Van Dorn Co.

VAN DORN MACHINERY CO. 1233 Van Dorn Plastic Machinery Co., Division of Van Dorn Company and District Lodge 54 of the International Association of Machinists and Aerospace Workers, AFL--CIO. Case 8-CA- 11669 30 November 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 14 December 1982 the National Labor Rela- tions Board, by a three-member panel, issued a De- cision and Order in this proceeding,' finding, inter alia, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet and bargain with the Union over a decision to change its policy concerning paid lunch periods. On a petition for review and cross-application for enforcement of the Board's Order, the court of appeals issued a de- cision enforcing the Board's Order in part, denying enforcement in part, and in part vacating and re- manding for further proceedings.2 The court remanded to the Board the issue of the Respondent's unilateral change of its paid lunch period policy. The General Counsel and the Re- spondent had entered into a stipulation, which stated in part that the Respondent's change in its paid lunch period policy "was instituted by the Re- spondent due to business necessity." In its decision, the Board had rejected the argument that the stipu- lation brought the Respondent's unilateral change within an exception that permits unilateral changes based on "compelling economic considerations."3 On appeal, the court found that it was not clear from the record what the parties intended when they entered into the stipulation, and it concluded that a remand was necessary to determine the cor- rect interpretation of the stipulation. The court stated further (736 F.2d at 349): If the stipulation is found to be ambiguous the Board must consider extrinsic evidence of the intention of the parties in entering into it. If the Board finds from such evidence that no agreement was actually reached and that the stipulation is a nullity, then fairness requires that Van Dorn be given an opportunity to es- tablish "compelling economic considerations." The court's order also required the Board, in considering whether "compelling economic consid- ' 265 NLRB 864 2 Van Dorn Plastic Machinery Co. v NLRB, 736 F 2d 343 (6th Cir 1984). s See Mike O'Connor Chevrolet-Buick-GMC Co, 209 NLRB 701 (1974), enf denied on other grounds 512 F.2d 684 (8th Cir 1975) erations" were established, to categorize the Re- spondent's lunch period action under NLRB v. First National Maintenance Corp., 452 U.S. 666 (1981), as either a decision that was "almost exclu- sively `an aspect of the relationship' between em- ployer and employee" and must be bargained, or a decision that had only an "indirect and attenuated impact on the relationship" or was made to pre- serve the business and involved a fundamental change in scope or direction and need not be bar- gained (736 F.2d at 349). On 8 April 1985 the Board requested the parties to file statements of po- sition. The Respondent, the General Counsel, and District Lodge 54 of the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), each filed a statement of position. The Respondent also filed a Motion for Summary Judg- ment and brief in support, to which the General Counsel filed a response and the Union filed a brief in opposition. The Respondent filed a reply brief. On 2 January 1987 the Board issued its Order (not included in bound volumes) reopening the record and remanding the proceeding to the ad- ministrative law judge. Having considered the court's decision as the law of the case, the Board reviewed the record and the parties' submissions and concluded that the stipulation was ambiguous, the extrinsic evidence established that in formulat- ing the stipulation there was no meeting of the minds between the counsel for the General Counsel and the Respondent's attorney, no agreement was actually reached, and the stipulation was therefore a nullity to the extent it recited that the Respond- ent's lunch period change was due to "business ne- cessity." Accordingly, the Board remanded the proceeding to the administrative law judge for the purposes of giving the Respondent an opportunity to establish "compelling economic considerations" for its lunch period change and to categorize the lunch period action under First National Mainte- nance, as instructed by the court. A hearing was then held before Administrative Law Judge Robert G. Romano on 10 February 1987, and on 23 July 1987 the judge issued the at- tached second supplemental decision in this pro- ceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and the Union 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 286 NLRB No. 117 1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD decided to affirm the judge's rulings, findings,4 and conclusions5 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Van Dorn Plastic Machinery Co., Strongsville, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. 4 In the circumstances of this case , we agree with the judge that the number of employees affected by the Respondent's lunch period change does not constitute a defense to the allegation that the Respondent's con- duct violated Sec 8(aX5) and (1) of the Act. 6 Members Babson and Stephens find that under any of the views ex- pressed in Otis Elevator Co., 269 NLRB 891 (1984), the Respondent's lunch period change constitutes a mandatory subject of bargaining Richard Mack, Esq., for the General Counsel. Keith A. Ashmus, Esq. and Gregory A. Jacobs, Esq. (Thompson, Hine and Flory), of Cleveland, Ohio, for the Respondent. David Roloff, Esq. (Gaines and Sterns Co. L.P.A.), of Cleveland, Ohio, for the Charging Party. SECOND SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT G. RoMANO, Administrative Law Judge. I heard this second supplemental proceeding on 10 Febru- ary 1987, pursuant to a Board Order reopening and re- manding proceeding, dated 2 January 1987. The Board remand is made pursuant to decision of the Sixth Circuit Court of Appeals in 736 F.2d 343 (1984). There the court enforced in part, denied enforcement in part, and in part vacated and remanded for further proceedings prior Board Decision and Order in a related consolidated pro- ceeding found at 265 NLRB 864 (1982). The central issue on remand is whether Respondent violated Section 8(a)(5) and (1) in making conceded and found unilateral change in its paid lunch policy on 7 October 1977 while the Employer's objections to election were pending. Em- ployer's objections were subsequently overruled, and the Union has been certified as collective-bargaining repre- sentative. At the original hearing the General Counsel and Re- spondent had entered a stipulation that stated in part that the Respondent's change in its paid lunch period policy "was instituted by the Respondent due to business neces- sity." The Board initially decided that this stipulation did not satisfy, or bring Respondent's otherwise unlawful unilateral change within the "compelling economic con- siderations" exception of Mike O'Connor Chevrolet-Buick- GMC Co., 209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). On appeal, while observing that a stipulation once entered into should be construed to give it legal effect (case cite omitted), the court found that it was not clear from the record what the parties intended when they entered into the stipula- tion; and it concluded that a remand was necessary to determine the correct interpretation of the stipulation. The court in that regard stated (736 F.2d at 349): If the stipulation is found to be ambiguous the Board must consider extrinsic evidence of the inten- tion of the parties in entering into it. If the Board finds from such evidence that no agreement was ac- tually reached and that the stipulation is a nullity, then fairness requires Van Dorn be given an oppor- tunity to establish "compelling economic consider- ations." In considering this question the Board would be required to categorize the lunch period action within the holding of First National Mainte- nance Corp., 452 U.S. 666 . . . (a decision which is "almost exclusively 'an aspect of the relationship' between employer and employee" must be bar- gained but a decision which only has an "indirect and attenuated impact on the relationship" or is made to preserve the business and involves a funda- mental change in scope or direction need not be bargained.) Regardless of the outcome of the remand, we affirm the Board's holding that Van Dorn is required to bargain with respect to the ef- fects of the lunch period decision. Id. at 677-78 n. 15 . . . ; see NLRB v. Gray-Grimes Tool Co., 557 F.2d 1233 (6th Cir.), cert. denied, 435 U.S. 907.. . (1978). The Board has accepted the court's decision as the law of the case. On subsequent Board request, each of the parties, inter alia, filed statements of position. Prior trial counsel for the General Counsel and Respondent, in- volved in making the stipulation, filed affidavits in regard to the stipulation they entered. On review of the submis- sion the Board determined first that the stipulation is am- biguous, particularly in view of the court's conclusion that it is not clear from the record what the Respondent and the General Counsel intended when they entered into the stipulation; and, because the stipulation arguably may be read to support both the General Counsel's and the Respondent's interpretations of it. The Board next considered the parties' submitted extrinsic evidence bear- ing on the intention of the Respondent and the General Counsel in entering the stipulation. The Board thereupon concluded, secondly, that in formulating the stipulation there was no meeting of the minds between counsel; that no agreement was actually reached; and that, therefore, stipulation is a nullity to the extent that it recites that the change was due to "business necessity." Board remand thus came to me for the purpose of (otherwise) taking the additional evidence required by the court's opinion. In that respect the Board had earlier specified that the remand, pursuant to the court's order, is to give Respondent an opportunity to establish "com- pelling economic circumstances" for its lunch period change; and with further direction that the administrative law judge is to categorize the Employer's lunch period action under NLRB v. First National Maintenance Corp., 452 U.S. 666 (1981), as instructed by the court. Board remand also ordered, on conclusion of hearing, prepara- tion and service of a supplemental decision containing VAN DORN MACHINERY CO. findings of fact, conclusions of law, and recommenda- tions with respect to the issues on remand. The Procedural Question At the remand hearing Respondent initially sought to offer certain testimonial evidence of its (involved) trial counsel on aspects of the extrinsic evidence bearing on the intent of the parties in entering the stipulations that were (asserted) as not covered in his prior affidavit sub- mitted to the Board. The evidence sought to be offered on intent of the parties in entering the stipulation clearly related to an issue previously addressed and already de- termined by the Board. Objection of the other party was promptly placed to this line of inquiry. Respondent did not contend that the Board's remand order had remand- ed the issues of stipulation ambiguity and party intention in entering the stipulation, but urged (generally) the court did. In sustaining the objection, I ruled that the Board had already determined the stipulation issue(s); the stipulation issue(s) had not been remanded to me; and if the Respondent felt aggrieved by the Board's determina- tion thereon, and/or scope of the remand order, Re- spondent should have advanced its contention(s) to the Board, and sought a reconsideration of the issue(s) by the Board, and/or seek any necessary clarification from the court, and not in effect seek to obtain procedural relief from me on that which was beyond the Board's remand order to me. No claim was raised by Respondent that it was (only) seeking to elicit newly discovered or previ- ously unavailable evidence. Respondent then requested, and was permitted to present, an offer of its intended proof in question and answer form. On pressed objection of the General Coun- sel that the proffer clearly addressed a matter that the Board had already determined, specifically, the Board's (fundamental) conclusion that the stipulation is a nullity, the General Counsel urged that such proffered evidence (bearing on contention of counsel in entering the stipula- tion) had no purpose or place in the hearing; and it is not an issue the Board had remanded. Respondent's offer of proof was also thereupon rejected. Although I further ordered the hearing to proceed, an adequate opportunity was otherwise provided to Respondent to take an interim appeal of the administrative law judge's ruling(s), if it de- sired, within a provided (agreed) reasonable period. Respondent has subsequently filed with me a position letter (copy served on other parties), which is made part of the record (ALJ Exh. 3). Therein Respondent advised that it would not seek an interlocutory appeal of the above rulings; and that, "Respondent, however, reserves its right to file an exception with the Board should such action become necessary." In subsequent brief, Respond- ent has more explicitly stated, "By failing to direct the ALJ to take extrinsic evidence one the stipulation of the parties, the Board disregarded one of the steps mandated by the Court." Having considered all the above circumstances and premises, I reaffirm the prior rulings. To extent Respond- ent has sought at hearing to place (general) reliance on the court's remand and, in brief, has made more explicit contention thereon, I need not reach the substance of the 1235 same, as they continue to seek to raise matter(s) wholly, beyond the Board's remand to me. On the entire record and my observation of the de- meanor of the witnesses, and after careful consideration of the briefs of the General Counsel and the Charging Party timely filed about 10 April 1987, the brief of Re- spondent filed about 5 May 1987, and the reply brief of the Charging Party filed on 15 May 1987, I make the fol- lowing additional FINDINGS OF FACT The facts are essentially not in dispute. They are only in some measure complicated. I. THE WRITTEN POLICIES A. Prior Written Policy Respondent's pertinent policy and procedure No. 2010 on "Hours Worked," issued and was effective "4-19-76." It provides: I. GENERAL The regular work day will be eight (8) hours. The regular work week will be forty (40) hours, and will be worked during the period beginning with the start of the night shift on Sunday and conclud- ing with the end of the afternoon shift on Friday. A thirty (30) minute lunch period is scheduled within each shift, for which employees are not paid. In cases where continuous operations are required on a three shift basis, those employees will have a fifteen (15) minute paid lunch. The number of employees who are to receive the paid lunch will be deter- mined by the shift with the least number of employ- ees working in that classification. II. OVERTIME A. Time and one-half (1-1/2) will be paid to an em- ployee for 1. All hours worked in excess of eight hours but less than twelve hours per day in a twenty-four (24) hours (the twenty-four hour (24) period beginning with the start of the employee's regular shift). 2. All hours worked in excess of forty (40) hours in one work week. 3. All hours on Saturday. B. Double (2) time will be paid to an employee for 1. All hours worked in excess of eight (8) hours on Saturday. 2. All hours worked on Sunday. B. Written Policy Change On 7 October 1977 Respondent notified all of its em- ployees of the following change: In order to create a more productive and effi- cient operation a modification is being made to the policy on paid lunches; namely, 15 minute paid lunches will be taken by those individuals who are on a machine that requires only one operator per shift and the machine is being used on a three shift 1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD continuous operation . All other employees will be a half hour lunch. If there are any questions, please contact your su- pervisor. Respondent does not dispute there was a change in paid lunch periods of certain unit employees effected thereby. Moreover, at hearing, Respondent conceded that the General Counsel had already made out a prima facie case of 8(a)(5) and (1) violation. The Board has al- ready found and the court enforced Respondent's obliga- tion to bargain with the Union over the effects of this unilateral change in paid lunch policy . Respondent essen- tially defends presently on the limited issue of the lawful- ness of its unilateral decision; and its asserts it was not obligated to bargain over this decision . Respondent's de- fense essentially rests on the testimony of its former man- ager in the material time , Robert Neiner Jr., who alone otherwise testified in this supplemental proceeding, and whom I find to have been a generally credible witness. C. Election and Certification; the Issues Presented The underlying election was conducted on 22 April 1977. On 17 January 1978 the Board initially certified the Union as the exclusive collective-bargaining representa- tive of a production and maintenance unit heretofore de- termined appropriate. The Board subsequently vacated this certification; but again certified the Union on 14 De- cember 1982 . The above 7 October 1977 change was clearly effected unilaterally by the Employer approxi- mately 6 months after the election in which the Union had received a collective-bargaining agent designation from a majority of the unit employees voting in the elec- tion, but while the Employer's (exceptions on) objections to election were pending, and before the Board's final certification of the Union as exclusive collective -bargain- ing representative. Nonetheless, Respondent's unilateral action fall within a period the Board has determined an employer acts unilaterally at its peril if the Union is sub- sequently certified, as here, unless it can establish that its unilateral action falls within the saving exception of being based on "compelling economic considerations" as declared in the Mike O'Connor case, supra; or, the deci- sion is otherwise shown to have constituted a nonmanda- tory bargaining subject as now explicated in First Nation- al Maintenance, supra, directed for application by the court, and accepted by the Board. D. Change in Management,- Rapid Growth at Strongsville Plant Van Dorn employed Neiner at Employer's Strongs- ville, Ohio plant from November 1976 to November 1980. Willa Machines and Tool Company (Willa Ma- chines) currently employs Neiner at its plant located in Florida. Willa Machines is not affiliated with Van Dorn in any way . Van Dorn previously employed Neiner as manager of manufacturing. Neiner was responsible for the operation of the Employer's Strongsville facility, which, together with a Van Dorn Cleveland, Ohio plant, constitute a single profit-making division of Van Dorn. Although Neiner has acknowledged that the Strongsville plant showed some profit both before and after the mate- nal paid lunch policy change, Neiner has also testified that the Strongsville plant had certain long-term profit difficulties, including (undefined) periods of showing negative profit. Neiner testified that at the time he started the Employ- er was also experiencing some difficulties associated with a rapid growth at the Strongsville plant. He relates that for a few years the Company had been struggling hard with a profitability problem, exacerbated by fierce for- eign competition. Neiner explained generally that at a time of growth, profitability is difficult, because money is going out before it is coming in. Neiner 's understanding was that before he came , the manufacturing staff was not fully capable of handling the difficulties . Neiner's as- signed tasks were to eliminate any inefficiency , lack of productivity, and wasted resources and to increase pro- ductivity and efficiency at the Strongsville plant, in order to make the Strongsville operation contribute to Van Dorn's profits. Neiner testified that he made signifi- cant changes in virtually all areas, viz, in management, personnel, and not only manufacturing , but in product design. This case addresses (only) his change in one area, the Employer's paid lunch policy. In general, Neiner was responsible for the Strongsville plant's machine and assembly operations , and for all sup- port services . His responsibility extended over manufac- turing, engineering, quality control, maintenance, and, at times, production control. It was Neiner who decided that a change should be made in Van Dorn's established paid lunch policy, though the effected change had to also have the approval of Respondent's director of em- ployee relations, David C. Bragg. Only Neiner has testi- fied in this supplemental proceeding. E. Nature ofStrongsville Plant 1. Special equipment and schedules According to Neiner the Strongsville plant was initial- ly built to accommodate certain neutrally controlled (NC) major machining centers . These NC, or primary machines, have a long operating time once set up. E.g., they may run 2-3 hours making a given part. Van Dorn pruchased its above primary machines in the early seven- ties, at a cost of $200,000-$300,000, apiece. NC machines require around-the-clock operation to pay off, or to effect a payback. Although two 12-hour shifts were a possibility, Nemer relates that logic dictated , and in any event Van Dorn elected that its primary machines would be staffed on a three 8-hour-shift basis, as it is most effi- cient to run the NC machines that way. Van Dorn estab- lished an NC first shift of 7 a.m. to 3 p .m., a second NC shift of 3 p.m. to 11 p.m., and a third NC shift l l p.m. to 7 a.m. Neiner has testified relatedly that it is common for companies who have large machines and who want to keep them running on a 24-hour basis , to pay employees involved in the continuous operation (e.g., operator) for 8 hours, and give (the operator) a 15-minute paid lunch period . Effectively the operator works for 7 hours and 45 minutes but receives pay for a full 8-hour shift. Essen- tially the NC operator must clear out when the next shift VAN DORN MACHINERY CO NC operator arrives . Van Dorn "s machine operators, who work machines on a three-shift basis, both before and after the 7 October 1977 policy change in paid lunch, worked the above 8-hour shifts; and they similarly received, and currently receive a 15-minute paid lunch period . The change did not affect them. In Neiner's experience, however, it was not common for a company to pay a paid lunch period to employees whose services are not needed on a continuous operation basis. When Neiner arrived at the Strongsville plant he found Van Dorn's paid lunch system did so; and that it was also complicated in operation . It may be observed that Neiner arrived in November 1976, but did not seek to effect a change in Employer's above paid lunch period until 7 October 1977 , thus almost a year later. At the time of his arrival in late 1976 , Neiner thus found the primary machine operators were not the only employees receiving 15-minute paid lunch periods. Neiner relates that all the machine shop personnel were capable of receiving the paid lunch period, though as a practical matter there was a more limited number who did. Neiner estimated the number affected by the change to be about 30-40, or 10 percent of the overall unit. As the number of employees in the appropriate production and maintenance unit numbered approximately 350, the 10 percent, or 35 , is congruous with the number of 35 previously approximated. 2. Affected departments and classifications Van Dorn employs machine shop, inspection, and tool department employees in other material classifications of deburring (or debur file), inspection, material handler, tool crib attendant, and tool grinder. An inspector checks the production as they come from the machine, in order to ensure that the products are meeting standards. Inspectors also work with operators (and foremen) to solve problems that develop with the machine in oper- ation. Material handlers drive tow motors and haul mate- rial around the plant . They also clean various plant areas. Tool crib attendants distribute tools as needed; and a tool grinder (one per shift) uses a small machine to grind tools to make sure that they are in top condition for use. Although Neiner, at least on one occasion, has testified that it makes some sense to pay a paid lunch to an in- spector to be on the same schedule as a machine opera- tor with whom the inspector has occasion to work close- ly, Neiner has also testified that he never knew why Van Dom paid a paid lunch to the others-it never made sense to him . E.g., Neiner has related that Burr file workers were not continuous machine dependent; spacewise they did not have to clear out for an oncom- ing shift; and there was no need for them to have been given a paid lunch period. Neiner also saw the paid lunch period system as a drag on productivity because Van Dorn was giving away a lot of hours, discussed fur- ther, infra. 1237 F. Complications and Difficulties 1. Complications in schedules and shifts a. Number keyed to least-manned shift Neiner explains that the paid lunch system as operated at Van Dorn prior to change was keyed to least -manned shift (essentially) irrespective of continuous operator re- lationship or machine need . Thus, he explained, if there were 12 employees working in deburring on the first shift, 10 on the second shift, and 5 on the third shift, under the prior paid lunch policy, the Employer would pay 5 (deburring) employees on each shift a 15 -minute paid lunch period . These employees would then work an 8-hour shift, performing 7 hours and 45 minutes of actual work and receiving a 15-minute paid lunch period, for a total of 8-paid hours. However, the other 12 deburrers (7 on the first shift and 5 on the second shift) did not re- ceive the paid lunch period . Instead they worked an 8- 1/2 hour shift (e.g., from 7 a.m. to 3 :30 p.m., or, from 3 p.m. to 11:30 p.m., respectively), as did most other unit employees. They received a one-half-hour unpaid lunch, and were paid for the (full) 8 hours they worked. In effect shifts within machine shop, inspection, and tool de- partments regularly overlapped. b. Foreman continues designations The Employer employed nine foremen (two of whom were actually general foremen) in material departments. Each foreman was assigned to an area and supervised ap- proximately 25 employees. Each week each area foremen would determine for each area what that particular fore- man's staffing would be on the least-staffed (usually third) shift. The foremen then had to determine how many and who on his shift in each classification were going to be on paid or unpaid lunch schedule. Whoever was senior (in classification) was entitled to first choice. c. Different machine shifts,- related effects A schedule preparation and report to accounting oc- curred each week because cf the regular changes occur- ring from week to week. Neiner explained that because of the growth, they were in a state of flux . There were a lot of people regularly changing shifts, leaving, and ar- riving new. However there were also regular changes in staffing during the week, due to absenteeism, or new as- signment (as result of job bid or new hire) or, for what- ever reason. If a nonoperator employee were absent, e.g., deburring employee , Employer would normally just reas- sign the work to another similarly classified worker. If an operator was absent it could cause additional prob- lems, though Employer would transfer an unpaid lunch period operator, if it could. A long-term absence of a paid lunch operator brought seniority bid into play. If a machine, due to production requirements , or oth- erwise, is to be operated on but two shifts, 8-hour shifts are then less efficient. Thus the staff of those machines (including operators) also worked a scheduled 8-1/2-hour shift, composed of 8 full hours work and with 1/2 hour unpaid lunch hour . Thus it is clear of record that staff of 1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD side-by-side machines might or might not be on paid lunch basis. d. Open machines, additions to base shift On one of the three NC shift operations, e.g., on a third shift, a machine might also be open, i.e., a foreman be looking for someone for the machine, but not have an operator. A machine staff thus might not be on a paid lunch for a temporary reason. If (such) a third shift on a machine was open, but was filled midweek, that mandat- ed a paid lunch period for those employees working on the machines (apparently) for the remainder of that week. However, if a machine was scheduled and staffed on a three-shift basis for the week, and on a Tuesday or Wednesday an opening developed on a shift, according to Neiner, it was the Employer's practice to continue to pay the paid lunch period to the other (scheduled) em- ployees on that machine shift for that week. Finally, if production needs required an employee addition on the least-manned shift, that circumstances in turn (apparently from that point) effected the number to be qualified to receive a paid lunch period on the other shifts. e. Foremen, accounting, and overtime problems Changes of all types were difficult for the foremen to keep up with . In the administration of the system/- situations, foremen but particularly accounting personnel were confused; and accounting personnel were especially confused in regard to overtime. Accounting had the basic problems of determining from schedules and timecards who was on paid lunch- time and who not. However, Neiner related that ac- counting had a nightmare trying to figure out the re- quired changes that were made midweek . Accounting had an added problem if a paid lunch employee was held over and worked overtime because if an employee did not leave the plant at lunchtime , the employee was not required to punch out at lunch. An employee with unpaid lunch period, and who did not leave the plant, was indistinguishable on basis of review of timecard punches (8-1/2 hour span) from an employee on paid lunch period who was held over for one-half hour of overtime (thus also showing 8-1/2-hour span between timecard punches). Each foremen spent a lot of time with accounting ensuring that the proper people got paid the proper amount of money. Neiner testified initially that each foreman spent at least 2-3 hours of each week in the preparation of the paid lunch schedules . On the other occasions, Neiner es- timated that foremen spent 4-6 hours on the schedules and changes, exclusive of time the foremen spent answer- ing accounting questions . Neiner was unable to estimate how much of the foremen's time was taken up with ac- counting questions. Neiner did testify, however, that he viewed the foremen's lost time (thus in regard to admin- istering the system of preparation of schedules , handling changes, and dealing with accounting on related pay matters including overtime) as a terrible loss of produc- tivity. 2. Difficulties with inspectors The nature of the work performed by the primary ma- chines was relatively complex, materially requiring a fair amount of inspection services. Depending on the staffing, inspection employees received a paid lunch. Neiner as- serts the principal problem here was the few inspectors involved. If there were seven inspectors on the first shift, six on the second shift, and four on the third shift, four on each shift received a paid lunch period. However, of the four on third shift, two may be on the line, and two in file inspection, where Neiner asserts it made no differ- ence to machine operation. Although Neiner could not recall how an inspection employee was assigned to an area (i.e., whether directed or by choice/seniority exer- cise), either way, an inspection employee worked with some 8-hour and some 8-1/2-hour shift employees. There were associated problems. In the event of a product problem with the machine, an inspector worked closely with the operator in finding the source of the problem and solving it. Problems might occur on a three-shift (8-hour) machine, or a two-shift (8-1/2-hour) machine. If the particular inspector in the area is himself on a three-shift or 8-hour work basis (e.g., 7 a.m. to 3 p.m.), at shift end, the inspector left at 3 p.m. In that instance, the (two-shift) operator, who may be close to finding the problem, would then have to explain the problem, and where they were in solving it, to the new inspector arriving at 3 p.m. With a two-shift pri- mary machine operator himself leaving at 3:30 p.m., the operator taking over (at 3:30 p.m.) would then have to have the problem explained to him in turn. According to Neiner, inspectors on paid lunch 8-hour shifts gave him the most problems in solving a problem with two-shift machine operators. 3. The problem of 15-minute paid lunch policy enforcement Neiner relates that most workers stayed near their ma- chines during their lunch period in case something went wrong. A paid lunch worker however is not working while on lunch. He normally washes up and eats. An em- ployee receiving the 15-minute paid lunch could eat near the machines; or he could clean up and go to the Em- ployer's lunchroom. He could not leave the plant, as em- ployees on unpaid one-half-hour lunch period could, but also might not do. No employee was allowed to wander the plant. Van Dorn does not have employee breaks. Neiner asserted that the difficulties with enforcing the hours was one of the things that prompted him initially to consider the paid lunch period situation. There were a lot of people in the eating area; and it seemed to him that at times there were no people at the CN machines. In his opinion there was an abuse of the 15-minute paid lunch period. Neiner explained that a foreman always had some people working, and their attJntion was required some place or another. A given foreman could tell Neiner if a certain employee was or was not on paid lunch period that day; and the foreman could also tell if a supervised employee was at the lunchroom or not. However, Neiner could not keep tract of who belonged in the VAN DORN MACHINERY CO. 1239 lunchroom. Neiner readily acknowledged that he never made an issue of that with the foreman. Neiner explained that he was not about to because a foreman's involve- ment in that would cost a lot more than an employee who took more than a 15-minute lunch period. The fore- man's technical expertise was more required on the floor to improve efficiency of the machine, and to make it a profitable operation. G. Other Difficulties 1. Shop clutter and OSHA citations The Strongsville plant was a busy operation and gen- erated considerable clutter. The Employer had difficulty in maintaining shop cleanliness. There was continual clutter in the aisles and the material handlers were not able to keep up with it. Eventually, the clutter blocked aisles and fire extinguisher access. On investigation, OSHA cited the Employer on approximately 12 items. The bulk of the citations were for blocked aisles, blocked fire extinguishers, or general disorderliness. There were two or three items outside the congested areas. With the paid lunch change effected, the Employer had no diffi- culty in correcting the problems within OSHA-allowed time periods. 2. Related consideration Neiner observed relatedly that if he changed the 15- minute lunch period of the employees not directly in- volved in the continuous machine operation he could then use their services to help clean up the clutter. By doing so, that is changing these employees to an 8-1/2- hour day, he would pick up not only 15 minutes of actual worktime from each such employee, but even more significantly he would obtain a half-hour overlap (e.g., in first and second shifts). Thus he could take 6-10 of those people and assign them to clean up the cluttered areas for a half hour period, and have a real impact. As a result of the change in the paid lunch period policy that he eventually made, Neiner was able to do so. H. Neiner's Decision Considerations Neiner considered the impact of changing the paid lunch period system to provide a paid lunch (only) to people on the three-shift-operated machines, but not to people working indirectly (to the continuous machine operation). Neiner estimated there were 10--20 lost hours of productivity a day, a significant amount of lost pro- ductivity. (Neiner considered therein not only the 15 minutes of production pickup, but one-half-hour overlap result.) Neiner hoped to utilize the lost hours; to accom- plish more work for the same (paid) time; and to address the health and safety hazzards, OSHA problems. Neiner has testified that when you are struggling to stay alive, you cannot afford those (lost) hours. Neiner also testified that he (lid not consider the change would be a major problem. Neiner asserts the employees affected were not going to be expected to work any longer, produce any moire, and they were not going to lose any pay. The only negative was that they would leave work a half hour later; and a positive effect was that they would have a half-hour lunch period, and could leave the plant if they desired. According to Neiner, he was aware that some would feel a little upset, but he did not expect a big difficulty. However, Neiner has acknowledged that most of the employees considered receiving a 15-minute paid lunch period as a benefit be- cause they only had to be there 8 hours to get their reg- ular pay, as compared with most other unit employees who were required to be there for 8-1/2 hours, albeit with one-half hour off for an unpaid lunch. Neiner consulted Bragg. Neiner explained his proposed change of the paid lunch period as twofold in purpose: to increase productivity and to make hours available to handle the health and safety clutter that was becoming a problem. Neiner relates that Bragg pointed out their status in regard to the Union, and the Employer was not free to make unilateral changes without some good solid need to make the changes, and not because it seemed like a good idea. According to Neiner, Bragg had concerns, and inquired how important it was. Neiner has variously testified that he did not consider it a very significant change for employees, but he did consider it a very im- portant change as far as the viability of the operation; and that he told Bragg he (Neiner) felt it was quite im- portant or, of considerable importance, and would have minor impact on the shop; and that he probably told Bragg that it had to be done. Neiner has acknowledged that not all those employees affected by the change were used on cleanup; some ap- parently objected to cleanup assignment, and they were used in further production. Neiner has also acknowl- edged that he did not calculate the profit increase of eliminating the 15-minute paid lunch period as such; or the savings in supervisors' time; and that he did not have timestudies done. However, he has testified that he did look at productivity figures (production hours) of the machine shop; and that he did a formal cost analysis on productivity in the department, though not related to this particular change, as there were a number of changes made at the same time. Neiner has also acknowl- edged that he could have accomplished the same thing (re cleanup) by hiring additional help, or by overtime, but hiring additional help cost money, and use of over- time cost more. Neiner candidly relates that what he saw was an opportunity to take a policy, which did not make a whole lot of sense in the first place, and gain a signifi- cant number of hours rather than use overtime or hire, which would have magnified the accounting confusion and added people to congested areas. Neiner acknowl- edged that he did not hire anyone for this material pur- pose. II. CONTENTIONS AND PRELIMINARY FINDINGS The General Counsel centrally contends that Respond- ent was under a duty to notify and bargain with the Union concerning its change in paid lunch policy under the holdings of both Mike O'Connor Chevrolet, 209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975), and NLRB v. First National Mainte- nance Corp., 452 U.S. 666 (1981). The General Counsel argues from the Mike O'Connor Chevrolet case itself, 1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supra at 704, we learn that "sound business consider- ations" are not sufficient to excuse an employer from its duty to bargain about "wages, hours and other terms and conditions of employment" within the meaning of Sec- tion 8(d); and that neither does economic expediency, even in good faith. Fleming Mfg. Co., 119 NLRB 452, 465 (1957). The General Counsel asserts that it is beyond argument that the Employer's unilateral change in the paid lunch period policy involved wages and hours of employment within the meaning of the Act. However, the General Counsel concedes that the cases cited by the Board in Mike O'Connor Chevrolet, supra (209 NLRB at 703, fn. 10), otherwise offer little substantive guidance as to what in fact the excepting phrase "compelling eco- nomic considerations" means. Charging Party Union would appear to have conceded as much in its relation in brief that the cases do not, "flesh out to any extent a more precise definition of `compelling economic consid- eration."' The General Counsel would appear to advance as an appropriate further explanation of the meaning of the phrase, that there must be extraordinary circumstances present to compel an employer to act immediately. In that respect, the General Counsel has severally argued that there is not a modicum of evidence that Van Dorn, or the Strongsville plant in particular, was in dire straits; nor is there shown in any sense that an economic emer- gency was confronting management requiring corrective measures so immediate that time devoted to bargaining could have or would have proved disastrous. The Gener- al Counsel more specifically agrues that there is no evi- dence that the business was being jeopardized by this paid lunch period in such a manner that it could not have been continued for the period necessary to bargain the change, without irreparable damage to the Respondent's profit or production picture. Finally, the General Coun- sel has also argued that there was no evidence of any emergency in operations so compelling that a change in this plan, if not effected immediately, would have been catastrophic to the present or future economic health of the Respondent. It would thus appear from the above that fair kernel of the General Counsel's contention is that there must be clear and extraordinary circumstances present such as reveal some real and immediate economic danger to the Employer should it fail to act. Only in such circum- stances is the Employer truly compelled to act, and thus to be excused when it so acts unilaterally prior to final determination of the legal efficacy of the unit the em- ployees' designation of the Union as their exclusive col- lective-bargaining agent. Otherwise the Employer is at risk in unilaterally changing "wages, hours, and other terms and conditions of employment." The Union flatly submits that the Mike O'Connor Chevrolet rule was designed to permit an employer who was on the verge of economic collapse to make changes in order to help prevent the imminent loss of the business as a whole. The Union contends that Respondent has failed to show anything here so compelling. The Union further argues, in contrast with that proposal, that in regard to what the Employer has shown, Respondent seeks to give new meaning to the term in its advancement of the Mike O'Connor defense, where the employer was profitable both before and after the change; and where it did not even know the specific effect of the paid lunch change on the cost of its doing business. The Union asserts the Employer here became more productive by simply taking a benefit away from employees. In contrast, Respondent argues that hearing evidence has established clearly that when Van Dorn modified its paid lunch policy, it was motivated by "business necessi- ty." The Employer argues essentially that under Mike O'Connor Chevrolet, it faced two choices. It could refrain from taking any action, or it could act at its peril and unilaterally implement change, and face a backpay liabil- ity if the Employer's objections are overruled (as they have been). Either way the Employer asserts employer and employees are hurt. However, the Employer would draw a distinction from where it asserts an employer cannot act unilaterally at all, as in the case where the Union has been previously certified and the issue is one of continued bargaining status, as raised in an RD (decer- tification) petition. The Employer urges, in contrast, that the circumstances are significantly different in a Mike O'Connor type case in that: The Union in these cases has not yet been certi- fied as the true representative of the employer, and the employer is under no duty to bargain with the Union. See General Electric Co., 163 NLRB 198 (1967). Bargaining with the Union therefore is not a true option open to the employer. Moreover Respondent argues that the Board has ac- cordingly provided a way out of the dilemma that an employer faces in a Mike O'Connor Chevrolet case. Re- spondent's argument made in that respect is: If the reason for the change is compelling, the change can be made. This policy limits changes to those that must be made and preserves the rights of the employees to have a real, and not a [P]yrrhic victory. Van Dorn was faced with the business ne- cessity or making the change in policy immediately. For counsel for the General Counsel to suggest that Van Dorn should have waited until certification and then bargained with the Union ignores the fact that at the time the change was made, six months had already expired since the Union election and that Van Dorn had not inkling how many more months or years would pass before the Union would gain certification. Such inordinate delay in light of the employer's need to make business and economic decisions are precisely the reason why Van Dorn was compelled to modify its paid lunch policy. Respondent essentially agrees that the Board has pro- vided little guidance as to what the phrase "compelling economic considerations" means within the context of the Mike O'Connor Chevrolet principle of an employer acting "at its peril." Respondent, however, would have it observed that without reference to any precedent the General Counsel nonetheless has contended that "the VAN DORN MACHINERY CO. 1241 employer must demonstrate that it faced an economic emergency reguiring corrective measures so immediate that time devoted to bargaining could have or would have proved disastrous." Respondent argues that (stand- ard) is a far cry from the Board's provided showing of "compelling economic circumstances" as a defense for employer necessary unilateral action, "so as to avoid forcing employers to commit economic suicide while awaiting Board action." Respondent would also have it observed that two courts in reviewing the decision under the Mike O'Connor Chevrolet case have considered whether the employer's decisions were compelled by "economic necessity," NLRB v. Albs-Chalmers Corp., 601 F.2d 870, 874 (5th Cir 1979); and Sundstrand Heat Trans- fer v. NLRB, 538 F.2d 1257, 1259 (7th Cir. 1976). Re- spondent contends that common to both standards is a premise that the employer's action is dictated by "great or imperative need." Respondent additionally contends that the General Counsel has wrongfully focused on whether there was sufficient time to bargain and not on the motivation for the Employer's action. Respondent essentially submits that the test must be one that can be applied by a reason- able manager, one attempting to comply with the law; and, that as such, it must be based on whether a reasona- ble manager, confronting a situation, would say, "this must be changed." Van Dom further submits that no reasonable manager confronting the above existing paid lunch policy, with its demonstrable waste, confusion, in- efficiency, and lack of purpose, in a marginally profitable and highly competitive business , could say anything else other than that the policy must be changed. The Employer would further have rejected the Gener- al Counsel and Union's apparent imposition in the stand- ard that there be present a condition of imminent finan- cial disaster. The Employer instead submits "one can hardly imagine an economic consideration more compel- ling than the continued viability of business ." Finally the Employer argues that "by no stretch of the imagination of any amount of second guessing could Van Dom have been expected to endure such an intolerable policy from 1977 until 1982." In reply brief the Union counters essentially that the Employer cannot have it both ways. It can not argue that its unilateral change in its paid lunch period policy was essentially insignificant, having little or no effect on the terms and conditions of employment of a limited number of affected employees and, concurrently , assert that if the change was not made it could have been tan- tamount to "economic suicide." To the contrary, the Union argues essentially that on close analysis, apart from certain conclusory statements of Neiner, the Em- ployer has presented no hard evidence that it was about to commit economic suicide if it did not change its paid lunch period policy in the manner it did. The Union further argues that in advancing a claim that under Mike O'Connor Chevrolet, the applicable standard is now to be defined to be that if a "reasonable manager" would say "this must be changed," Respond- ent itself adopts unprecedent standard , one without any legal foundation, and one that would obliterate the (prior) meaning of Mike O'Connor Chevrolet. The Union urges such a standard would have the ready result that an employer would now be free to make whatever change it deems important. The Union also contends, specifically, that the Em- ployer's estimation of a savings of 10-20 hours of pro- duction a day being effected by the change is exaggerat- ed, and not supported of record beyond the 7- 10 hours reasonably established of record , viz, a 15-minute daily production time saving multiplied by the 30-40 individ- uals affected; but that, to that extent, the Employer is also wrong in asserting that the affected individuals did not have to work any additional time as a result of the change. The Union further argues that the Employer knew it was acting at great risk in making the change in its paid lunch policy, chose to gamble, and quite clearly lost. With regard to proceedings delay, the Union points out essentially that employees selected their bargaining agent in April 1977, and they have been waiting the same period for a collective-bargaining-right vindication in this matter; and finally the Union essentially argues that it should not be lost sight of that the delays that have occurred are of the Employer's own making. The General Counsel also argues that Respondent was obligated to bargain with the Union concerning its deci- sion reached on a paid lunch period change , before uni- laterally effecting a change, under the principles of First National Maintenance, supra, and the Board-related hold- ing in Otis Elevator Co., 269 NLRB 891 (1984). In that regard the General Counsel and the Union both contend, and Employer does not appear to contracontend , that the Employer's change in its paid lunch period policy had nothing to do with a change in the nature and direction of Van Dom's business. The General Counsel has ob- served (accurately in relationship to the change in lunch period policy itself) that there was here no supporting base of extraordinary activity of such order. The change involved no partial closing or selling; and it involved no decision to: dispose of assets, restructure , reconsolidate operations, or subcontract; or to invest in any labor- saving machinery; or to change any methods of finance, sales, advertising, product design, or any other facet of its business. The General Counsel argues (and I find) that Respondent's business was the same both before and after the change. What materially changed , so argues the General Counsel additionally, was solely the hours of certain employees, and the fact they were no longer paid a 15-minute paid lunch period, which the General Coun- sel agrues was an established term and condition of em- ployment of those affected employees, and/or clearly an element of the employees' wages and hours, and thus a core mandatory subject of bargaining under both First National Maintenance and Otis Elevator, supra. The Union also contends that Employer 's decision to change its paid lunch policy was a mandatory subject of bargaining under First National Maintenance, supra; and in that respect would rely more precisely wholly on the court's grouping of management's decisions in that case into three categories, 452 U. S. at 676-677, as follows: Some management decisions, such as choice of advertising and promotion, product type and design, and financing arrangements, have only an 1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD indirect and attenuated impact on the employment relationship . Other management decision, such as the order of succession of layoffs and recalls, pro- duction quotas, and work rules, are almost exclu- sively "an aspect of the relationship" between [em- ployer and] employee. The present case concerns a third type of management decision, one that had a direct impact on employment, since jobs were inex- orably eliminated by the termination , but had as its focus only the economic profitablity of the contract with Greenpark, a concern under these facts wholly apart from the employment relationship . This deci- sion, involving a change in the scope and direction of the enterprise, is akin to the decision whether to be in business at all, "not in [itself] primarily about conditions of employment, though the effect of the decision may be necessarily to terminate employ- ment." [Citations omitted.] The Union first argues that the Employer 's change ef- fected in paid lunch period policy clearly falls in catego- ry two ("almost exclusively' an aspect of the relation- ship' between employer and employee"). The Union sec- ondly argues that the Employer has a similar task in de- fense under First National Maintenance (one akin to deci- sion whether to be in business at all) that the Union argues the Employer has under Mike O'Connor Chevrolet, viz, to show that the business' survival was immediately at stake. The Union would also rely on the Supreme Court's observation in the case that mandatory bargain- ing is based on the concept that it will result in discus- sions that are better for both management and labor, but that that would be only true where the subject is amena- ble to resolution through the collective-bargaining proc- ess, 452 U .S. at 678 . It would appear only otherwise to be observed that in First National Maintenance, the Court was there determining the question as (broadly ) raised by a petitioning employer, " [W]hether the decision itself should be considered part of petitioner's retained free- dom to manage its affairs unrelated to employment." Id. at 677. Essentially, both the General Counsel and Union would have additionally observed a Board-related state- ment in Otis Elevator, 269 NLRB at 892: [T]he critical factor to the determination whether the decision is subject to mandatory bargaining is the essence of the decision itself, i.e., whether it turns upon a change in the nature or direction of the business, or turns on labor costs ; not its effect on employees nor a union's ability to offer alternatives. The General Counsel finally argues the change that the Employer has here effected in its paid lunch period turned essentially on labor costs; and, that these costs, in- cluded the cost of the 15-minute break (paid lunch period) itself; the inspector time on job; and the (related) costs of administering the system , and managing the paper work. (I find it also turned on consideration of cost associated with required plant cleanup of clutter.) The Union has similarly argued that this was no funda- mental change in the business . Here the Employer has simply appropriated the paid lunch period of certain em- ployees for purposes of forcing those employees to work additional time without additional compensation. The Union contends that the Employer thereby unilaterally cut the hourly rate of affected employees, in violation of the Act. As noted, the Employer does not appear to seek to defend its change in paid lunch policy on the basis of any contended change in the scope, nature, or direction of the business operation. In any event, I conclude and find, on the basis of all the facts of this record, that Re- spondent Employer was not engaged in effecting a change in the scope , nature, or direction of the business in regard to its 7 October 1977 change in its paid lunch period policy. The Employer does, however , contend that the Gener- al Counsel has completely ignored a significant category of employer decisions under First National Maintenance that are excluded from the duty to bargain, namely, sub- jects that "have only an indirect and attenuated impact on the employment relationship ." 452 U.S. at 677. The Employer does not seek to have any of the examples there cited (of choice of advertising and promotions, product type and design, and financing arrangements) serve to embrace its questioned paid lunch period policy change action here. The Employer essentially argues for an extension of the elucidated covered categories as named by the court that "have only an indirect and at- tenuated impact on the (employment) relationship," (id. at 677), to be inclusive of an additional category where decisions, "impinge only indirectly upon employment se- curity," on basis of the Board 's further observation made in Otis Elevator, 269 NLRB 891 (1984). Specifically, in that regard, the Employer relies on a Board acceptance therein, id. 891, of the analysis of Justice Stewart's opin- ion in Fibreboard Corp Y. NLRB, as follows: Our understanding of the Court's construction of Section 8(d) is best explicated by Mr. Justice Stew- art's concurring opinion in Fibreboard Corp. v. NLRB, 379 U.S. 203, 217 (1964), explicitly relied on by the Court in First National Maintenance: "If, as I think clear, the purpose of Section 8(d) is to de- scribe a limited area subject to the duty of collec- tive bargaining, those management decisions which are fundamental to the basic direction of a corpo- rate enterprise or which impinge only indirectly upon employment security should be excluded from the area." 379 U.S. at 233. The Employer would then additionally rely on urged similar cases where the Board has found an employer need not bargain with the union over unilateral decisions that do not result in any material, substantial, or signifi- cant change in the employees' terms and conditions of employment, whether the same arguably are to be viewed as a benefit, loss, or increase. E.g., LaMousse Inc., 259 NLRB 37, 48-49 (1981) (employer lengthening of morning and afternoon breaks from 10 to 15 minutes); Rust Craft Broadcasting of New York , 225 NLRB 327, 329 (1976) (employer's replacement of manual recording of time at work with timecloc;k); Weather Tec Corp., 238 NLRB 1535, 1536 (1978) (employer implementation of VAN DORN MACHINERY CO. 1243 worktime attendance and pay docking procedure, and discontinuance of purchase of coffee supplies); Lawson- United Feldspar, 189 NLRB 350 (1971) (employer remov- al of soft drink vending machines, after warning about continued litter); Cherokee Culvert Co., 262 NLRB 917 (1982) (discontinuance of personal gas credit card, and reissue at time of trip need); Alamo Cement Co., 281 NLRB 737 (1986) (increase in uniform rental cost passed on to employees); and United Technologies Corp., 278 NLRB 306 (1986) (providing a rebate to employee find- ing overcharges in medical bills). The Union counters in reply brief that there is no logi- cal connection between the court's addressed subjects (advertising and promotion, product type and design, and financing arrangements), and the Employer's paid lunch period policy. While the Union acknowledges that the court-enumerated subjects may lead to an individual employee having a job or not, it notes that they have very little direct impact on how the person performs work that day. The Union in that respect, and in con- trast, argues: The abolition of a paid lunch period resulting in employees working an additional 15-minutes per day with no additional compensation is a clear ex- ample of a change that directly and immediately af- fects the employee, there is nothing indirect about it at all. The Union argues secondly that, in effect, the Em- ployer has, in advancing the argument, as much as ad- mitted its decision to change the paid lunch period was a bargainable one under First National Maintenance be- cause it directly affects employees; and the Employer has sought to improperly characterize thereunder another separate defense, namely, whether the change was signifi- cant, as a First National Maintenance issue. The Union argues to the contrary, that this is a new defense, and different from the long-asserted defense that the Employ- er had compelling reasons to act unilaterally. The Union argues that raising this new defense is highly improper at this time, as it comes 10 years too late. I find myself wholly persuaded by the Union's i irst argument that paid lunch is a bargainable subject. The latter argument, how- ever, in my view, has only surface allure. Here part of the Employer's justification of claimed business necessity was Neiner's espousal that he viewed the change in paid lunch period policy would have only minor impact on the affected employees. However, as to the substance of the Employer's contention of minor impact on employees, I simply am otherwise not per- suaded to that view. Rather I conclude and find the matter of the Employer's unilateral change in paid lunch period policy, in clearly and directly affecting (certain) employees' wages and hours, was reasonably and clearly a matter of substantial effect and concern to a significant number of affected employees. Having so concluded, I need not address other union arguments based on the Employer's inconsistent position taken on claimed insig- nificant change, advanced as being further supportive. Before reaching final conclusions it seems only appro- priate to set forth once again what none of the parties have apparently addressed directly in their briefs, viz, the Board's prior stated rationale underlying its Mike O'Connor Chevrolet ruling, as pertaining to its finding that an employer's unilateral change of wages, hours, and other terms and conditions of employment of unit em- ployees constitutes a violation of Section 8(a)(5) and (1) of the Act, absent the required showing of "compelling economic considerations," namely: Such changes have the effect of bypassing, under- cutting, and undermining the union's status as the statutory representative of the employees in the event a certification is issued. To hold otherwise would allow an employer to box the union in on future bargaining positions by implementing changes of policy and practice during the period when objections or determinative challenges to the election are pending. Analysis and Concluding Findings I address the First National Maintenance issues first, as that case's consideration determines fundamentally when an employer has a duty to bargain about a unilateral de- cision at all. The Employer's change in its paid lunch policy did not involve a change in the scope, nature, or direction of its business, nor may the change in issue rea- sonably be construed to have involved any subordinate employer activity heretofore considered by the Board as such. Moreover, it affirmatively appears that the Em- ployer's change in its paid lunch policy directly affected the "wages, hours, and other terms and conditions of em- ployment" of some 35 employees in that it required all affected employees to stay each day an additional one- half hour to complete their regular day's work; and, as well, in that it required that they perform additional work activity for 15 minutes of that period, rather than allowing them, as under the prior established policy, to continue to use 15 minutes of their regular 8-hour day as a paid lunchtime. I agree with the General Counsel and the Union that this was a direct change in the affected employees' wages, hours, and other terms and conditions of employment. In its clear essence, the decision to do so involved a managerial decision that did not "have only an indirect and attenuated impact on the employment re- lationship," but rather was one (I conclude and find) that involved "almost exclusively `an aspect of the relation- ship' between employer and its employees." I further conclude and find this change in paid lunch policy did not fit into the declared categories where management is to be free from the constraints of the bargaining process deemed essential for the running of a profitable business as outlined by the Supreme Court in First National Main- tenance. To the contrary it here acted unilaterally in pre- cise area in which it is not so privileged to act without first notifying the Union of prospective change, and of- fering to bargain with the Union. Here it is also only fair to observe the Employer did not even offer to bargain the matter conditionally, to offset any imperative to act now, that it may have then perceived. Labor costs were the clear considerations. 1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I next address Mike O'Connor Chevrolet considerations. To the extent that Respondent has defense on the basis of certain language in General Electric, 163 NLRB 198 (1967), that it was under no duty to bargain with the Union while it objections to election were pending, and particularly in the light of the Employer's assertion that because of compulsion of anticipated delays in the Union's certification, it was free to act presently, the Employer has essentially advanced at best a disagree- ment, it seems to me, with the Board's basic holding in Mike O'Connor Chevrolet that if an employer elects to act unilaterally in that peirod, absent a showing of "compel- ling economic considerations," it has violated Section 8(a)(5) and (1) of the Act. Respondent's reliance on the General Electric case would appear questionable otherwise. There the Board essentially addressed a problem of remedy for apprecia- ble unfair labor practices committed in the certification year. Moreover, it is clear that there was no underlying allegation of 8(a)(5) violation as to that employer's uni- lateral wage increase granted pending objections and before certification. Id. at 211. The case of Harbor Chev- rolet, 93 NLRB 1326 (1951), cited in support, did not itself appear to involve any question of precertification employer unlawful unilateral action as here, but ad- dressed only a refusal to bargain following certification. Both cases in any event clearly predate the Board hold- ing in Mike O'Connor Chevrolet, supra. Moreover, the Board has since clearly held that an employer's obliga- tion to bargain arises on the date a majority of the appro- priate bargaining unit employees selects the Union as their representative, Gulf States Mfrs., 261 NLRB 852, 863 (1982). In connection with the case cited thereat, Howard Plating Industries, 230 NLRB 178, 179 (1977), see and compare on the issue of employer unilateral action precertification, Clements Wire & Mfg. Co., 257 NLRB 1058, 1064, fn. 7 (1981). The duty to bargain, at least in the sense of a prohibition on unilateral changes, attaches as of the election date, Celotex Corp., 259 NLRB 1186, 1193 (1982); NLRB v. Carbonex Coal Co., 679 F.2d 200, 205 (10th Cir. 1982). Additional claim raised of quandry for an employer has been heretofore concluded to be of little merit where the employer has unilaterally changed existing conditions of employment, NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970). Question arises whether any further defense consider- ation of justifiable "compelling economic considerations" remains for consideration under Mike O'Connor Chevro- let, supra, beyond that covered by the directed applica- tions of First National Maintenance, supra, and Otis Ele- vator, supra. Certainly the Court's opinion, accepted by the Board, governs as the law of this case. However, the Court's opinion and directive does not appear exclusion- ary of any other warranted Mike O'Connor Chevrolet consideration. It is unclear whether Board acceptance of the court's directive in this case is intended to extend beyond this case, e.g., as an engraftment on the definition of its standard of "compelling economic considerations" as earlier declared in Mike O'Connor Chevrolet; and, even if so, whether the standard "compelling economic con- sideration" is to yet import more. In my view it does import more. This is deemed so be- cause it appears the precedential scope of the Mike O'Connor Chevrolet case, continues its defensive protec- tion over subjects that an employer normally has a duty to bargain, but as to which, by Board-provided Mike O'Connor Chevrolet exception, it may act unilaterally, provided it can show its action in such an area was ac- complished because of "compelling economic consider- ation." However, remnant of Board holding in Van Dorn Plastic Machinery Co., 265 NLRB 864, 865 (1982), would appear to continue to guide on Board general view that such circumstances would (seemingly now the more so) be rare. The Employer faced plant difficulties in the instant case that ought not be and are not disguised. E.g., a new manager's review and corrective action, which was ad- dressed to a plant situation involving confusion, disorga- nization, loss of production time, inefficiency in use of personnel, and a greater need for supervision, has been heretofore found by the Board to be convincing business justification for an implementation of more rigid rules with regard to absenteeism and production. Cf. Service Spring Co., 263 NLRB 812, 814 (1982). However, the above finding was made on 8(a)(3) allegation only. Relat- ed 8(a)(5) allegations in that case failed where, unlike here, the necessary element of a failure to consult with the Union was determined not only there not present, but indeed contraindicated. Id. at 821-822. The parties have made contentions as to what "com- pelling economic consideration" means, or should be construed to mean. It appears unlikely the Union's view essentially that an employer must show it is facing "eco- nomic collapse" is to be the limiting reach of the stand- ard if the Mike O'Connor rule is to have independent ap- plication and use. The urged union standard would appear to equate to first National Maintenance, supra, apparent encompassing observation that the Employer may terminate or halt an operation with sole purpose to reduce economic loss, 452 U.S. at 687, or related Board holdings: that an employee has no duty to bargain over a decision essentially changing the scope, nature, or direc- tion of the enterprise, as, e.g., where it acts unilaterally to preserve the business, UOP Inc., 272 NLRB 999, 1000 (1984); or, to eliminate the last vestige of an outmoded and less profitable business operation, Kroger Co., 273 NLRB 462 (1984). However, neither do employees' wages, hours, and other terms and conditions of employ- ment rest so tentatively on a manager's mere exercise of sound business judgment that might lead a manager to a conclusion as to what next must be done, except as is es- tablished as lawful management prerogative under First National Maintenance. To the extent Respondent has broadly advanced argument that a manager must be able to reasonably know what he can do without bargaining, it seems to me that very consideration is what has been already addressed, and resolved in the reach of First Na- tional Maintenance, supra, which has broadly established guidance for what the nonmandatory and mandatory decisional categories are, 452 U.S. at 679. Employer's unilateral action herein has been found not to qualify under either determined nonmandatory bargaining deci- VAN DORN MACHINERY CO. 1245 sional exception as determined by the Supreme Court in First National Maintenance. Under Mike O'Connor Chevrolet, the Employer's uni- lateral action, if to be otherwise justified, must be shown to rest on "compelling economic considerations." This much would appear clear from the above-considered precedents. The Employer's unilateral act must rest on some business circumstances that are discernibly more demanding than calling for mere exercise of sound busi- ness judgment, if the same is to import the essence of an excusing compelled act based on economic consideration. Yet it would appear also fairly to be assessed as encom- passing something less than an imminent business col- lapse, or requiring a demonstrable jeopardy of same. It seems to me it is enough of a standard to otherwise pro- ceed on basis of an ad hoc discernment of whether there is some real and unavoidable economic driving force behind the advanced business details that should excuse an employer's unilateral act. See NLRB v. Katz, 369 U.S. 736, 747-748 (1962). Beyond that 1 need not presently go to address and resolve the instant matter, particularly, as I remain unsure that the Board has heretofore intended that its Mike O'Connor Chevrolet rule is to be applied on other than just such an ad hoc case-by-case approach, cf. Gulf States Mfrs., supra, 261 NLRB at 864; albeit rarely, Van Dorn Plastics Machinery Co., 265 NLRB at 865. Neiner's reasons for changing the paid lunch period policy on 7 October 1977 were (as he relates) essentially but twofold. He made the change, at that time, first, to eliminate long-perceived unnecessary loss of productivity time in certain machine shop support areas by taking cer- tain employees that he viewed were not essential to the Employer's continuous NC machine operation off their existing paid lunch status, thereby increasing their time at the plant to 8-1/2 hours and occasioning a one-half- hour overlap in their shifts, whereby, they could be and were utilized in that overlap period either to address and meet the Employer's pressing labor requirements for eliminating the ongoing ship clutter that had occasioned the recent OSHA citations, or otherwise to increase profit margins by providing 15 minutes of increased pro- duction time each day, at no additional labor cost to the Employer. Secondly, but only to the degree of employees affected by this change, his collateral purpose was to lessen problems (i.e., inspection-two-shift operator problems), but in clear principal part to effect a reduc- tion in foremen and accounting personnel problems in regard to schedules and correct pay determinations. Though the same type problems no doubt continued, and in substantial measure, due to continued effects of rapid growth and considerable employee turnover, there was a reduction in the degree of their occurrence. To extent Neiner has advanced guess, his initial purpose was also to diminish suspected lunch period abuse by some em- ployees, I find such urging much less persuasive. No spe- cifics of actual prior abuses, let alone hard evidence, was offered in support of this contention, nor satisfactory ex- planation offered why any such abuse could not be cured short of change in paid lunch policy. Indeed, in the end, I conclude it to be more of an add-on variety embellish- ment. In any event, I was in this singular matter unim- pressed with Neiner's advancement of it as the initiating or in any sense driving force for the Employer's action. The Employer has urged that Neiner should not be second guessed. If this argument is intended to mean that Neiner's asserted reasons for the unilateral change must be accepted without testimonial evaluation, or without any analysis of the evidentiary support offered for their purported imperative or compelling nature, though being, advanced and urged to defend the Employer's de- termined and otherwise unlawful unilateral change in employees wages, hours, and other terms and conditions of employment, that urging itself must simply be and is rejected. Though significant in one sense, I do not find in any sense dispositive the General Counsel's and Union's sev- eral arguments on the lack of time studies, of various cost-savings evaluation, which in the end amount to but a consideration that there was no qualitative analysis on the specific impact of the change effected in paid lunch period policy that independently indicates the change's impact was on a compelling nature. Essentially, Neiner's ongoing cost analysis of the entire shop, which took into account the effect of all his changes, was a reasonable managerial assessment of the result of all changes effect- ed. However, neither do I find that the Employer's own attempted reliance on Neiner's general cost analysis of the machine shop that took into account his broad changes (made in managerial and personnel assignments, manufacturing operations, including product design by the engineers) effectively carries the day for the Employ- er in establishing that the instant change in paid lunch policy itself was a compelled act. The Employer has relatedly argued on the basis of Neiner's assertions that this change also had to be done, that the change in paid lunch policy as effected on 7 Oc- tober 1977 was absolutely necessary for the continued vi- ability of the business; and further, that the fact is one of many changes effected by Neiner, serves to underscore its own seriousness. I have no doubt the change was not accomplished on a Neiner whim, or that Neiner did not carefully discuss it with Bragg. Nonetheless, it seems to me that the latter argument but begs the question. Specif- ic claim of immediate need, does not rest easy with Neiner's own management of the operation without such change being effected for almost a year, any more than the same, or the delay of addressment does with the Em- ployer's other argument that no reasonable manager con- fronted with the preexisting lunch period policy, with its waste, confusion, inefficiency, and lack of purpose, could say anything else but that it must be changed now. To be sure, Neiner has testified that he never understood why certain employees received paid lunch, but he has made no claim that he always wanted to change it, but was precluded by others; or, had been continuously prevent- ed by other considerations, before 7 October 1977. The argument that the change in paid lunch period policy was a serious or grave matter to Employer's on- going viability because it was one of several changes ef- fected by Neiner also begs the question because all the other managerial changes and assignments made or set in place by Neiner in the first year of his managerial em- 1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployment are not the subject of complaint allegation. Only the change effected in the employee 's paid lunch policy in October is the subject . That an Employer, with a long period of strained profitability brought on by large capital expenditures in recent years and experienc- ing a period of present rapid growth, no doubt, may be expected to have its managers be sensitive to consider- ations affecting continued viability of the business; and to be aware of continuing need for managerial evaluation and fine tuning of operations, is not questioned here. But that, it seems to me, calls for no more than exercise of good or sound business judgment in those circumstances. Moreover, the fact that a number of managerial actions in certain areas are lawful and have been unquestioned does not automatically color as also lawful , another spe- cific employer act accomplished unilaterally under indi- cated unlawful circumstances . There is no argument made, and if intended heretofore to be made , no ade- quate showing established of record to support a conten- tion that the Employer's unilateral change in paid lunch policy, herein found to have directly and adversely af- fected employees' wages, hours, and other terms and conditions of employment, was itself a necessary or indis- pensable ingredient to an effective broader managerial lawful action. The parties have advanced arguments based on the cir- cumstances that only 10 percent of the work force was affected by the change, by the General Counsel and by Union to show the Employer's change was not a com- pelled one, and by the Employer in support of its argu- ment the change had minor or insignificant effect on em- ployees. In my assessment of the claimed compelling or imperative nature of Employer's unilateral action, it seems to me, the fact that the change affected but 10 per- cent of the work force tends to more support the Gener- al Counsel and the Union, than the Employer ; and only the more so where I have also concluded and found that the Employer's related claim that its action had only minor impact on the affected employees is not a pursua- sive one. The number of employees directly affected is no defense. Cf. Peat Mfg. Co., 261 NLRB 240, 242 (1982). Respondent's reliance on permitted employer unilateral action because of "business necessity" in Dilene Answer- ing Service, 257 NLRB 284, 285 fn. 6 (1987), would also appear misplaced. There the Union was consulted by the employer in bargaining and presented with an employer's proposed holiday schedule change. The change was sub- sequently enacted because of business necessity, but in circumstances in which the union had not timely re- sponded in bargaining. Here the Union was afforded no such opportunity. The matter need not be further belabored . I have con- sidered all the Employer's remaining arguments and con- clude they are without merit . There is no duty on the part of a union to demand bargaining on material, sub- stantial, and significant changes while a respondent's ob- jections are pending on appeal before the Board, Hudson Oxygen Therapy Sales Co., 264 NLRB 61, 74 (1982); Peat Mfg. Co. 261 NLRB 240 fn . 2 (1982). The fact the Em- ployer vigorously pursued its objections to election does not call for conclusion other than that reached here. It is accordingly concluded and found that the Em- ployer has not established by clear and convincing evi- dence that it changed its paid lunch period policy be- cause of "compelling economic considerations" within the meaning of the Board's holding in Mike O'Connor Chevrolet, supra. Moreover, Employer has as much as ad- mitted that its anticipation of delay in the resolution of the Union certification issue was a substantial factor in Employer's action being taken at the time it was. I thus further conclude that there appears merit to union obser- vation that the Employer in making its decision to pro- ceed unilaterally at the time, effectively gambled that its objections to election would be subsequently sustained as meritorious, and that resultingly, the earlier indicated majority designation of the Union as exclusive collective- bargaining representative of employees would not be cer- tified, and if certified by the Board, would not be sus- tained by the court on appeal. It is in any event conclud- ed and found that by changing its paid lunch period policy in the manner it did on 7 October 1977, the Em- ployer unilaterally changed the wages, hours, and other terms and conditions of employment of employees in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Van Dom Plastic Machinery Co., Division of Van Dorn Company is an employer within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge 54 of the International Association of Machinists and Aerospace Workers, AFL-CIO is a labor union within the meaning of Section 2(5) of the Act. 3. On 7 October 1977 the Employer unilaterally changed its paid lunch period policy, which directly and adversely affected the wages, hours, and other terms and conditions of employment of employees, without notify- ing and discussing with the Union its decision to do so. 4. The Employer's unilateral act described in para- graph 3, above, involved a decision that did not consti- tute a change in the scope, nature, or direction of its business; and neither was it a decision that had only an "indirect and attenuated impact on the relationship" of the Employer and employees, nor was it a decision made to preserve the business; but it was a decision that in- volved "almost exclusively 'an aspect of the relationship' between employer and employee," which must be bar- gained, within the holding of First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). 5. The Employer has not established by clear and con- vincing evidence that it changed its paid lunch period policy because of "compelling economic considerations" within the holding of the Board in Mike O'Connor Chev- rolet, 209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). 6. By engaging unilaterally in the conduct as described in paragraph 3 above, the Employer has violated Section 8(a)(5) and (1) of the Act. REMEDY Having found Respondent to have violated Section 8(a)(5) and (1) by making the above change in its paid VAN DORN MACHINERY CO. lunch policy unilaterally, it will be recommeded that Re- spondent be ordered to cease and desist from refusing to meet and bargain with the Union with regard to its deci- sion to change its paid lunch policy. The Board will nor- mally remedially order a return to status quo ante. The Employer has made general reference to certain changes in circumstances that may have affected the identity and number of employees affected by the change. The Board has previously provided, and the Court heretofore en- forced an Order that the Employer bargain with the Union concerning the effects of its above change in paid lunch policy. Under these circumstances it will be rec- ommended to the Board that the Board now additionally order that Respondent Employer, on request of the Union, immediately rescind its paid lunch policy as the same existed after the Employer had unilaterally changed its policy on 7 October 1977, and the Employer forth- with restore its paid lunch policy as declared and applied theretofore since 19 April 1976. It will be further recommended that Respondent Em- ployer be ordered to make all affected employees whole for monetary loss of the 15-minute paid lunch I find they suffered as a result of the above unlawful unilateral change, for the period from 7 October 1977, until such date as Respondent bargains in good faith with the Union thereon to agreement, or to impasse, or there is a failure on the part of the Union to commence bargaining within 5 days of the Employer's request. to do so, or there is a failure on the part of the Union to bargain in good faith. Monetary amounts due individuals heretofore negotiat- ed and agreed to in effects bargaining (if any) may be raised, where appropriate, as an offset to total make- whole amount due an individual, respectively, as may be determined in the compliance stage. Any change in iden- tity of employee's affected by the change in paid lunch policy found unlawfully may be addressed by all parties in compliance. Interest on the amount lost shall be com- puted in the manner now prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I also fmd it neces- sary to provide for posting of an appropriate additional notice to employees. On the foregoing findings of fact and conclusions of law, and the entire record in this matter, and pursuant to Section 10(c) of the Act, I issue the folllowing recom- mended' ORDER The Respondent, Van Dorn Plastic Machinery Co., Division of Van Dorn Company, Strongsville, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to meet and bargain with District Lodge 54 of the International Association of Machinists and Aerospace Workers, AFL-CIO with regard to a decision to change its paid lunch policy for employees. i If no exceptions are filed as provided by 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 deemed waived for all pur- poses. 1247 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request of the Union, immediately rescind its paid lunch policy for employees as the same existed after Respondent Employer unilaterally changed its policy on 7 October 1977, and forthwith restore its written paid lunch policy as previously declared and applied since 19 April 1976. (b) Make whole all affected employees, in accordance with the remedy section, for any monetary loss they suf- fered as a result of the above unilateral change in the 15- minute paid lunch period. (c) Post at Strongsville, Ohio plant copies of the at- tached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized rep- resentative, shall be posted by the Respondent immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2 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." 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to meet and bargain with District Lodge 54 of the International Association of Machinist and Aerospace Workers, AFL-CIO with regard to a de- cision to change our paid lunch policy for employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL on request of District Lodge 54 of the Inter- national Association Machinist and Aerospace Workers, AFL-CIO immediately rescind our paid lunch policy change of 7 October 1977 and forthwith restore out paid lunch policy as declared and applied theretofore since 19 April 1976. 1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL make whole all affected employees for any monetary loss they suffered as a result of our unilateral change in the 15-minute paid lunch policy. VAN DORN PLASTIC MACHINERY CO., DIVISION OF VAN DORN COMPANY