Intersystems Design And Technology Corp.

INTERSYSTEMS DESIGN CORP Intersystems Design and Technology Corp. and Local Union 569, United Brotherhood of Car- penters and Joiners of America. Case 15-CA- 8730 28 February 1986 DECISION AND ORDER BY CHAIRMAN AND MEMBERS DENNIS AND JOHANSEN On 30 March 1984 Administrative Law Judge Richard J. Linton issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. The judge properly found that the Respondent violated Section 8(a)(1) of the Act during April 19821 by interrogating employees about their union activities and threatening them with discharge and plant closure if they selected the Union as their bargaining representative . The judge also properly found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally laying off em- ployees on 24 June and 2 July without notifying the Union in advance of its decision to do so and without first giving it an opportunity to bargain over the effects of that decision. However, the judge also found, and we disagree for the reasons given below, that a backpay and bargaining remedy is not appropriate because the Union waived its right to demand effects bargaining by failing to exercise that right As indicated above, the judge concluded that the Union did not exercise its right to demand effects bargaining with respect to the layoffs, thereby waiving that right He found that the 24 June layoff, which occurred without prior notification to the Union, was not a fait accompli because the Union's business manager, Hurley Guilotte, upon being apprised on that day of the layoffs by the Union's steward, did not attempt to contact the Re- spondent's vice president, Walter Cowling, for the purpose of bargaining over "the method of select- ing [employees] for layoff " Although the judge appears to have found that the 2 July layoff constituted a fait accompli, he nevertheless found that Guilotte's action in "merely 1 All dates below refer to 1982 759 protesting" it, without requesting reinstatement and a new layoff on the basis of seniority,2 did not amount to a demand for effects bargaining, and that it could not be certain that, if such a demand had been made, it would have been futile However, in a letter to Guilotte, dated 27 August, Cowling declared that the Respondent had no obligation to bargain concerning a "reduction in force or to bargain with the union concerning the individuals to be terminated . . . ." In this connec- tion, Cowling testified that he was "young and naive" when he wrote that letter and admitted that an employer does have a duty to bargain over se- lecting employees for a layoff.3 The principles governing timely notice of unilat- eral change of conditions of employment and ef- fects bargaining are delineated in Ciba-Geigy Phar- maceuticals Division, 264 NLRB 1013 (1982), and Gulf States Mfg. v. NLRB, 704 F.2d 1390 (5th Cir 1983). In Ciba-Geigy, the Board adopted the language of the judge, as follows (264 NLRB 1017): The Board has long recognized that, where a union receives timely notice that the employer intends to change a condition of employment, it must promptly request that the employer bargain over the matter To be timely, the notice must be given sufficiently in advance of the actual implementation of the change to allow a reasonable opportunity to bargain. However, if the notice is too short a time before implementation or because the employ- er has no intention of changing its mind, then the notice is nothing more than informing the union of a fait accompli. [Citations omitted]. In Gulf States, the court dealt not only with the adequacy of the notice, but also with the related waiver issue (704 F.2d 1397): It is . . . well established that a union cannot be held to have waived bargaining over a change that is presented as a fait accom- ph. . . "An employer must at least inform the union of its proposed actions under cir- cumstances which afford a reasonable opportu- nity for counter arguments or proposals." . Notice of a fait accompli is simply not the sort of timely notice upon which the waiver de- fense is predicated. [Citations omitted.] 2 On 16 June, during negotiations for a new collective-bargaining agreement, the parties tentatively agreed to the inclusion of a provision applying the principle of seniority to layoffs 8 Similarly, Guilotte in his pretrial affidavit, dated 15 October, referred to a conversation with Cowling in early July when the latter asserted with reference to the layoffs that "it was the Company's decision to make " 278 NLRB No. 111 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from these principles that the Re- spondent, which did not give the Union any ad- vance notice whatever, presented it with a fait ac- compli as to both the June and July layoffs that did not allow the Union any opportunity to request or engage in effects bargaining prior to the Respond- ent's implementation of that change . Contrary to the judge's finding, the Union cannot be held to have waived bargaining over a change that was im- plemented without timely notice. The judge erred in finding that, despite the Respondent's failure to give any advance notice of the layoffs, the Union waived the right to engage in effects bargaining be- cause it did not request such bargaining after the layoffs were implemented. In any event, it is evi- dent from Cowling's 27 August letter, asserting the Respondent's right to make the layoffs without any prior consultation with the Union, that any union demand for effects bargaining whether made before or after the layoffs would have been futile. In sum, we find that the Union was presented with a fait accompli in violation of Section 8(a)(5) and (1) of the Act and that it did not waive effects bargaining 'as to the layoffs. Accordingly, we shall order a backpay remedy for any loss of earnings from the date of the layoffs until the earliest of the conditions set forth below are met. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest thereon computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Intersystems Design and Technology Corp., Pascagoula, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraphs 2(a) and (b) and reletter the subsequent paragraphs. "(a) On request, bargain in good faith with Local Union 569, United Brotherhood of Carpenters and Joiners of America, concerning the layoffs of 24 June and 2 July 1982 and the effects thereof and, if an understanding is reached, embody such under- standing in a signed agreement. "(b) Make whole those employees laid off on 24 June and 2 July 1982 for any loss of pay suffered as a result of its unlawful conduct in the manner set forth in that portion of the Board's decision enti- tled `Amended Remedy."' 2. Substitute the attached notice for that of the administrative law judge. AMENDED CONCLUSIONS OF LAW Delete paragraphs 8 and 9. AMENDED REMEDY Substitute the following paragraph for the second paragraph of the judge's Remedy: "Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off em- ployees on 24 June and 2 July without advance notice to or bargaining with the Union before the layoffs, we shall order the Respondent, on request, to bargain with the Union concerning those layoffs. We shall further order that the Respondent make whole the employees laid off on those dates by paying them their normal wages from the date of their layoffs until the earliest of the following con- ditions are met: (1) reinstatement of the laid-off em- ployees; (2) mutual agreement as to the manner, method, and effects of the layoffs; (3) good-faith bargaining resulting in a bona fide impasse ; (4) the failure of the Union to commence such negotiations within 5 days of the Respondent's notice of its desire to bargain with the Union; or (5) the subse- quent failure of the Union to bargain in good faith. Backpay shall be based on the earnings the laid-off employees normally would have received during the applicable period, less any net interim earnings, and shall be computed in the manner set forth in F APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten you with discharge or plant closure if you select a union to be your col- lective-bargaining representative. WE WILL NOT refuse to bargain with Local Union 569, United Brotherhood of Carpenters and Joiners of America, by unilaterally laying off em- INTERSYSTEMS DESIGN CORP. ployees from the unit described below without no- tifying the Union of the decision to lay off and without first giving such bargaining representative an opportunity to bargain over the effects of the decision to lay off. The bargaining unit is: All production and maintenance employees employed by IDT at its Pascagoula, Mississip- pi, operation, excluding all office clerical em- ployees, technical employees, professional em- ployees, truck drivers, guards, and supervisors as defined in the Act. WE WILL, on request, bargain in good faith with Local Union 569, United Brotherhood of Carpen- ters and Joiners of America, concerning the layoffs of 24 June and 2 July 1982 and the effects thereof and, if an understanding is reached, embody such understanding in a signed agreement. ' WE WILL make whole those employees laid' off on 24 June and 2 July 1982 for any loss of pay suf- fered as a result of our unlawful conduct, with in- terest. WE WILL mail a copy of this notice to all work- ers employed in the bargaining unit on 2 July 1982, including any on temporary layoff or leave of ab- sence, immediately prior to the layoff of that date, by mailing such copy to the employee at his or her last known address. INTERSYSTEMS DESIGN AND TECH- NOLOGY CORP. William Lurye, Esq. and Clement J. Kennington, Esq., for the General Counsel. Reginald J. Bell, Esq. (Fisher dr Phillips), of Atlanta, Georgia, for the Respondent. Hurley Guillotte, business manager, of Pascagoula, Missis- sippi, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case was heard before me in Pascagoula, Mississippi, on November 16, 1983, pursuant to the November 9, 1982 complaint issued by the General Counsel of the National Labor Relations Board. The complaint is based on a charge filed September 24, 1982, by Local Union 569, United Brotherhood of Carpenters and Joiners of Amer- ica (the Union, Local 569, or the Charging Party) against Intersystems Design and Technology Corp. (Respondent or IDT).1 The complaint alleges that IDT violated Section 8(a)(1) of the Act by maintaining and enforcing overly broad no-solicitation and no-distribution rules (par. 9), by 761 issuing a written warning on April 27 to Janice Salter for "conducting Union activities on job site during Company time" (par. 10), and by five enumerated instances of in- terrogation and threats by Foreman Richard Esty, a su- pervisor, during April-May 1982 (subpar. (a) thur (e) of par. 11); and Section 8(a)(5) of the Act by unilaterally, and without prior notice, laying off employees on June 24 and July 2 (pars. 12, 13, and 14). Respondent's answer, a two-page letter dated Novem- ber 18, did not respond to various paragraphs, denied some, and admitted others. The answer, on the letterhead stationery of IDT, was submitted by Walter H. Cowling. At the hearing Cowling testified that before becoming IDT's president in September 1983, he had been the firm's executive vice president since January 1982. Based on Respondent's answer, plus certain other doc- uments, the General Counsel filed directly with the Board a Motion for Summary Judgment dated January 5, 1983. After the matter was transferred to the Board, and following a response by Respondent,2 the Board issued its Decision and Order granting summary judgment as to complaint paragraphs 9, 10, 11(c), and 11(e), and re- manding complaint paragraphs 11(a), (b), (d), 12, 13, and 14 for a hearing before an administrative law judge. In- tersystem Design & Technology Corp., 267 NLRB 1310 (1983). At the beginning of the hearing Respondent, now rep- resented by counsel, amended its answer to admit com- plaint paragraphs 11(a), (b), and (d) relating to certain conduct by Foreman Richard Esty. Esty is an admitted statutory supervisor. Based on Respondent's amended answer, complaint paragraph 11(a) establishes that about April 1 Foreman Esty interrogated employees concerning union activities of Respondent's employees and that he threatened em- ployees with discharge and plant closure if IDT's em- ployees selected the Union as their bargaining represent- ative; complaint paragraph I1(b) establishes that in he first week of April, Esty threatened assembled employees with plant closure if they selected the Union as their bar- gaining representative; and complaint paragraph I I(d) es- tablishes that about April 14 Esty told an employee that all employees of Respondent would be terminated if they so selected the Union. Respondent's amended answer left only the allegations of unilateral layoffs to be litigated before me. For that purpose the General Counsel called Cowling, Hurley Guillotte, business manager of UBC Local 569, first-class joiner William B. Hudson, and' first-class insulater Janice Salter. For its case Respondent called Cowling. Salter again took the stand as a rebuttal witness for the General Counsel. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following ' All dates are for' 1982 unless otherwise indicated 2 No copy of Respondent's response was made an exhibit before me 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION A Delaware corporation with offices and facilities in several States of the United States, IDT maintains a facil- ity at Pascagoula, Mississippi, where it constructs oil rig housing units. The Pascagoula facility is the only oper- ation of IDT involved herein. The additional commerce facts are set forth in the summary judgment proceeding where the Board found Respondent to be an employer within the meaning of Section 2(2), (6), and (7) of the Act and UBC Local 569 to be a labor organization within the meaning of Section 2(5) of the Act. 267 NLRB 1310. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The election and certification It was also established in the earlier portion of this case that on May 14 the Union won a representation election3 among Respondent's employees, and that on May 24 Local 569 was certified as, and remains, the ex- clusive bargaining representative of the employees in the following unit: All production and maintenance employees em- ployed by Respondent at the Pascagoula , Mississip- pi operation, excluding all office clerical employees, technical employees, professional employees, truck drivers, guards, and supervisors as defined in the Act. 2. Respondent's Pascagoula operation President Cowling testified that IDT works as a con- tractor in the marine industry designing, procuring, fur- nishing, and installing joiner items aboard major vessels such as aircraft carriers and freighters . In February 1982 IDT was working at Pascagoula under contract with Chicago Bridge and Iron (CBI) at Quincy , Massachu- setts, for General Dynamics and at another location Cowling could not recall . As already noted, at Pasca- goula IDT was constructing housing units for oil drilling rigs. Cowling explained that construction of the housing units have to follow CBI's construction of certain steel items on the oil rig . Originally, three oil rig units were contemplated. Eventually, however, the third one was canceled. The first rig, known as the Dixilyn or D.F. 77, was scheduled for completion on May 8, 1982, and com- pletion of the second rig, known as Blocker 65, was scheduled for July 24, 1982 (R. Exh. 9, attachment C). By April or May it was clear that the work was behind schedule. On June 30, 1982, George Davis, IDT's presi- dent at the time, met in Pascagoula with representatives of CBI, and from this meeting IDT's completion sched- ule was extended to September 30 for Dixilyn and to 3 From the pretrial affidavit of Business Manager Guillotte it appears that the representation petition was filed about April 8, 1982 (R. Exh. 2). December 30, 1982, for the Blocker rig (R. Exh. 10). That extension led IDT off 20 employees on July 2 which in turn prompted the Union to file the charges herein. Respondent began work in Pascagoula around Febru- ary 1, 1982, and completed the job in April 1983. Just before the layoffs in question there were 47 em- ployees in the bargaining unit. Cowling so stated in his letter of October 1 to NLRB Region 15 (G.C. Exh. 10). The list contains a total of 87 names with various data for each : hire date, classification, last rate of pay, hours worked, termination date, and separation code. 3. Bargaining agreement signed The parties held four bargaining sessions . The first ses- sion occurred June 16, and the last took place on Octo- ber 13, 1982. The two interim meetings were on July 14 and September 15. On October 15, 1982, the parties exe- cuted a contract covering a term for 1 year from Octo- ber 15, 1982, until October 31, 1983 (G.C. Exh. 2). As previously noted, however, the job at Pascagoula ended when the last unit employee was laid off on April 22, 1982 (G.C. Exh. 10). B. The Layoffs 1. Introduction We are concerned with two layoffs here. The first, oc- curring June 24, 1982, involved six employees. The second, taking place July 2, affected another 14 employ- ees on a permanent layoff. Although the June 24 layoffs began as a temporary matter, the 6 involved there were reclassified as permanently laid off when Respondent added them to the 14 permanently laid off on July 2, making a total of 20 laid off on July 2, 1982. The complete names of these 20 employees do not appear in the record. Cowling did list them by first ini- tial and surname on a letter he sent to NLRB Region 15 on October 26 (G.C. Exh. lj, app. F), and a similar list can be approximated by examining the layoff dates by employee names on two additional exhibits (R. Exhs. 7, 10), but there is no complete listing. At various times in the correspondence and conversa- tions between Business Manager Guillotte and IDT President Cowling, Guillotte argued the theme that the employees were laid off because of their union activities. Cowling denied the allegation at every turn. Although the Union included that allegation in its charge , it failed to persuade the General Counsel, and that allegation is not one of the issues to be resolved. At the hearing Guillotte testified that Respondent did not give advance notice to the Union of the layoffs, and Cowling admitted that none was given . After acknowl- edging this position and the general rule that such notice is required, Respondent contends on brief that Respond- ent's failure to notify is excused by two exceptions to the general rule. First, the layoffs were "unforeseeable" and occurred in "emergency" situations and, secondly, after obtaining notice of the layoffs, the Union waived its INTERSYSTEMS DESIGN CORP. 763 right to bargain by failing to demand bargaining over the effects of the layoff.4 2. The June 24, 1982 layoff a. Facts On Thursday, June 24, Respondent temporarily laid off six employees working on the Blocker rig. William B. Hudson, the Union's job steward and a first- class joiner, testified that Superintendent John McCarthy told him the layoff would last only the 2 to 3 days needed to raise the rig to the top ' of the caissons. Janice Salter, who worked on the Blocker rig as a first-class insulator, was transferred to work on the Dixilyn. Salter testified that Foreman Esty told her she would not be laid off because her work and attendance were good. Hudson telephoned Business Manager Guillotte and in- formed him of the layoff. Guillotte went to the jobsite that very day and he and Hudson conferred with McCarthy. Guillotte objected to Respondent's laying off Hudson, the job steward,5 and asked why the employees with seniority were not transferred to the Dixilyn and the newer employees on that rig laid off. McCarthy re- plied that he had followed his instructions on the method to follow. Cowling testified that he did not learn of the temporary layoff until he arrived in Pascagoula on June 30 for the meeting with CBI. McCarthy did not testify. The demeanor of Guillotte and Hudson was favorable on this point, and I credit them. I also draw the infer- ence that had McCarthy testified, his testimony would have supported the version Guillotte gave of their con- versation. I do not credit Cowling's denial of advance knowledge. His demeanor was unfavorable on this point. Moreover, Cowling concedes that everyone knew that at some date the work would stop for the lifting of the rig to the caissons. He asserted, however, that the actual time would not be' known until about 10 minutes before the crews were organized for the move to the caissons began. That maybe true to the extent Cowling meant that the actual notice came from CBI for the temporary shutdown. 1 do not credit Cowling to the extent he in- tended to express the idea that the approximate date was a surprise to IDT. Aside from the demeanor factor, it is obvious that ev- erything was being done by a schedule. Cowling admits that the temporary shutdown was part of the normal construction process. In short, it was scheduled. Al- though work was behind the original schedule, it is plain that the actual schedule, whatever it was, had a con- struction sequence. As each segment was completed, the next would follow. I 'therefore find that Cowling and McCarthy, knowing the construction sequence at all times, knew the approximate date of the temporary shut- down, As the actual event grew closer, I find that the knowledge of Cowling and McCarthy became more ac- curate. 14 It seems dear that the General Counsel's allegations pertain to a fail- ure to bargain over the effects of the decision to lay off, and not to the decision itself 5 Respondent, through Cowling, had recognized Hudson as the Union's job steward at the first bargaining session and had agreed that ,Respondent would notify him about routine job matters. It is undisputed, as Cowling concedes, that at the first bargaining session on June 16, Respondent did not alert the Union that any layoffs were about to occur. I find that as of that date it was well aware that a temporary layoff would occur within the next 10 days or so. The contract proposal which the Union submitted at the initial session does not include an article,or clause ex- pressly mentioning layofs (G.C. Exh. 2). There is an arti- cle pertaining to seniority covering such matters as the probationary term, a seniority record to be maintained by Respondent, and transfers between facilities of IDT. Although Guillotte testified that the intent of this article is to apply seniority to layoffs, he admits that at the June 16 meeting he did not tell Cowling that the seniority arti- cle also applied to layoffs and recalls. The seniority article which appears in the executed contract as article 6, seniority (G.C. Exh. 9a), contains the same language as that which was included in IDT's contract proposal transmitted by letter of July 2 from Cowling to Guillotte for consideration prior to the meet- ing of July 14 (G.C. Exh. 5). Cowling testified that it was patterned after CBI's labor agreement. The parties had agreed to use the CBI agreement as a suitable frame- work'for their own. The seniority article, agreed to at the July 14 session (G.C. ,Exh. 6)'provides (G.C. Exh. 5b): 63 Ability, experience and qualifications required to perform available work shall govern in making lay- offs and recalls, but when these are relatively equal, the principle of seniority shall govern. The Compa- ny shall notify a Union steward or other Union rep- resentative, as, in advance of any lay-offs as is possible. Cowling testified that IDT's contract proposal (G.C. Exh. 5b) was completed some 5 to 10 days before he mailed it on July 2. Thus, it was complete at some point between June 22 and Sunday, June 27. -Regardless of the ,date of that completion, it is clear that Cowling had agreed on June 16 to use the CBI contract as a guideline. It is apparent that the seniority language of the CBI con- tract, although not made an exhibit here, is that which appears in IDT's proposal and which the parties agreed to on July 14. In short, 8 days before the, June 24 layoffs Respondent had agreed to use the CBI language on seniority at least as a guideline. That language gave priority to seniority where certain other, factors were equal., It is possible that as early as 2 days before the, June 24 layoff Respondent had completed its own contract proposal which con- tained the very seniority language that IDT mailed on July,,2 and which the Union accepted on July 14. b. Conclusion It is clear, and I find, that the June 24 layoff did not involve an "emergency." Respondent had plenty of ad- vance notice that the rig move was on the schedule, As the time approached closer for the move, Respondent's knowledge of the approximate time would have im- proved. There was no "emergency" which would excuse Respondent's failure to consult with the Union. Had Re- 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent consulted with the Union, it is possible that Local 569 could have persuaded IDT to abide by the se- niority principle the parties essentially agreed to on June 14. Although the General Counsel terms the June 24 layoff a fait accompli, that is not at all established. It was still June 24 when Guillotte met with McCarthy at the latter's office on the jobsite. Guillotte could have at- tempted to reach Cowling to request bargaining over the method of selecting for layoff. This Guillote did not do. Had Guillotte attempted to contact Cowling and had been unable to do so, the General Counsel's fait accom- pli contention might well be meritorious. Guillotte simply dropped the matter until the July layoff. I there- fore find that the Union waived its right to bargain over the effects of Respondent's decision to temporarily lay off six employees on June 24. Print-Quit, 262 NLRB 857, 861 (1982). Rig Original Date New Date 3. The July 2, 1982 layoff a. Preliminary facts On July 2, 1982, Respondent permanently laid off an additional 14 employees and converted the original 6 em- ployees temporarily laid off to permanent layoffs. Job Stewrd Hudson received a letter from Respondent, signed by McCarthy, on Saturday, July 3, notifying him that his layoff had been reclassified to permanent. Al- though copies of the letters sent to the six employees re- classified are not in evidence, Cowling testified that these letters, as well as those to the other employees, informed the employees 'that because of a lack of work, and in consideration of their absenteeism rate, they were being laid off. Cowling concedes that the Union was not given advance notice of the July layoff. Indeed, Respondent never notified the Union. Once again, Guillotte learned, from Hudson, the job steward, who telephonically in- formed Guillotte either July 3 or shortly after the July 4 holiday. Before we review the series of conversations and correspondence, between Guillotte and Cowling con- cerning the July layoff, it is necessary that we consider the events leading to the layoff. According to Cowling, the July layoff came about as follows. On Wednesday, June 30, as previously men- tioned, George Davis, IDT's president at the time, met with officials of CBI to discuss the work schedule on the two oil drilling rigs. At the meeting CBI extended IDT's scheduled completion dates on the rigs. Although Cowl- ing did not attend the meetings, he had arranged it the day before, in Passagoula and was aware of the meeting's purpose. At dinner the evening of June 30, Davis in- formed Cowling of the schedule extension. The changes, as previously noted, revised the schedule to be: Dixilyn 5-8-82 9-30-82 Blocker 65 7-24-82 12-30-82 Respondent knew several weeks before the meeting of the need of the revision, and was well aware that the purpose of the June 30 meeting with CBI was to obtain, as Cowling testified, an "accommodation" for IDT re- garding the completion dates and relief from CBI's chronic "panic-expedite" situation. Notwithstanding the foregoing, Cowling testified that the schedule revision left IDT in a "panic" situation of being "grossly over- manned." Respondent's panic, Cowling explained, was in having an excessive number of employees on the job with nothing for them to do, yet costing IDT big money for payroll costs. On Thursday, July 1, Cowling met with Superintend-, ent McCarthy and the two worked for about 12 hours all that day and into the night analyzing the job and deter- mining the number of employees IDT was now overstaffed. They concluded that the, work force had to be reduced by 20 to 25 employees, and Cowling decided to lay off 20. That same evening Cowling flew back to his office at Respondent's headquarters in Ft. Lauderdale, Florida, where the he determined the method of selecting the 20. Absenteeism had been a problem on the job, and Cowl- ing had raised the subject at the first bargaining session on June 16, where he submitted a set of proposed attend- ance rules with attendant disciplinary consequences (G.C. Exh. 4).e In light of Respondent's absenteeism problem, and notwithstanding the June 16 agreement with the Union to use the CBI contract as a guideline,? Cowling elected to use absenteeism as the method for se- lecting the 20. Specifically, Cowling compiled an attend- ance chart of unit employees and decided to lay off those employees whose rate of absenteeism exceeded 15 per- cent of work hours available.8 He did not consider the option of furloughs for these or other employees of 2 weeks, and he chose attendance over seniority because 6 Comments made at the June 16 meeting on the attendance-absentee- ism topic are given below. 9 The relevant language there, it will be recalled, calls for layoff to be on the basis of seniority where "ability, experience and qualifications to perform available work ... are relatively equal." Respondent makes no contention that "qualifications" is broad enough to cover absenteeism, matters of misconduct, or any other topic not specifically dealing with AT 8 The attendance chart, or one based on it, appears in the record as an attachment to a letter, dated October 11, 1982, from Cowling to the in- vestigating Board agent in which Cowling responds to certain matters raised by the charge and in the investigation (G.C Exh. lj, app. E) The chart, covering 47 employees as of June 27, 1982, shows the hours worked each week by each of the 47 employees, the available hours for each, the total hours actually worked, and in the final column hours worked as a percentage of available hours. Cowling was,not examined concerning the precise hour that he compiled all the data and prepared the entire chart after his return to Ft. Lauderdale. INTERSYSTEMS DESIGN CORP he felt attendance to be an objective factor and seniority to be subjective. At first blush Cowling's testimony on the latter point seems odd inasmuch as seniority is pegged to a specific date. The matter is clarified, however, by the realization that Cowling obviously had in mind the CBI contract language on seniority-that seniority is used only when certain other factors are relatively equal That language does require a subjective evaluation of the "ability, expe- rience and qualifications" of different employees, particu- larly, and perhaps solely, those holding the same classifi- cation, such as joiner first class . Only where that subjec- tive evaluation concludes that the skills are relatively equal does the principle of seniority govern . Even so, it must be observed that on June 16 the parties agreed, generally, to the seniority principle in CBI's contract, and not to a concept of layoffs based on attendance records. Cowling chose to bypass the June 16 under- standing. Cowling concedes that he did not contact the Union either before or after the layoff decision to inform the Union. Notice of the layoff possibility was not given on June 29 when Cowling arranged for the meeting with CBI Notice was not given the next day while Davis met with CBI. Nor was notice given on July 1 when Cowl- ing and McCarthy were analyzing the revised job sched- ule to determine how many employees were to be laid off. And Cowling did not even notify Guillotte at any time on Friday, July 2, the day of the layoff When asked why he did not attempt to contact the Union when he was in Pascagoula, Cowling testified that he "didn't think of it " According to Cowling , he did not think of it because he perceived the excess payroll to be a "panic" situation which he estimated to be costing IDT some $2500 a day. He reached this figure by multiplying the average hourly wage of $8 by 20 employees ($1280 a day), with a 34-percent fringe benefit factor (another $425, roughly), plus a 50-percent efficiency loss factor in the remaining 27 workers who would be distracted if 20 employees were left on the job with no work to do. Al- though IDT possibly could have contractually obtained reimbursement for any such loss under its contract with CBI, Cowling testified, credibly enough on this point, that it would be foolish for IDT to file a claim against its customers and that he would not have done so Although Cowling's estimate of $2500 seems a bit in- flated, even $1500 a day would seem to be more than de mmimis As the General Counsel observes , however, economic expediency does not excuse a failure to bargain with the recognized or certified union concerning a layoff of unit employees Gulf States Mfrs, 261 NLRB 852, 864 (1982), enfd. in pertinent part 704 F.2d 1390 (5th Cir. 1983). "Expediency" differs, or course, from a substantial emergency arising from an unforeseeable event Our case involves an expediency, not an emergen- cy I therefore find that Respondent had the time and opportunity to notify Guillotte no later than the first working hour of Thursday morning, July 1, of an im- pending layoff. Even though Cowling at that hour did not know the exact number to be laid off, he knew that there would be one and that it would affect a significant number of employees. Respondent's duty at that point 765 was to notify Guillotte and offer to meet and bargain on the method and timing of the layoff, NLRB v. Katz, 369 US 736 (1962) As we know, that notice was not given because the "panic" situation caused him not to think of it In resolv- ing credibility on this point I consider a letter Cowling wrote to Guillotte on August 27 Although the relevant portion of that letter is quoted later, I briefly note at his point that Cowling remarked there , in effect, that in the absence of contractual language requiring the Union's approval for a reduction in force IDT was free to pro- ceed (without notice) so long as the terminations were not intended to discriminate against union members (R. Exh. 4). At the hearing Cowling admitted that since the letter he has learned differently. As Cowling testified, there had been no layoffs at Respondent's Pascagoula operation prior to those involved here . In such circum- stances, layoffs are a mandatory subject for bargaining. Although the employer may properly decide that an eco- nomic layoff is required, once such a decision is made the employer must notify the bargaining representative and, on request, bargain concerning the manner and other effects of the layoff and recall Eltra Corp., 263 NLRB No. 106, slip op. at 5 (Aug 31, 1982) (not report- ed in Board volumes);9 Clements Wire Ca , 257 NLRB 1058, 1059 (1981). Turning back now to Cowling's testimony, I do not credit his version that he forgot to call the Union and that it was "panic" over the potential expense of up to $2500 a day which caused him to forget. Cowling's de- meanor on this subject was not favorable. I find, there- fore, that Cowling did think about notifying the Union but decided against doing so because (1) he thought it was unnecessary to do so in the absence of a contract, and (2) 4ie feared, I find, that consultation with the Union could delay the layoff for an extra day or two at a daily cost of perhaps as much as $2500 So layoff letters were given to those of the 20 who were present, and mailed to the others Three were re- called in July (R Exh 7, G C Exh I j, app. F) Senion- ty was not the basis. Cowling testified that the 3 were the only ones of the 20 who were ever recalled - Before we turn to the conversations and correspond- ence between the parties on this topic, a brief look at the discussion at the first bargaining session about absentee- ism is in order Already noted is the fact that Cowling complained there about it and gave the Union a three- page set of attendance rules (G C Exh 4). Guillotte in- formed Cowling that IDT had been encouraging em- ployees to take off because of delays caused by CBI or the weather, but that the Union would now tell them that IDT wanted them to remain on the payroll a full 40 hours a week Cowling concedes this but asserts he could not recall responding to the remarks about em- ployees being urged to take time off. From the credited testimony of Job Steward Hudson and insulator Janice Salter, it is clear that Respondent did encourage the workers to clock out and leave whenever work could not be performed for various reasons. On one occasion Eltra is not included in bound volume 263 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when Hudson and his helper asked to take off, McCar- thy agreed, saying it would help the payroll. Cowling testified that McCarthy had complained to him that he was unable to keep people on the job. Thus, Cowling used attendance because "I felt that I could help solve his problem on attendance, and also reduce the work force, at the same time." The relevance of the evidence regarding the parties' discussion on June 16, and the testimony about the histo- ry of encouragement, is a bit unclear. The General Counsel argues that Cowling chose absenteeism as the method of selection as a way of disciplining employees whose attendance was considered to be a problem. But the question of whether Cowling., sought to discipline employees is not presented for resolution here because there is no 8(a)(3) allegation. Neither are we concerned with whether it was "fair" or "just" for Cowling to use absenteeism as the selection factor when IDT had been encouraging employees to take off work to "help the payroll." That would be a matter for contractual arbitra- tion. The issue presented here is whether Respondent's admittedly unilateral action constitutes an unlawful refus- al to bargain under Section 8(a)(5) of the Act. b. Correspondence, meetings, and conversations After Job Steward Hudson notified Guillotte of the July 2 layoff, Guillotte immediately telephoned Superin- tendent McCarthy who said that he had nothing to do with the layoff, that it had come from his boss. Guillotte then called and spoke with Cowling about the layoff. Uncertain of the precise date of the calls to McCarthy and Cowling, Guillotte places them in "early" July, any- where from July 3 to 7. Hudson appears to date his call to Guilotte as the day ' he received his layoff letter or July 3. As that weekend was the long Independence Day holiday weekend, it is quite likely that Guillotte, rather than speaking with McCarthy and Cowling on Saturday, July 3, did not reach them until about Tuesday, July 6, or even Wednesday, July 7. The exact time is not in issue. In any event, when Guillotte reached Cowling he told him that he disagreed with the manner in which Cowling had laid off the workers. First, Guillotte said, Cowling had not contacted the Union about it even though at the first bargaining session Bill Hudson had been presented as the job steward. Second, Cowling had failed to follow seniority. On this point Guillotte said that senior employ- ees should stay on the job and that it was totally wrong to use absenteeism as the ground for laying off the em- ployees when IDT, before June 16, had been encourag- ing them to take off work at various times. When asked on cross-examination if he said anything else, Guillotte replied in the-negative. Counsel then inquired whether Guillotte asked Cowling to reinstate the people, and Guillotte ' answered in the affirmative. Reminded that he had just moments earlier said there was nothing more to the conversation, Guillotte testified that the reinstate- ment demand was indeed part of the conversation. In answer to yet another question, Guillotte testified that he additionally told Cowling that the layoff should be by se- niority. Although he made no attempt to relate their early July telephone conversation in his own testimony, Cowling denies that he was asked to reinstate the workers or to use seniority as the basis for the layoff. Instead, Cowling testified, Guillotte's remarks and written statements were to the effect that IDT had selected employees for the layoff because of their union membership. Guillotte sent a letter, dated July 8, 1982, to Cowling the text of which reads (G.C. Exh. 7): On July 2nd, you had a permanent reduction in work force at your Pascagoula, Mississippi facility. Local Union 569 was not advised or considered in one way concerning this permanent lay-off. We were not given an opportunity as the bargaining agent to negotiate this permanent lay-off. At our first negotiations on June 30 1982,10 we advised you the employees were segregated accord- ing to their Union affiliation. You were advised then that your management were telling employees the Company was going to black list all Union em- ployees. By firing these employees with out giving the bargaining agent an opportunity to negotiate the re- duction and the fact that the people who were fired is the same group of Union supporters we had al- ready discussed as being segregated from the Non- Union employees, we feel you have clearly violated the Act. Unless we can resolve this at the next negotiation we feel obligated to take this matter to the National Labor Relations Board. I am hopeful we can resolve this matter. I trust you will give this situation your earliest attention: In his pretrial affidavit of October 15, 1982, Guillotte described his early July conversation with Cowling as follows (R. Exh. 2 at 2-3): On either July 5 or 6 Bill Hudson came to my office and told me some of the employees had re- ceived a letter saying their layoff was permanent. I immediately called Cowling and asked about the layoff. He said CBI had changed the completion date on the rigs, so there was an excess of person- nel. Cowling said that was the reason for the layoff being made permanent. I asked him who made the decision regarding the layoff. Cowling said the he did. He said he'd meet with CBI in Pascagoula the week before and that's when he'd learned of the re- scheduled completion date, and had decided that a permanent layoff was necessary. I asked why he hadn't contacted me so we could set up. a meeting and discuss the layoff. Cowling said it was the Company's decision to make. I asked what criteria he used in making the decision on who would be laid off. Cowling said he used absen- teeism. He said he took everybody who had 15% or more absenteeism. I asked how it happened that a 10 As we know, the first bargaining session took place on June 16-not June 30 INTERSYSTEMS DESIGN CORP 767 certain number of people on a certain rig had [an] absentee problem Cowling said he had no knowl- edge of where the people worked, that he went strickly by the records I asked for copies of the ab- senteeism records Cowling indicated they'd be fur- nished, but I've never received them 11 The Company permanently laid off these employ- ees on or about July 2, 1982, without notice or bar- gaining with the Umon This is the basis for the 8(a)(5) allegation in the charge When cross-examined about the failure of the recita- tions in his July 8 letter or his pretrial affidavit to men- tion a demand for reinstatement and layoff by seniority, Guillotte testified that he nevertheless did raise such mat- ters in his early July telephone conversation with Cowl- ing Cowling responded by letter on July 23 to Guillotte's letter of July 8 Cowling's letter covered several matters and was not limited to Guillotte's letter One of the inter- vening matters was the second bargaining session which the parties held on July 14 Both witnesses agree that when the parties were preparing to leave at the conclu- sion of the meeting, Guillotte raised the subject of lay- offs They differ over what was said Cowling testified that as of the July 14 meeting he had not seen Guillotte's July 8 letter, and that it was not received at his office until July 14 It therefore was not until July 23 that Cowling responded in writing to Guillotte's earlier letter After the July 14 bargaining session, Cowling wrote Guillotte as follows (G C. Exh. 6 at 4-5) The referenced (d) letter was received by the writer upon my return from Pascagoula, following our meeting of July 14, 1982 1 was quite surprised to find that a subject which you believe warrants NLRB action and several other topics which we believe to have been resolved during the referenced (a) meeting were not addressed, other than your seemingly casual query concerning the basis for our recent reduction in force I hope that our level of communication will improve in the future Our response to your July 8 letter follows- A. Blacklisting-As we stated in our June [July] 14 meeting, IDT had on knowledge of any manage- ment employee making any representations concern- mg blacklisting The Union alleged that such repre- sentations had been made by an IDT supervisor IDT stated that if any such comments had been made, the comments were not sanctioned by IDT, and the supervisor identified by the Union was di- 11 When Cowling mailed the executed contract to Guillotte , by letter dated October 22, 1982, he wrote in the penultimate paragraph that he was enclosing a copy of an "Attendance Analysis" covering the job from its beginning date through June 27, 1982 "pursuant to the" Union's re- quest in its letter September 22, 1982 (G C Exh 9a) The Union 's letter Setember 22, 1982, which is in evidence contains no such request (R Exh 5) However, in Cowling's October 11, 1982 letter to the investigat- ing Board agent, he does refer to a letter he assertedly received from Guillotte on October 6, 1982, in which Guillotte requested, among other items, attendance data (G C Exh ij, app E at 2) rected to refrain from making any comments con- cerning the Union As we had no further communi- cations from the Union concerning this subject, we presumed that the matter was resolved B Segregation of Union Employees-As of today's date, IDT has no knowledge of which of its em- ployees are Union members, with the exception of those employees who attended the June 14 [16] meeting As we stated previously, the assignment of work on the second rig was based on utilization of the same employees who had performed the same work on the first rig No intent to discriminate against Union employees was involved in our work assign- ments C. Reduction In Force-On July 1, 1982, IDT was advised by our customer, CBI, of the extension in completion schedules for the two rigs upon which we are working This extension resulted in an overmanning condition in our work force, man- dating an immediate and permanent reduction in force As IDT had been experiencing a problem with chronic absenteeism, a situation which was dis- cussed with the Union, we decided to base our re- duction in force on attendance records The em- ployees having the highest rate of absenteeism was selected first The employee having the second highest rate second, and so on until reaching the work force level which could be stabilized under the extended contract schedules. We fail to see how our actions in this reduction of force could be construed as being directed against Union supporters when the Union member- ship is still unknown to us, and when the criteria employed was objective attendance records, rather than some subjective criteria. Should you require any additional information con- cerning the foregoing responses, please contact the undersigned Guillotte testified that he did not merge the layoff topic with the contract subjects at the July 14 meeting because he wanted to avoid anything that would inter- fere with obtaining a collective-bargaining agreement. According to Guillotte, at the close of the meeting he asked Cowling when IDT would be recalling the em- ployees Although further testifying that there was in fact a brief discussion on the topic, he could not recall what it was nor could he recall Cowling's response to his question concerning recall As he remarked in his July 23 letter, Cowling testified that at the close of the July 14 meeting Guillotte, in an "offhand" manner, inquired as to the basis of the July 2 layoff, and he replied that it was based on absenteeism, to which Guillotte said, "okay." Cowling testified that Guillotte did not object to the selection method, nor did he demand that the workers be reinstated and that se- niority be followed in the layoff On this subject Guillotte testified with an unconvinc- ing demeanor in contrast to Cowling's persuasive de- 768 DECISIONS OF ,NATIONALi LABOR RELATIONS BOARD meanor. Moreover, Guillotte's recall, of the subject was quite hazy, whereas Cowling's recollection was very spe- cific. Quillotte even termed-the layoff "temporary" in his testimony on this point, and further testified that he was under the impression that the workers would be called back when work,was available. When he was reminded that he had described the" layoff as "permanent?- in his letter of July 8, Guillotte explained that he understands "temporary" layoff as being a day or two in, which the employee waits at home then returns to-work, whereas in, a "permanent" layoff the worker files for unemploy- ment and waits .for work to pick up so .he can be re- called. Although Guillotte's definitions of the terms are not inconsistent, he confuses matters by calling ,the layoff "permanent" in his July 8 letter, but "temporary" at the hearing. Even so, it seems clear that what Guillotte meant at the hearing was that he "initially thought the layoff, while if obviously would be longer than a couple of days or so, would. nevertheless be,.of a relatively short duration. From -early July until September, Guillotte tes- tified, he was under the 'impression that the project had a lot of work potential and that work would pick up 2 before long and the workers would` be recalled' .12 The problem with Guillotte's impression, and. his al- leged query at the end of the July 14 session, it that it does not match the position he 'expreses in his ,July 8 letter. In strange 'contrast' to his lion's roar warning of July 8 that the layoff matter had better be resolved at the next (July 14) bargaining session or NLRB charges would be filed, Guillotte, in his testimony at 'the hearing, makes no contention that he sought to resolve anything on the subject at the July 14 meeting . Even if Guillotte's version were accepted, he merely asked when IDT was going to recall the workers. In crediting Cowling's version of the July 14' conversa- tion, I have not overlooked that ai one point he testified that prior to July 14 Guillotte had not objected to the selection method, only to modify that position,, on re- reading Guillotte's July 8, letter,, to say that,Guillotte did object by suggesting that IDT had violated the Act. Nor is Guillotte's version inherently'illogical.The only illogi- cal aspect of an inquiry,about recall on July is 'that one wonders why an inquiry would have been so limited in view of the aggressive position expressed in the letter of July 8. Overall, Cowling. testified persuasively regarding the July 14 conversation and I credit him. • As we have ,seen, Cowling returned,torhis Fort Lau- derdale office, found Guillotte's letter- of July ,8, and wrote his reply" dated July 23..The ,next communication appears to be-,,Guillotte's letter, dated„August 16, to Cowling in which he discusses, several topics still open in 1z`Guillotte actually' said from'July until the August bargaining ses- sion However, there was no bargaining session in, August Guillotte ob- viously meant the session of September 15, 1982 At that meeting,Guil- lotte understood Cowling to say that the workers'were not eligible for recall as they had been laid off because of poor attendance Cowling tes- tified that at'the end of the bargaining session of September 15;• 1982: GuillottC;asked if the laid-off workers were gong to be recalled, and that Cowling replied IDT was not contemplating hiring anyone and in fact was looking at further reductions Cowling testified that the employees were laid' off for lack of work, were not terminated for cause, and are eligible for rehire the 'contract negotiations, covers the layoff,, and closes with open dates for further communications.-The layoff paragraphs.read as follows (G.C.-Exh.'8 at 2-3): i; In discussing the situation of 'reducing -the work -1 . 1 force of July 1 st. . ' .. We feel like first of all in the past people were encouraged to take time off and at no time there was no talk of using - absenteeism ' as a' disciplinary action or a lay-off at a later date. - - No one had ever been'[reprimanded] verbally or written. The nature of some of the work and differ- ent rigs and different stages, of work dictated some of the lost time. , Second, we feel like the Company had `agreed to' sit down and discuss any disciplinary action, policy changes, "lay-offs, or anything in that nature with the Union Steward or the Business Agent; this,has not been done. We feel like that Union has in good faith tried to bargain for the people at IDT [an equitable] and workable contract for the people and to;the'Compa- ny. We appreciate your', concern and coo' erati6n that has been shown. . Cowling's three-page reply letter is dated August` 27 (R. Exh. 4). Toward the 'end of the letter, -Cowliiig''in cludes two paragraphs bearing on the layoff. The second paragraph is of more than passing significance„ and Cowling, with a touch of chagrin, testified that he was "young and naive" when he penned it. The paragraph reads : ' , • 'Concerning our July reduction in • force: ' (a) layoff was mandated by IDT's' customer action in extend- ing our period of performance; (b) the basis for se- lection of employees;to''be laid-off-was attendance; (c) this reduction' •in force was 'not 'a disciplinary action in any way,- shape or form.-, ' ' - IDT has no • knowledge; of. an -agreements with the union to obtain approval'for" a mandatory reduction in force or to bargain ,with; the union concerning the individuals to be terminated; provided, or course, that the' terminations were`no't inte'nded' io discrimi- nate against, union, members. As no discrimination was present in our selection of'eniployees to be ter- minated, we believe that our`action was'proper and justified. Cowling testified that he smce =has learned tliattan em- ployer does have a duty-'to bargain` (with' a certified or recognized union), `even tin' the 'absence 'of a}`contract, over selecting employees for layoff. At the conclusion of the meeting of September-15; the third of four- bargaining sessions field -bye ,tlieuparties, Guillotte asked if the- laid-off employees were going, to be recalled. Cowling's reply, that, IDT was.not,,contem- plating )hiring anyone, ' and ini fact was, looking' toward further reductions'in force; ended the 'discii§sidn'on the matter . ,According to Guillotte, at the, third session,(September 15) he asked when the workers were going toibe, recalled INTERSYSTEMS DESIGN CORP. 769 because IDT had hired three or four new employees and Guillotte wondered why the employees on layoff had not been recalled. To this inquiry, Guillotte testified, Cowling replied that the employees laid off were not eli- gible for recall because they had been laid off for absen- teeism. From this Guillotte concluded that the employees had been fired, not laid off, and that is why he sent his next letter. Cowling testified that the employees were laid off for lack of work, were not terminated for cause, and are eligible for rehire. Following the September 15 bargaining session Guil- lotte filed the orginal charge herein. Although the charge was filed on September 24, Guillotte signed it on September 21 and apparently mailed it to the NLRB Re- gional Office in New Orleans about September 21. The charge alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act by,' among other conduct, laying off and refusing to recall employees. An amended charge, signed and, as noted, given to the investigating Board agent in Pascagoula on October 15, was filed Oc- tober 21. By date of September 22, Guillotte mailed a two-page letter. Cowling which includes the following paragraph among those discussing contract items (R. Exh. 5): The other thing that I was surprised about was I thought the individual lay-off was because there were too many people on pay-roll and Chicago Bridge and Iron requested there be a reduction. There was no mention at no time that the people were fired and not eligible for rehire. In all our dis- cussions we talked about a lay-off and we have not discussed them being fired and not eligible for rehire. Cowling replied with a three-page letter date October 4. He opens by stating, among other points, that Guil- lotte has misconstrued comments made (by Cowling) during the September 15 meeting . At page 2 of his letter Cowling addresses the layoff as follows (R. Exh. 6): Lay-Off-IDT's letters of July 23 and August 27, 1982 address the reduction in force which occurred in early July. Nothing was said in the referenced (a) meeting to alter our prior explanations . When I told you that rehire of laid off employees was not con- templated, I was referring to the fact that no em- ployees were going to be hired, as present and pro- jected workloads will probably result in additional lay offs rather than increase in the work force. Your suggestion that the employees were "fired" is totally inconsistent with: letter notice of lay off to the employees; approval or unemployment compen- sation by IDT; and the explanations furnished in the above mentioned letters. As noted at the outset, the parties did reach agreement at the fourth and last session held October 13, and on October 18, 1982, they executed a contract effective until October 31, 1983 (G.C. Exh. 9b). A collateral matter, relating to new employees hired, should be mentioned at his point. The payroll and layoff list (G.C. Exh. 10 and R. Exh. 7, respectively) reflect, Cowling concedes, that some new employees were hired after July 2, 1982. Cowling testified, however, that the new hires either were in different classifications from those laid off (such as welders and pipefitters being hired) or had different (particularly lesser) skill levels such as a mechanic II as opposed to a mechanic I who had been laid off. Cowling conceded that in one instance the letter was not true because the payroll list reflected that on September 20, 1982, R, Wilson was hired as a joiner II, yet on that date joiner II J. Barrow had not been recalled from the June 24 to July 2 layoff. It does not appear that this one discrepancy has any material bearing on the case. c. Conclusion The principal factual resolution to be made at this point concerns the telephone conversation between Guil- lotte and Cowling in early July 1982. I credit Guillotte's version of the conversation up to the point where he adds that he did ask Cowling to reinstate the workers and to follow seniority in the layoff. The credited por- tion is consistent with his pretrial affidavit. Taking the two elements together, I find that Guillotte, probably about Tuesday, July 6, telephoned Cowling and inquired about the layoff as described in'the first paragraph of the affidavit quoted earlier. After Cowling responded about the basis, Guillotte, I find, asked why Cowling had not contacted the Union, including Job Steward Bill Hudson so that they could set up a meeting and discuss the matter. Because, Cowling replied, it was the Company's decision to make. Guillotte at that point, I find, asked what basis Cowl- ing had used in selecting the ones laid off. Cowling said he used absenteeism, and had selected those with an ab- senteeism rate of 15 percent or more. Guillotte, I find, said that Cowling should have followed seniority, that senior employees should stay on the job, and that it was wrong to use absenteeism as the basis when IDT had earlier been encouraging employees to take off work at different times. Guillotte then asked how it happened that just a certain number on one rig had an absenteeism problem. Cowling responded that he did not know where the people worked and had gone strictly by the record. The conversation ended, I find, as shown in the pretrial affidavit, with Guillotte requesting a copy of the absenteeism records and Cowling indicating that such would be furnished. I do not credit Guillotte's testimony that he additional- ly requested reinstatement and that the new layoff be by seniority. His demeanor was not favorable in that re- spect. I have found that Guillotte said the seniority should have been followed and that senior employees should stay on job. That arguably means he was asking fore reinstatement with a new layoff to be by seniority. But Guillotte did not make the statement expressly. To the extent that Cowling denies that Guillotte expressly asked for reinstatement and expressly requested that a new layoff be by seniority, I credit that denial. Cowling did not address the balance of the early July conversa- tion. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have not overlooked the fact that Guillotte's letter of July 8 to Cowling does not expressly mention seniority. Neither does it mention absenteeism, and there seems no doubt that absenteeism came up in the conversation. It is clear that Guillotte made no attempt to recite the earlier conversation in his July 8 letter. That he chose to stress factors other than seniority in the letter does not compel a finding that seniority was not mentioned in the tele- phone conversation 2 days earlier. In any event, Guil- lotte clearly indicates in his July 8 letter that the matter must be resolved at the next negotiating session. C. Analysis and Conclusions Earlier I found that Respondent's duty to notify the Union and, on request, bargain with it was not excused by any emergency exception to the general bargaining obligation. This is so because there was no "emergency" here in the contemplation of the law. That exception aside, Respondent argues that another exception, that of waiver, applies here. Thus, Respondent contends that the Union never requested that a different system, particu- lary seniority, be used nor that anyone be reinstated. I do not accept Respondent's argument that the Union never requested that a different method be used. Argu- ably Guillotte did so request in the early July telephone conversation. I need not resolve this, however, because the course of events reveals that the Union not only warned that the matter would have to be resolved at the July 14 bargaining session, but it also had the full oppor- tunity to bargain there with IDT about the effects of the July 2, 1982 layoff. For' whatever reason, Guillotte de- clined to pursue the matter. The record suggests that he chose that course for two reasons. First, he did not want to argue over a matter which might somehow interfere with obtaining a contract. Second, until the meeting of September 15, 1982, he kept anticipating that the work- ers would be recalled at most any time. The findings I have made lead to only one conclusion. The Union waived its right to bargain about the effects when it failed to pursue the subject on July 14. The sub- sequent correspondence, even though discussing the layoff, does not amount to a request to bargain. Nor does the General Counsel contend that Respondent's duty to bargain was revived at any time after the July 14 meet- ing if I find as I have. Indeed, the General Counsel's ar- gument essentially closes with the July layoff, contend- ing that a violation is established because, as Guillotte did not learn of the layoff until after the fact, the Union was presented with a fait accompli. Cases cited by the General Counsel regarding viola- tions when the employer did not notify the union are generally those in which the employer laid off employees while contesting the union's certification. In these cases, such as Schnadig Corp., 265 NLRB 147 (1982), and Cle- ments Wire Co., 257 NLRB 1058 (1981), the underlying rationale seems to be that any bargaining request would have been futile. This is also true even where, in the cases cited, general bargaining was taking place, _ as in Cloverleaf Cold Storage, 160 NLRB 1484, 1487 (1966). Certain cases cited by Respondent pertaining to the waiver concept, such as Print-Quic, 262 NLRB 857, 861 (1982); Clarkwood Corp., 233 NLRB 1172 (1977); Globe- Union, Inc., 222 NLRB 1081 (1976); and Hartmann Lug- gage Co., 173 NLRB 1254 (1968), all involve situations where the union had advance notice from the employer, or actual notice from other sources. Such cases are of little help in deciding whether a fait accompli is esta- bished if the union, as here, has no notice at all until after the unilateral change has been implemented. As mentioned above, the underlying rationale of all the fait accompli cases seems to be that the circum- stances were such as to give rise to the conclusion that a request to bargain would have been futile. See, for exam- ple, Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017-1018 (1982). Even in Holiday Inn of Benton, 237 NLRB 1042 (1978), the case most nearly favorable to the General Counsel, the Board cites the futility con- cept. In Holiday Inn of Benton the union received notice of a conversion of a restaurant with waitresses to a self-serv- ice cafeteria without waitresses after conversion and layoff. At page 1044 the Board wrote: Inasuch as the Union, when it became aware of the conversion, was faced with a fait accompli, we do not consider it relevant that the Union thereafter failed to request bargaining over the implemented conversion and its effects. Davis' unilateral actions clearly conveyed the message that the decision was made on an irrevocable basis that such a request would have been futile. [Citation omitted.] A separate consideration exists in cases involving uni- lateral changes during the effective term of a contract. See, for example, Exxon Co., U.S.A., 253 NLRB 213 fn. 2 (1980). That is not our situation here. In our case the total circumstances do not support, much less compel, a, finding that a request to bargain would have been futile. Even if a decision were to be made only that facts existing immediately following the July 2. layoff, it would not be certain that a request to bargain over revising the method used in the layoff would be futile. This is so because earlier Cowling, at the demand of Guillotte, rescinded a set of work rules Respondent had unilaterally devised and posted and, thereafter, submitted them to the Union at the bargaining table on June 6. Cowling's letter on the subject to Guil- lotte of June 7 reads (R. Exh. la): Dear Mr. Guillotte: This will confirm our conversation of today's date during which you were advised of IDT's with- drawal of the Rules of Conduct which IDT pro- posed for use at our Pascagoula facility. We were in error in implementing such rules without first fur- nishing a copy to the Union. We apologize for any inconvenience this error may have occasioned. We enclosed a copy of IDT NOTICE titled Rules of Conduct-Disciplinary Action for your review. We are prepared to discuss and bargain upon these rules should you so request. It is our desire to implement these Rules of Conduct in the most expeditious manner practicable and certainly within the next 30 days. Accordingly, we will INTERSYSTEMS DESIGN CORP. assume that you concur with the proposed rules unless we should receive a request to bargain con- cerning their content by July 5, 1982. Trusting the foregoing is in consonance with our discussion, I am Very truly yours, W. H. Cowling As a factual event, a fait accompli-an "accomplished fact"-has occurred when a unilateral change of a signif- icant term or condition of employment is implemented at a time when the bargaining representative has not been given advance notice by the employer or received actual knowledge from the employees or other sources. Except in the extraordinary situation where the unilateral imple- mentation was done without advance notice because of a dire emergency, 1 3 certin legal consequences attach. The first legal consequence is a fording that a violation of Section 8(a)(5) of the Act has occurred. As the viola- tion trangresses those public rights Congress sought to protect by enacting the statute, a remedy must be pro- vided in the interest of protecting those public rights. At a minimum, the appropriate remedy will require an order directing the employer to cease and desist from making unilateral changes, and will direct the employer to post an appropriate notice so advising its employees. That would be the usual minimum remedy. Whether an appropriate remedy would call for more corrective action by the employer, particularly bargain- ing, recission, backpay, and the like will depend initially on a fording that the bargaining representative made a timely demand for such action after learning of the fait accompli. In the absence of such a demand, either by total omission or by merely protesting the unilateral change, filing an unfair labor practice charge, or other- wise not affirmatively pursuing its right to bargain on the subject, and where there is no showing that demand would be futile, a finding of a waiver is proper and the remedial order will be' of the limited variety already de- scribed. The circumstances may show that it would be futile for the bargaining representative to demand negotiations. A typical example of this is where the employer is con- testing certification and refuses to recognize the union. At other times the employer will make ` clear that there will be no bargaining. As the cases reflect, the futility concept may apply in situations where the union had ad- vance notice as well as in those where knowledge is not acquired until after the event. Where the bargaining -representative does demand bar- gaining, recession, backpay, and whatever else is neces- sary to restore the status quo ante, appropriate remedial relief normally must seek to return legal parity, by , re- storing the status quo ante, so that the bargaining repre- sentative will not be left to bargain from an inferior posi- tion unlawfully imposed' by the employer through unilat- eral action. A failure to restore the status quo ante in the normal situation would merely reward the wrongdoer for choosing an illegal course when he might well have 13 Such unilateral action "will rarely be justified by any reason of sub- stance" NLRB v. Katz, 369 U.S. 736 (1962). 771 opted for a different and mutually agreeable plan had he obeyed the law and negotiated with the bargaining rep- resentative at the beginning. Of course, where pay raises or other benefits are unilaterally granted, a respondent employer is not ordered to rescind them unless the bar- gaining representative so demands. In the instant case it is clear that Guillotte, after the time he received actual notice from Job Steward Hudson of the July 2 layoff, never put Cowling to the test of whether Respondent would bargain over the effects of the layoff, including' recalling the employees and laying off by a different formula. To the limited extent Guillotte raised questions about the July 2 layoff, Cowling re- sponded. No futility has been shown. Print-Quic, 262 NLRB 857, 861 (1982). It therefore seems appropriate to find that Respondent did act unlawfully in unilaterally laying off the employ- ees, NLRB v. Katz, 369 U.S. 736 (1962). The remedy, however, must be limited to an order to post a notice. As the Union waived its opportunity to bargain, over both the June 24 and July 2 layoffs, an order to reinstate and pay backpay, or even to bargain now, would be in- appropriate. One beneficial effect of a finding, of a viola- tion, with the attendant order, is the usual one of deter- ring future transgressions. A notice is appropriate in the event Respondent has started work on a new project at its Pascagoula facility. Because it is possible that the em- ployees employed on the job as of July 2, 1982, are no longer there, and would not see a posted notice, I shall order Respondent to mail a copy to each individual em- ployed in the unit immediately prior to the July 2, 1982 layoff to each employe's last known address. Before concluding the discussion of a remedy, I should note one contention Respondent makes. IDT contends that in the event a make-whole remedy is found appro- priate it should not extend to employees who were still within their first 90 days: °This is so, Respondent argues, because Respondent's preexisting practice of a 90-day, probation carried' over -into the October 1982 contract which permits IDT to discharge employees during the first 90 days "at the sole discretion of the Company without recourse." (G.C. Exh. 9b at 6). Respondent con-' eludes that it retained this right at all times and therefore did not have to give notice to or bargain with the Union (Br. 23). Aside from the fact that the law protects proba- tionary employees as well as other employees, Respond- ent's argument flies in the face of Cowling's specific tes- timony, at the hearing, and statements in his August 27 letter to Guillotte (R. Exh. 4) that the layoff was based strictly on economics and was not disciplinary "in any way, shape or form." Indeed, Cowling expressly dis- claimed any reliance on the probation factor during his testimony before me. Respondent's contention regarding probation at this stage is, therefore, a bit puzzling. In any event, reinstatement is not part of the remedial order. CONCLUSIONS OF LAW 1. IDT is an employer within the meaning of Section 2(2,), (6), and (7) of the Act. 2. UBC Local 569 is a labor orgaization within the meaning of Section 2(5) of the Act. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The following employees constitute a-unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by IDT at its Pascagoula, Mississippi, oper- ation, excluding all office clerical employees, tech- nical employees, professional employees, truck driv- ers, guards, and supervisors as defined in the Act. 4. At all times material herein UBC Local 569 has been the exclusive collective-bargaining representative of all the employees in the unit described above for the pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By Respondent's April 1982 conduct of interrogat- ing employees about their union activities and threaten- ing them with discharge and plant closure if they select- ed UBC 569 as their bargaining representative, IDT has violated Section 8(a)(1) of the Act. 6. By unilaterally laying off employees on June 24, 1982, without notifying the Union of its decision to do so and without first giving the Union an opportunity to bar- gain over effects of the layoff decision, Respondent has violated Section 8(a)(5) and (1) of the Act. 7. By unilaterally laying off employees on July 2, 1982, without notifying the Union of its decision to do so and without first giving the Union an opportunity to bargain over effects of the layoff decision, Respondent has vio- lated Section 8(a)(5) and (1) of the Act. 8. By its failure to demand that Respondent meet and bargain over the effects of its decision to lay off employ- ees temporarily on June 24, 1982, UBC Local 569 waived its right to claim the bargaining obligation at a later date. 9. By its July 14, 1982, failure to demand that Re- spondent bargain over the effects of its decision to lay off employees permanently on July 2, 1982, UBC Local 569 waived its right to claim the bargaining obligation at a later date. THE REMEDY Having found that IDT has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom, to post a notice, and to mail the notice to each employee employed in the unit just prior to the layoff of July 2, 1982 , by mailing it to each em- ployee at his or her last known address. As described in the analysis section of this decision, no further remedial relief is appropriate inasmuch as the Union waived its rights to bargain over the effects of the layoffs of June 24 and July 2, 1982. On these findings of fact, conclusions of law, the entire record, and pursuant to Section 10(c) of the Act, I issue the following14 ORDER - The Respondent, Intersystems Design and Technology Corp., Pascagoula, Mississippi, its officers, agents, suc- cessors, and asigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their union activities and threatening them with discharge and plant closure if they select a union as their bargaining representative. (b) Refusing to bargain with UBC Local 569 by unilat- erally laying off employees without notifying the Union of the decision to lay off and without giving such bar- gaining representative an opportunity to bargain over the effects of the decision to lay off employees from the fol- lowing bargaining unit: All production and maintenance employees em- ployed by IDT at its Pascagoula, Mississippi, oper- ation, excluding all office clerical employees, tech- nical employees, professional employees, truck driv- ers, guards, and supervisors as defined in the Act. (c) In any like or related, manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take' the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its facility in Pascagoula, Mississippi, copies of the attached notice marked "Appendix." 1 s Copies of the notice, on forms, provided by the Regional Director for Region 15, after, being signed and dated by the Re- spondent's authorized representative, shall, be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall betaken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (b) Mail a copy of the notice to each employee em- ployed in the bargaining unit, including any employee or termporary layoff or leave of-absence, on July 2, 1982, immediately prior to the layoff of that date, addressed to the employee at his or her last known address. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 14 If no exceptions are filed as provided in Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be waived for all purposes 15 If 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 Nation- al 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."