,-210 NLRB 844 (1974). Indeed, examination of the conversations and correspondence in this matter dis- closes that the Union has still not made any request to bargain concerning either this decision itself or the effects of that decision. Counsel for the General Counsel, however, argues that Respondent's conduct is tainted by virtue of the fact that it had already made the decision to transfer and lay off em- ployees before advising the Union. Yet, in no case has the Board held that an employer must defer making a decision concerning terms and conditions of employment until it has first conferred with the representative of its employees. The requirement is that, after reaching the decision, the employer must then notify the representative and afford the opportunity to discuss that decision and to consider alternative proposals. Thus, in. Ozark Trailers, Incorporated, 161 NLRB 561 (1966), the Board made it clear that the illegality lay not in the fact that the employer had first made the decision before consulting with its employees' representative. The illegality lay in the implementation of that decision prior to affording the representative an op- portunity to advance and discuss alternative courses of ac- tion. Id at 568. This is also illustrated in Moffitt Building Materials Com- pany,_ et al., 214 NLRB No. 110 (1974), where the Board found that the employer had not violated the Act even though it had made a decision to liquidate its business without so much as a fare-thee-well to the bargaining rep- resentative, and where the latter then learned of that deci- sion, but made no effort to bargain-with the employer. Id. Similarly, in Association of Motion Picture and Television Producers, Inc., 204 NLRB 807 (1973), the representative first learned of the decision when it was announced by the employer. Nonetheless, no violation was found as no bar- gaining was thereafter requested by the representative. If, as is contended in the instant case, it were the making of the decision prior to consulting with the representative that constituted the violation, then violations would have been found in both of these cases. See also: A-V Corporation, 209 NLRB 451, 453-454 (1974). Indeed, to accept the General Counsel' s argument in this matter would be to create great instability in bargaining relationships, for if formulation of decisions had to be de- ferred, then bargaining would be reduced to being con- ducted hypothetically in a vacuum. Employers are entitled to first reach a decision. This provides the starting point for 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any bargaining which then might follow. However, em- ployers must then be willing to consider the alternatives proposed by the bargaining representatives before imple- menting those decisions .6 Thus, once the employer notifies a representative of a decision affecting employees which the latter represents, the burden is upon the representative to indicate whether it wishes to pursue the matter by ob- taining further details and by bargaining with the employer concerning the matter. Conversely, it is the burden of the employer to supply the union with whatever information concerning the decision which the latter seeks and to listen with an open mind to whatever alternative proposals are advanced. Here, the Union neither sought further informa- tion nor bargaining. Before passing from this subject, one final facet of the matter is worthy of consideration. In International Ladies' Garment Workers, AFL-CIO, supra at 919, the Court points out that: "Notice, to be effective, must be given sufficiently in advance of actual implementation of a deci- sion to allow reasonable scope for bargaining." Here, the announcement to the employees of the layoffs and trans- fers occurred on February 10. As Berg was first notified of this matter at a dinner meeting 36 hours earlier, it might seem that Respondent's notice failed "to allow reasonable scope for bargaining." Yet, in view of Berg's belief that "if the Company's pro- duction was slowing down, it was their option to operate their plant as they saw necessary," it is clear that the Union would not have requested bargaining concerning the mat- ter even if it had been notified immediately after DeSi- mone, Graham, and Chalmers had reached the decision to lay off and transfer employees in the pattern shop. Indeed, even after the Union was told that the implementation of the decision had reduced its unit to one person, it still did not request bargaining about the matter. Rather, at the February 13 meeting and in the letters of Berg on March 8 and of Gerland on May 9, the Union continued only to request bargaining for a contract. U.S. Lingerie Corpora- tion, supra. In fact, the Union appears to have shared responsibility for failing to meet prior to February 8. While true that Graham was not available to meet for much of January because he was on vacation, it is equally true that, when DeSimone made an effort to obtain the Union's proposals to expedite negotiations, the Union was unable to furnish any proposals until January 20 and even then, the propos- als furnished were still not complete in all respects. More- over, the earliest initiative thereafter to meet appears to have been Oberwager's call to Berg to arrange for the Feb- ruary 8 meeting. This is singularly significant for although Respondenthad made the decisions much earlier concern- 6 As it is unnecessary to reach the question, for purposes of this decision I am assuming that an employer must bargain regarding a decision not to produce an annual new model and concerning a decision to experiment with a different method of production (as opposed to a decision to actually com- mence operating under a new method of production) It should be noted, however, that both of these areas raise issues concerning changes in the nature of a business and, as such, may not be the types of decisions about which an employer need bargain. Summit Tooling Company, 195 NLRB 479, 480 (1972) In view of my disposition of the Union's failure to request bar- gaining, however, it is not necessary to reach this question Ing cessation of prototype development at Broomfield and regarding the disposition of pattern shop personnel, it did not implement the latter decision until after Oberwager had first met with Berg. Not until the February 10 an- nouncement to the employees, so far as the record disclos- es, had any irrevocable step been taken to cease prototype production at Broomfield and, accordingly, while Respon- dent appears to have been firm in its decisions regarding this matter, it was still in a position to continue deterring implementation pending bargaining and in a position to modify its decisions had it been presented with alternative solutions to its plight. In these circumstances, although one might speculate as to Respondent's reaction had the Union sought to bargain about the matter and had the Union presented viable suggestions for alternative courses of ac- tion, the record will not support the inference that Respon- dent delayed notification to the Union in an effort to fore- close negotiations about the matter. Therefore, I find that Respondent did afford sufficient notice of its intent to lay off and transfer pattern shop employees and that by failing to seek further information regarding the basis for this decision and by failing to seek bargaining concerning the decisions leading to this pro- posed course of action, the Union foreclosed a finding of a violation of Section 8(a)(5) and (1) of the Act in this re- spect. B. The Effect of the February Layoffs and Transfer on the Unit It is undisputed that Wilke continued to work in the pattern shop as a patternmaker following the announce- ments of the layoffs and transfers to Berg on February 8 and to the pattern shop employees on February 10. Thus, Wilke clearly continued to be a member of the unit for which the Union was certified as the representative. Claycomb was transferred to the mold repair depart- ment. However, the only practical effect of that transfer, at least until July, was to change his immediate supervisor. Both his workweek and his rate of pay continued as before and, as illustrated by the events of July, both were different from the workweek and pay rates of mold repair depart- ment employees. Further, his work location was the same as it had been prior to February 10 and the work which he performed continued to be that which was found to be included in the unit by the Regional Director in his Deci- sion and Direction of Election. Thus, Claycomb continued to repair damaged male master toolings. While some of this work, when of a minor nature, was performed in the mold repair department,' Baum admitted that the work which Claycomb had been performing prior to July 3 was tool finishers' work and that this accounted for the fact that his wages had not been reduced prior to that time. According- ly, it is not particularly significant that minor repair work was\performed by mold repair department employees and, in any event, I credit Claycomb's testimony that, during the 1-year period prior to July 1, he had performed 30 to 40 repair jobs and that the repair work which he had per- ' I do not credit Baum's uncorroborated and unsubstantiated testimony that major damage to male master toolings was repaired in the maintenance department, as well LANGE COMPANY 565 formed between February 10 and July 3 was the same that he had been performing prior to February 10. Although it is true that Claycomb did spend 2 weeks in the spring working in the mold repair department, it is con- ceded that the work which he performed, modification of soleplate epoxy tooling, was tool finishers' work and, fur- thermore, it is not disputed that he was returned to the pattern shop because he had been assigned work which tool finishers had performed traditionally and for which he needed the tools and supplies available in the pattern shop. Additionally, it is also worthy of note that, during the spring, Claycomb worked for a period of time with Wilke as the two reworked the Super Banshee prototype to ready it for shipment to Italy. In these circumstances, notwithstanding the organiza- tional transfer of Claycomb from the pattern shop, the rec- ord does demonstrate that, following February 10, he con- tinued to perform pattern shopwork, at a location in the pattern shop, at a rate of pay and on a work schedule consistent with that of pattern shop employees and differ- mg from that of mold repair department employees, and he worked in conjunction with Wilke, who concededly contin- ued to work as a unit employee. Consequently, I find that, after February 10, Claycomb continued to remain a mem- ber of the bargaining unit. Although there was testimony that following February 10 Newman returned to the pattern shop on one or two occasions to perform work, there is no evidence that he remained there working for any significant period of time on either occasion. Accordingly, his post-February 10 work appears to have been no more than sporadic and, as such, has not been sufficient to warrant his continued inclusion in the unit following his transfer to the mold repair depart- ment. A similar result is warranted regarding Carlson who, while transferred permanently to the machine shop,8 con- tinued to spend 15 percent of his working time performing duties which he had performed while assigned to the pat- tern shop 9 -duties connected to ski boot production which, of course, differ significantly in purpose from duties in connection with ski production which occupy 85 percent of his working time. Other than the testimony of Baum on this point, which I have already stated that I do not credit, there is no evidence sufficient to support the conclusion that ski boot work had been performed regularly in the machine shop prior to Carlson's transfer from the pattern shop. Accordingly, I find that, while Respondent did not violate the Act by transferring Carlson from the pattern 8 I have considered the possible argument that Carlson's January transfer to the machine shop constituted prenotification-to-the-Union implementa- tion of Respondent's decision to transfer and lay off pattern shop employ- ees. However, such a contention is not advanced by the General Counsel who, along with Carlson, appeared to acquiesce in Respondent's assertion that the transfer of Carlson to the machine shop at that time had been temporary. There is certainly no evidence to refute this assertion. Though some of Carlson's post-February 10 work involved scraping aluminum molds, which were not manufactured at Broomfield, there was no indication from the examination of Carlson that the scraping, as opposed to the manufacturing, of aluminum molds had not always been done at Respondent's Broomfield facility, particularly as Carlson listed it as one of the duties that he had continued to perform following his transfer to the machine shop shop to the machine shop, I find that, following that trans- fer, he continued to perform pattern shopwork regularly for 15 percent of his working time and, as such, occupied the status of a dual function employee. Berea Publishing Company, 140 NLRB 516, 518-519 (1963). Taking this into account, the fact does remain that, although Carlson regu- larly spends 15 percent of his time performing pattern shopwork, he performs this work in the machine shop which is separate from the pattern shop, he apparently is subject to immediate supervision by someone other than the pattern shop supervisor, his workweek is not necessari- ly that of the pattern shop, and there is no evidence that he has any substantial contact with either Wilke or Claycomb. In these circumstances, I find that Carlson, following his transfer permanently to the machine shop, ceased to enjoy a community of interest with the employees in the pattern shop and, accordingly, should no longer have been consid- ered a part of the bargaining unit for which the Union was certified as the representative. Filler Products, Inc., 159 NLRB 1536, 1553 (1966). C. Post-February 10 Conduct Notwithstanding its protestations to the contrary, the fact remains that, by its conduct on and after March 4, Respondent clearly refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. As the Board recently pointed out in Queen Mary Res- taurants Corporation, and Q.M. Foods, Inc., 219 NLRB No. 134 (1975): "It is axiomatic that each party to the negotia- tions must participate in bargaining with a sincere desire to reach agreement and must make a sincere effort to reach a common ground." Prior to March 4, Respondent appears to have been making an effort to "reach a common ground"-at least, the evidence will not support a contrary conclusion. Thus, in view of the Union's delay in sending the proposals sought by Respondent and in the absence of any evidence that Respondent had been deferring the com- mencement of negotiations, it cannot be said that Respon- dent was at fault for delaying initiation of negotiations un- til 2 months after the certification had issued. Similarly, as found above, at the Vail meeting, Respondent advised Berg of the steps that it intended to take with regard to unit employees in view of the December decisions at Respondent's management meeting. When the Union did not protest Respondent's proposed course of action and, indeed, appeared to agree with Respondent's right to pur- sue that course of action, the layoffs and transfers were effected. Again, therefore, no violation of Section 8(a)(5) and (1) can be predicated upon these events. At the February 13 meeting, Respondent first proposed deferral of negotiations so that it could be ascertained whether Respondent's economic plight would improve and, when then faced with a proposal for a contract largely devoid of changes ini economic items, tentatively declined to agree because of the effect of increased wage rates for pattern shop employees on employees in other departments at Broomfield. The latter position is not necessarily unlaw- ful for it was pointed out in Los Angeles Herald-Examiner, Division of the Hearst Corporation, 197 NLRB 42, 44 (1972): 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand, it does not follow as the General Counsel in effect contends, that Respondent's negotia- tions with the one unit involved herein are to be viewed in a vacuum. Where any issue requires a deter- mination whether an employer, on the one hand, is bargaining hard, or on the other, has gone beyond and has not met his obligations under the Act, subjective factors are to be considered in the factual context of the particular case. N.L.R.B. v. Stevenson Brick and Block Co., 393 F.2d 234 (C.A. 4). And the Board has recognized that an employer may conduct negotia- tions with full realization of their likely impact upon unorganized segments of employees at its other termi- nals. Standard Trucking Co., 183 NLRB No. 17. See McCullock Corp., 132 NLRB 201. Consequently, of itself, it was not an unfair labor practice for Respondent to take into account the effect of any wage increase upon the reactions of other employees in its plant, notwithstanding the fact that these other employees were not included in the bargaining unit. Similarly, contrary to the assertion in counsel for the General Counsel's brief, it was not an indicia of bad-faith bargaining for Oberwager to defer a final answer to the Union's counterproposal until he had had an opportunity to confer with Respondent's principal officers. The Union's counterproposal was, in re- ality an offer for a final contract. Accordingly, Oberwager's reaction did not display inability to strike compromises on individual items, but rather was consistent with a principal's right, be that principal an employer or a labor organization's membership, to exercise final approval on the terms of a complete contract. It was during this February 13 meeting that Oberwager first raised the subject of the effect upon the bargaining unit of the layoffs and transfers that had been announced earlier that week. However, during this meeting, he did not refuse to bargain with the Union and it was not until his March 4 letter that the February 13 comments crystallized into an absolute refusal "to make any binding commit- ments" because "the bargaining unit no longer exists." This position was reiterated in his letter of March 17 in which the assertion that "the ruling of the Board was not and is not acceptable" was advanced with regard to the bargaining unit finding in the Decision and Direction of Election in Case 27-RC-4888. Faced with these clear and unequivocal expressions of refusal to negotiate further, Berg ceased attempting to deal with Respondent and, in- stead, pursued the matter by means of the charge in -the instant case. When Gerland then succeeded to the position of business manager, he made a renewed effort to attempt to bargain with Respondent, but passage of time had not altered Respondent's resolve to cease attempting to reach a contract with the Union., Thus, as shown by its answer to the complaint in this matter, Respondent continued to ad- here to its dual defense that the bargaining unit was inap- propriate and that it was composed of but a single employ- ee. Quite clearly, the evidence supports the conclusion that Respondent was refusing to bargain further with the Union on and after March 4. With regard to the defense of inappropriate unit, no proposition of law is more firmly settled than that which states that employers are not free to continue to advance and relitigate contentions already resolved in representa- tion proceedings. As the Board observed in Bryant Chuck- ing Grinder Company, 160 NLRB 1526, 1530, fn. 11 (1966), enfd. 389 F.2d 565 (C.A. 2, 1968): . .. the Respondent is estopped in this proceeding from relitigating the scope of the appropriate unit and from making contentions with respect to the unit which it could have raised with the Regional Director in the underlying representation case. So far as the record disclosed, Respondent did not request review of the Decision and Direction of Election. Rather, following certification, Respondent corresponded with the Union, sought to obtain the Union's contract proposals, met with Berg as the representative of the employees in the unit to advise him of the February layoffs and transfers, and met with the Union's negotiating committee to discuss proposals and counterproposals. Consequently, Respon- dent not only failed to challenge the unit determination at the appropriate time, but it accepted that determination by bargaining with the Union as the representative of the em- ployees in that unit. Only when it discovered that it would not be able to achieve its goals in bargaining did Respon- dent then attempt to turn back the clock to the events of late 1974 and challenge the appropriateness of the bargain- ing unit. This it may not now do. Turning to Respondent's second defense to its refusal to bargain, the purported reduction in the composition of the bargaining unit to one employee, I have already found that both Wilke and Claycomb continued to remain a part of the unit after February 10 and until July 3, when Clay- comb was transferred to the mold repair department. Ac- cordingly, Respondent is simply wrong in basing its refusal to bargain further with the Union on and after March 4 on the ground that the unit consisted of but one employee. Although Respondent may have believed that the organi- zational assignment of Claycomb to another department removed him from the unit, such a belief, even if main- tained in good faith, would not relieve Respondent of lia- bility for its refusal to bargain. H & W Construction Compa- ny, Inc., 161 NLRB 852, 854-855 (1966). Therefore, I find that, by failing and refusing to bargain with the Union on and after March 4, Respondent violated Section 8(a)(5) and (1) of the Act. During the time that both Claycomb and Wilke were working in the pattern shop, Garcia Corporation imple- mented a new pension plan, applicable to all employees including those in the pattern shop at Broomfield. While there is no evidence that this was done because of hostility toward the Union, Respondent did not notify the Union of its intent to apply the terms of that plan to employees which the Union represented. Accordingly, by this action, Respondent violated Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co. 369 U.S. 736, 747 (1962). As was true above, the fact that Respondent may have believed that there was but one employee in the unit and may not have been moti- vated by hostility toward the Union does not excuse its violation. Nello Pistoresi & Son, Inc. (S & D Trucking Co., Inc.), 203 NLRB 905 (1973), enforcement denied on other LANGE COMPANY - - 567 grounds, 500 F.2d 399 (C.A. 5, 1974). Two other points are significant in this regard. First, al- though Respondent did not say anything to the Union at the meeting of February 13 concerning the plan, Lenk's letter discloses that at the point in time when this meeting was held, it was not contemplated that the employees whom the Union represented would be embraced by the plan's coverage. Thus, there would have been no need to advise the Union of the plan at that time. Moreover, the institution of the plan was not, as is contended by the Gen- eral Counsel, inconsistent with Respondent's poverty plea at that meeting, for there is no dispute that it was the Broomfield facility that was experiencing financial difficul- ties, while the plan was one which Garcia Corporation in- tended to apply to all of its facilities There is, accordingly, no inconsistency as Garcia Corporation's financial circum- stances were never placed in issue in this matter. Second, by distributing both Lenk's letters to the employees, the one in which the pattern shop employees are listed among the exclusions from participation in the plan, and the March 13 letter, in which it is announced that they are included, Respondent demonstrated the very danger against which the Supreme Court has warned-that "the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964). Therefore, I find that Respondent violated Section 8(a)(5) and (1) of the Act by failing to notify and afford the Union the opportunity to bargain about implementation of a new pension plan insofar as that plan encompassed em- ployees represented by the Union. In July, less than a month, before the hearing in this matter was scheduled to open, Respondent hastily transfer- red Claycomb's work location from the pattern shop to the mold repair department where he then commenced per- forming mold repair duties. No reason was advanced for this transfer. Yet, manifestly it had no relation to the De- cember 1974 decision to discontinue development of the Super Banshee and Post prototypes at Broomfield, for while Claycomb did perform some work on the Super Ban- shee model after February 10, the preponderance of his work involved tooling repairs and soleplate modification- work necessitated by production after February 10 and not "carryover work," remaining for completion on February 10. In view of this fact and inasmuch as Claycomb contin- ued performing pattern shopwork for almost 5 months af- ter the Union had failed to seek bargaining regarding the personnel actions described to Berg at Vail, I find that there was no relation between the management decisions which had led to the layoffs and transfers announced on February 10 and Claycomb's July transfer to the mold re- pair department. This being so, the Union's failure to de- mand bargaining concerning the February 10 transfers and layoffs cannot be said to preclude its right to notification and an opportunity to bargain concerning Claycomb's July transfer. In the few cases where the issue has arisen, the Board has normally adopted the rationale that it does not effectu- ate the policies of the Act to require notification to the bargaining representative prior to effecting changes in the terms and conditions of employment of a single employee. Quality Motels of Colorado, Inc., 189 NLRB 332, 338-339 (1971); Ordont Orthodontic Laboratories, Inc., 156 NLRB 49, 64-65 (1965); but see, Star Publishing Company, 187 NLRB 210, 211 (1970). However, the facts of the instant case present employer-action having a somewhat more per- vasive effect. Here, the effect of Claycomb's transfer was to remove one-half of the employee-complement from the unit for which the Union had been certified as the repre- sentative. Further, not only was the unit reduced by half, but the effect of the transfer was to preclude the Union from further resort to the Board under the certification, as "the principle of collective bargaining presupposes- that there is more than one eligible person who desires to bar- gain." Luckenbach Steamship Company, Inc., 2 NLRB 192, 193 (1937). Thus, the transfer had an immediate impact not only upon Claycomb, but extending to both the Union and also to Wilke, who was left unrepresented as Respondent had already demonstrated that it did not intend to volun- tarily recognize the Union as the representative of a single employee. Finally, at no point did Respondent see fit to explain the reason for making the decision to transfer Claycomb. Cf. Quality Motels of Colorado, supra. In fact, the timing of Claycomb's transfer indicates, ab- sent another explanation, that it was effected to improve Respondent's position that the unit had been reduced to a single employee. This is supported by another fact-the subcontracting of the modification of the toe area of a male master tooling. Respondent conceded that this type of work had never been subcontracted in the past. It is undisputed that Respondent provided its own materials for the subcontractor to perform this work and that this had been the first time that Respondent had ever bestowed such beneficence on a supplier. Of course, this is only one instance of such subcontracting. But, only a small period of time elapsed between the transfer of Claycomb and the opening of the hearing in this matter. Consequently, there was not a great deal of time for opportunities to subcon- tract work of this nature and, as was true of Claycomb's transfer, no reason was advanced for subcontracting the modification of the toe area. In these circumstances, I find that Claycomb was transferred to perfect Respondent's de- fense that the bargaining unit was populated by only one employee and that the toe area modification work was then subcontracted because there was no tool finisher in the pattern shop who could perform this work. Therefore, I find that Respondent violated Section 8(a)(5) and (1) of the Act by transferring Claycomb from the pattern shop to the mold repair department, thereby removing him from the bargaining unit without prior, noti- fication to the Union that this transfer would be effected and affording the Union an opportunity to bargain about it. I further find that, in view of this violation in transfer- ring Claycomb, Respondent also violated Section 8(a)(5) and (1) of the Act by subcontracting tooling finishers work, both because it was an effect of the unilateral action of transferring Claycomb from the. unit and because it was done without affording prior notification to the Union of the fact that this work would be subcontracted. Finally, I find that by unilaterally changing Claycomb's workweek schedule and unilaterally reducing his labor grade and 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages after transferring him to the mold repair depart- ment, Respondent also violated Section 8(a)(5) and (1) of the Act. These changes in conditions of employment were the direct result of Claycomb's transfer without prior noti- fication to the Union. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the Respondent's operations described in section II above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce 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. 3. A unit appropriate for collective bargaining is: All pattern shop (and tooling) employees at Respondent's Broomfield, Colorado, plant; excluding office clerical em- ployees, and all guards, professional employees and super- visors as defined in the Act, and all other employees. 4. At all times material, Pattern Makers League of North America, Denver Association, AFL-CIO, has been the exclusive collective-bargaining representative of the employees in the above-described unit within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain on and after March 4, 1975, with Pattern Makers League of North America, Denver Association, AFL-CIO, as the representative of the employees in the above-described bargaining unit and by basing that refusal to bargain on the contentions that the unit was inappropriate and that the unit was composed of but one employee, Respondent has committed an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act. 6. By transferring Robert Lee Claycomb from the pat- tern shop, where he was included in the above-described unit, to the mold repair department, where he would no longer be included in that unit; by changing Carlson's work schedule and reducing his rate of pay; and, by sub- contracting pattern shopwork, all without prior notifica- tion to the Union and without affording the Union an op- portunity to bargain about these matters, Respondent has committed unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 7. By unilaterally and without consultation or negotia- tion with the Union granting employees in the above-de- scribed unit coverage under Respondent's pension plan in March 1975, Respondent has committed an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act. 8. Respondent did not violate the Act in any other man- ner. REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirma- tive action set forth below to effectuate the policies of the Act. Respondent will be ordered to transfer Robert Lee Clay- comb back to the pattern shop and to his former position as a tool finisher, and to make Claycomb whole for any loss of earnings he may have suffered by reason of his transfer to the mold repair department without affording the Union prior notification and an opportunity to bargain concerning that transfer. The backpay is to be computed on a quarterly basis, making deductions for interim earn- ings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on other grounds 322 F.2d 913 (C.A. 9, 1963). - Having found that Respondent failed and refused to bargain with the Union, I shall recommend that Respon- dent be required to bargain with the Union as the exclusive collective-bargaining representative of the employees in the above-described collective-bargaining unit.10 Moreover, as the refusal to bargain occurred at a point when 9 months of the Union's first year as certified bargaining representative remained, I shall recommend that upon resumption of bar- gaining and for 9 months thereafter the Union be regarded as if the initial year of certification had not yet expired." Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER12 Respondent, The Lange Company, A Division of Garcia Corporation, Broomfield, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to recognize and bargain collec- tively with Pattern Makers League of North America, Den- ver Association, AFL-CIO, as the collective- bargaining representative of all employees in the appropriate unit of: All pattern shop (and tooling) employees at Respondent's Broomfield, Colorado, plant; excluding 10 In making this recommendation I reject Respondent 's argument that the Union should not be accorded a bargaining order because it bargained with the objective of obtaining a Board Order rather than a contract and because the Union notified one of Respondent's customers that consumer picketing would be conducted at the customer's premises There is no evi- dence to support the former assertion and as to the contention regarding the Union's announcement of consumer picketing, see N L R.B v. Fruit and Vegetable Packers & Warehousemen, Local 760, et al, 377 U S 58 (1964) Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F 2d 57 (C A. 10, 1965). 121n 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 thereto shall be deemed waived for all purposes. LANGE COMPANY office clerical employees, and all guards, professional employees and supervisors as defined in the Act, and all other employees. (b) Transferring employees from the above-described unit to positions outside the bargaining unit or making or effecting changes in the wages, workweek schedule, pen- sion plan benefits, or other terms and conditions of em- ployment of employees in said unit without first giving no- tice to the Union and affording the Union, as the collective-bargaining representative of the employees in that unit, an opportunity to bargain collectively with re- spect to such change.13 (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of any right guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Reinstate Ronald Lee Claycomb to his former posi- tion of employment in the pattern shop, dismissing, if nec- essary, anyone who may have been hired or retained to perform the work which he had been performing prior to the time that he was transferred to the mold repair depart- ment on July 3, 1975; restore the terms and conditions of employment under which Claycomb was employed prior to July 3, 1975; and, make Claycomb whole for the loss of pay which he has suffered as a result of his grade and wage reduction when he was transferred to the mold repair de- partment, in the manner set forth above in the section enti- tled "The Remedy." (b) Upon request, recognize and bargain with Pattern Makers League of North America, Denver Association, AFL-CIO, as the collective-bargaining representative of the employees in a unit of all pattern shop (and tooling) employees at Respondent's Broomfield, Colorado, plant; excluding office clerical employees, and all guards, profes- sional employees and supervisors as defined in the Act, and all other employees, respecting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. Regard the Union upon resumption of bargaining and for 9 months thereafter as if the initial year following certification had not expired. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records and other records necessary to compute the backpay rights set forth in "The Remedy" section of this Decision. (d) Post at its Broomfield, Colorado, facility copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps 569 Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it alleges unfair labor practices not found herein. 13 This is not to be construed as a requirement that Respondent rescind increased benefits conferred by virtue of the pension plan Steel-Fab, Inc. 212 NLRB 363 (1974), In 1. 14 fn 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 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 The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining represen- tative and employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT refuse to recognize and bargain collec- tively with Pattern Makers League of North America, Denver Association, AFL-CIO, as the collective-bar- gaining representative of our employees in the appro- priate unit of: All pattern shop (and tooling) employees at Respondent's Bloomfield, Colorado, plant; exclud- ing office clerical employees, and all guards, profes- sional employees and supervisors as defined in the Act, and all other employees. WE WILL NOT transfer employees from the above- described bargaining unit to positions outside the bar- gaining unit without first giving notice to the Union and affording the Union an opportunity to bargain collectively with respect to such transfer of employees. WE WILL NOT make or effect changes in the wages, workweek schedule, pension plan benefits, or other terms and conditions of employment of employees in the above-described bargaining unit without first giv- ing notice to the Union and affording the Union an opportunity to bargain collectively with respect to such changes. WE WILL NOT in any like or related manner interfere with any of your rights set forth above which are guar- anteed by the National Labor Relations Act. WE WILL reinstate Ronald Lee Claycomb to his for- 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mer position of employment in the pattern shop, re- store his terms and conditions of employment to those which prevailed prior to July 3, 1975, and make him whole for any loss of pay he suffered as a result of his transfer to the mold repair department without prior notification to the Union. WE WILL, upon request, resume recognition of and bargain collectively with Pattern Makers League of North America, Denver Association, AFL-CIO, as the collective-bargaining representative of our em- ployees in the above-described bargaining unit, re- specting rates of pay, wages, hours of employment, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. THE LANGE COMPANY, A DIVISION OF GARCIA COR- PORATION