Gulf States Manufacturers, Inc.

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gulf States Manufacturers, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers. Case 26- CA-9485 11 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 28 March 1984 Administrative Law Judge Robert A. Gritta issued the attached decision. The Respondent filed exceptions and a brief in support of the exception and certain parts of the judge's de- cision. The General Counsel filed exceptions, a supporting brief, and an answering brief to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order. We agree with the judge that the Respondent violated Section 8(a)(5) by refusing to provide wage and benefit information concerning supervi- sors who were performing unit work. We also agree with the judge that the Respondent did not engage in surface bargaining in 1981 in violation of Section 8(a)(5). We disagree with the judge, how- ever, that the Respondent violated Section 8(a)(5) by withdrawing recognition from the Union and thereafter unilaterally instituting wage increases, changes in insurance benefits, working hours, and employee layoffs. The parties began negotiations in October 1980 and bargained until the Respondent withdrew rec- ognition on 13 November 1981, after 92 of about 120 employees in the unit signed a petition stating they no longer wanted to be represented by the Union. The judge found, however, that the Re- spondent's withdrawal of recognition occurred within a context of unremedied unfair labor prac- tices, which contributed to the Union's loss of ma- jority support. Thus, the judge found that the Re- spondent could not lawfully withdraw recognition until after the outstanding unfair labor practices I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings were remedied and the Respondent refrained from committing unfair labor practices. The unfair labor practices on which the judge relied in finding the Respondent's withdrawal to be violative, were the Respondent's refusal to provide relevant information in negotiation in 1981, the Re- spondent's denial of an employee's request for union representation at a disciplinary meeting in February 1980, and the implementation of layoffs by the Respondent in March and April 1980 with- out providing sufficient notice to the Union and af- fording it an opportunity to bargain.2 The Fifth Circuit affirmed the Board's unfair labor practice findings, but rejected the Board's make-whole backpay remedy for the laid-off employees and re- manded that issue for a determination whether bar- gaining would have affected the Respondent's deci- sion to implement the layoffs.3 The Board accepted the remand and found that the layoffs resulted from economic factors outside the Respondent's control.4 Accordingly, the Board concluded that bargaining would neither have changed nor de- layed the Respondent's layoff decisions and a back- pay remedy was unwarranted. An employer is not privileged to question an in- cumbent union's majority status if the employer's doubt arises in a context of unlawful conduct de- signed to cause employee disaffection with their bargaining representative or to gain time to under- mine it. Johns-Manville Sales, 282 NLRB 182 (1986). We are not persuaded, however, that the Respondent's unfair labor practices were so de- signed or had any appreciable impact on employ- ees' rejection of the Union. The 1980 unfair labor practices occurred well before the parties com- menced bargaining and over a year and a half before the employees presented the Respondent with the petition stating that they no longer sup- ported the Union. The refusal to allow union repre- sentation was a violation that affected only one em- ployee; the layoffs were effected because of com- pelling business considerations that bargaining would not have changed. Given the character and timing of the 1980 unfair labor practices, we cannot agree that the 1980 conduct caused employee disaf- fection with the Union over a year and a half later. Nor do we believe that the Respondent's refusal to provide information contributed to employee disaf- fection with the Union, especially as the record fails to indicate that the Respondent's position was disseminated to them. 2 Gulf States Mfrs, 261 NLRB 852 (1982) Gulf States Mfrs v NLRB, 704 F 2d 1390 (1983), rehearing denied 715 F 2d 1020 (1983) " Gulf States Mfrs, 271 NLRB 772 (1984) 287 NLRB No. 4 GULF STATES MFRS 27 We find no causal nexus between the 1980 and 1981 unfair labor practices and the employees' overwhelming dissatisfaction with the Union. This conclusion is buttressed by our adoption of the judge's finding that the Respondent did not engage in negotiating tactics calculated to frustrate the bar- gaining process.5 Accordingly, we conclude that the Respondent was entitled to rely on the employ- ees' petition as evidence establishing a reasonable doubt that the Union had lost majority support, Johns-Manville Sales, supra. Because we find that the Respondent's withdrawal of recognition was not unlawful, we also dismiss the allegations that the Respondent violated Section 8(a)(5) by unilater- ally implementing postwithdrawal unilateral changes. ORDERS The National Labor Relations Board orders that the Respondent, Gulf States Manufacturers, Inc., Starkville, Mississippi, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to provide any valid exclusive bar- gaining representative with wage and benefit infor- mation concerning supervisors who perform bar- gaining unit work. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act.. (a) Post at its facility in Starkville, Mississippi, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 26, after being signed by the Respondent's authorized representative, 5 We disagree with our dissenting colleague that the Respondent en- gaged in dilatory bargaining tactics by insisting on infrequent bargaining sessions The judge found that negotiations were sometimes slowed be- cause of mutual disorganization at the bargaining table and mutual con- flicts in scheduling He correctly attributed the lesultmg confusion and delays to both parties Although the Respondent was ai times unable to comply with the Union's requests for meeting dates, the judge observed that the parties accommodated and cooperated with one another over the course of bargaining, and that the scheduling difficulties were neither preconceived nor intentional We concur with the judge's assessment, which is fully supported by his detailed factual analysis 6 Member Ciacraft, though agreeing with the judge that the Respond- ent violated Scc 8(a)(5) by refusing to provide information regarding su- pervisors performing unit work, finds it inappropriate to include disclo- sure and bargaining language in the Board's Order and notice because the Union no longer represents the Respondent's employees Chairman Dotson would not find the Respondent's refusal to provide information violative, and therefore agrees with Member Cracraft that disclosure and bargaining language is inappropriate 7 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 " shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER JOHANSEN, dissenting in part. I agree with Member Cracraft that the Respond- ent violated Section 8(a)(5) by refusing to provide the Union with wage and benefit information con- cerning supervisors performing unit work. Unlike my colleagues, however, I find that the Respond- ent additionally violated Section 8(a)(5) by engag- ing in dilatory bargaining tactics. Consequently, I agree with the judge that the Respondent further violated Section 8(a)(5) by withdrawing recogni- tion from the Union on 13 November 1981 and thereafter unilaterally instituting wage increases, changes in insurance benefits, working hours, and employee layoffs.' Following the Union's August, September, and October 1980 bargaining requests, the Respondent finally agreed to commence negotiations on 24 Oc- tober 1980. Between 24 October 1980 and 11 No- vember 1981,2 the parties held only 12 bargaining sessions and 1 informal discussion. During the initial bargaining session, the Union unsuccessfully sought to schedule another negotiat- ing meeting. The parties subsequently met on 2 De- cember 1980 at which time Union Negotiator Orman asked Wise, the Respondent's bargaining representative, to meet daily for a week. Wise stated that he was unavailable until January and that he would contact Orman at that time. Wise did not contact Orman. Orman telephoned Wise twice in late January and Wise finally agreed to meet on 3 February. Wise's associate, Jacqua, how- ever, attended the 3 February session instead and rejected Orman's request for bargaining on consec- utive days or for an entire week. On 6 February Orman called Wise and requested a bargaining ses- sion. Although Wise told Orman he would tele- phone him the following week, Wise failed to do SO. In late February and early March Jacqua and Orman exchanged correspondence resulting in an agreement to meet on 19 March. During the 19 I Accordingly, I would also find, contrary to my colleagues, that the Order and notice should include language requiring the Respondent to bargain with the Union and disclose the requested information 2 All dates are in 1981 unless otherwise indicated 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD March session, Orman again pressed Jacqua for consecutive meeting dates. Jacqua claimed that he could not meet for a week at a time and that he was unavailable until early April. When Orman asked whether Wise or another attorney was avail- able, Jacqua rejected the request. After Orman and Jacqua met three times in April, Wise replaced Jacqua for a 21 May negotiating meeting. At the end of that meeting, Orman requested meetings on consecutive days the following week. Wise re- sponded that he could not meet the following week and, when pressed for an explanation, refused to explain his unavailability. The parties subsequently met on 3 June and 21 July. At the latter session Orman unsuccessfully sought bargaining the following week. After Orman telephoned Wise twice in August about bar- gaining, Wise ultimately agreed to meet on 12 August. At the 12 August meeting, Orman again asked Wise to meet the following week. Wise re- fused. After Orman called Wise twice in September, Wise agreed to meet on 11 September. On 11 Sep- tember Wise told Orman that he was unavailable to negotiate the following week and suggested that they contact each other later to schedule another date. When Orman contacted Wise, Wise asked him to meet on 28 September at Wise's Memphis office. Orman traveled to Memphis where, accord- ing to credited testimony, Wise informed him that it appeared that the Union had lost employee sup- port, and that Orman should consider walking away from negotiations and concluding his rela- tionship with the Respondent. On 1 October Orman telephoned Wise. Wise promised to call him on 6 October, but did not. On 9 October Wise wrote Orman that he was leaving for vacation the following day but that he would arrange for bargaining on his return. On 4 Novem- ber Orman called Wise. Although the parties reached an agreement to meet on 10 or 11 Novem- ber, Wise was not available when Orman arrived on 11 November. There were no additional meet- ings. The Respondent withdrew recognition in a 13 November letter. The foregoing evidence establishes that the Re- spondent engaged in delaying tactics calculated to thwart negotiations dating from the Union's initial August 1980 bargaining request. Over the succeed- ing 15 months, the Respondent met with the Union only 13 times, notwithstanding the Union's repeat- ed and persistent efforts to schedule more frequent bargaining sessions. The Respondent's insistence on infrequent bargaining sessions," particularly when a I reject the judge's conclusion that the record fails to establish the Respondent's unreasonableness in meeting with the Union coupled with its refusal to provide information rel- evant to negotiations, constitutes a refusal to meet at reasonable times and evidences a design to avoid consummating an agreement with the Union. Rhodes St. Clair Buick, 242 NLRB 1320, 1323 (1979).4 Accordingly, I find that the Respondent's refusal to meet at reasonable times to bargain with the Union violated Section 8(a)(5) of the Act. Having concluded that the Respondent violated Section 8(a)(5) by refusing to provide the Union with relevant, requested wage information, and having further determined that the Respondent en- gaged in dilatory bargaining tactics calculated to thwart the bargaining process, it necessarily fol- lows that the Respondent was not at liberty to withdraw recognition from the Union. Consequent- ly, consistent with the judge's determination, I find that the Respondent's 13 November withdrawal of recognition and subsequent unilateral changes addi- tionally violated Section 8(a)(5).5 4 Wise's 28 September remarks to Orman suggesting that the Union terminate the bargaining relationship further illuminate the Respondent's objective of evading its bargaining obligation s Having found the Respondent's withdrawal of recognition unlawful on this basis, I found it unnecessary to pass on the judge's finding that the withdrawal was unlawful because of the Respondent's previous, un- remedied unfair labor practices APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to provide any valid exclu- sive bargaining representative with wage and bene- fit information concerning supervisors who per- form bargaining unit work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. GULF STATES MANUFACTURERS, INC. James Fuller, Esq, for the General Counsel. James F. Smith, Esq. and Scott P. Watson, Esq. (Con- stangy, Brooks & Smith), of Atlanta, Georgia, for the Respondent. Curtis Orman, of West Point, Mississippi, for the Charg- ing Party GULF STATES MFRS 29 DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. This case was tried before me on May 17 through 19 , 1983, in Starkville and Aberdeen , Mississippi, based on a charge filed by International Brotherhood of Boilermakers, Iron Shipbuilders . Blacksmiths , Forgers and Helpers (the Union), on December 17, 1981, and a complaint issued by the Regional Director for Region 26 on December 29, 1982, and was amended on March 2, 1983 The com- plaint alleged that Gulf States Manufacturers, Inc. (Re- spondent), violated Section 8(a)(1) and (5) of the Act by bargaining in bad faith including making unilateral changes in working conditions and unlawfully withdraw- ing recognition from the Union Respondent 's timely answer denied the commission of any unfair labor prac- tices. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence, and to argue orally. Briefs were submitted by the General Counsel and Respondent . Both briefs were con- sidered. On the entire record' in this case and from my obser- vation of the witnesses and their demeanor on the wit- ness stand, and on substantive, reliable evidence consid- ered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT 1. JURISDICTION AND STATUS OF LABOR ORGANIZATION PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Gulf States Manufacturers , Inc. is a corporation en- gaged in the manufacture of pre-engineered steel build- ings in Starkville, Mississippi. Jurisdiction is not an issue. Gulf States Manufacturers , Inc., in the past 12 months in the course and conduct of its business operations, pur- chased and received at its Starkville facility goods and materials valued in excess of $50,000 directly from points outside the State of Mississippi and shipped products valued in excess of $50,000 from its Starkville , Mississip- pi facility, to points located outside the State of Missis- sippi . I conclude and find that Gulf States Manufactur- ers, Inc is an employer engages. in commerce and in op- erations affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the Union is, a labor organization within the meaning of Section 2(5) of the Act. II BACKGROUND On November 11, 1975, the Union was certified by the Board as the exclusive bargaining representative of the employees in an appropriate unit. Pursuant to charges filed by the Union in early 1976, a decision by Judge Miller issued February 24, 1977 The Board adopted I Respondent's unopposed motion to correct the transcript, being within correctible limits, is granted and is received into the record as R Exh 30 Judge Miller's decision on June 28, 1977, at 230 NLRB 558 The Fifth Circuit Court of Appeals, by opinion dated September 15, 1978, granted enforcement in part and denied enforcement in part 579 F.2d 1298 The Board petitioned the court for rehearing , en banc, whereupon, the court on July 10, 1979, affirmed enforce- ment in part, denied enforcement in part, at and remand- ed the case to the Board for further consideration of an alleged 8(a)(1) statement , at 598 F.2d 896 (1979) The Board accepted the remand and issued a Supplemental Decision and Order on October 26, 1979, accepting the court's findings and conclusions as the law of the case and dismissing the complaint section dealing with the al- leged 8(a)(1) statement that was the subject of the remand, at 246 NLRB 289 (1979) The Union filed addi- tional charges on April 1, 1980, which resulted in a deci- sion by Judge Cates on January 30, 1981 The Board, with modification (assessing a backpay remedy for un- lawful layoffs), adopted Judge Cates' decision on May 13, 1982, at 261 NLRB 852. The U.S Court of Appeals, Fifth Circuit, granted enforcement in part, denied en- forcement in part (the backpay remedy for the layoffs), and remanded the case to the Board for further findings on whether bargaining would have resulted in any change in the number of timing of the layoffs, or wheth- er the company's economic situation would have re- quired the layoffs in any event, and May 19, 1983, at 704 F.2d 1390. Respondent petitioned the court for rehear- ing, en banc, contending that the court's remand invites the Board to grant a backpay award based on an assump- tion about the outcome of bargaining in violation of prin- ciples announced by the Supreme Court in H. K. Porter Co. v. NLRB, 397 U S. 99 (1970). The circuit court issued a clarifying opinion on September 30, 1983, stating (114 LRRM 2727): The Petitioner misconstrues our opinion . Our order that the Board "determine whether and by how much bargaining would have delayed the layoffs," was not directed at whether the results of bargain- ing would have affected the layoffs, but rather whether the fact of bargaining would have affected the layoffs . In its original opinion, the board stated that it was ordering back pay because "the employ- ees laid off clearly would have been employed until completion of the bargaining " We remanded the case to the board merely to determine whether, in light of the evidence concerning the employer's economic condition, the layoffs would have been delayed during the bargaining period and, if so, by how much Our order in no way intimates that the Board should consider whether the parties would have come to some agreement concerning the layoffs. Such an order, as Petitioner correctly points out in its petition for rehearing, would violate the prohibi- tion against imposing contract terms upon either employers or unions . "[T]he Board cannot fashion remedies on the basis of an assumption as to what the parties would have agreed to absent an employ- er's failure to bargain in good faith " Winn-Dixie, k 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 567 F.2d at 1351. See also H. K. Porter Co v. NLRB, supra (the Board is without power to compel a company or a union to agree to any sub- stantive contractual provisions of a collective-bar- gaining agreement). A "make-whole" remedy of this nature may only be ordered upon a finding that the employer has clearly and flagrantly violated its duty to bargain. International Union of Electrical Radio and Machine Workers, AFL-CIO v. NLRB (Tiidee Products), 426 F 2d 1243 (D C. Cir. 1970); United Steel Workers of America v. NLRB (Metco, Inc.), 496 F.2d 1342 (5th Cir. 1970) (dictum). Such a remedy would not be warranted on the findings of this case and our order contemplates no such remedy The parties stipulated to the following material facts: Respondent gave its employees a 15-percent wage in- crease on November 23, 1981; Respondent laid off 15 employees on July 22, 1982; Respondent laid off 13 em- ployees on October 20, 1982; no layoffs accrued in De- cember 1981, May 1982, or August 1982; on April 1, 1982, Respondent offered a "dread diseases" option cov- erage to employees to supplement their existing hospitali- zation at a cost to employees of $1.85 per week; the ex- isting hospitalization payment plan was not changed by Respondent; Respondent on November 28, 1982, gave employees a 5.5-percent wage increase, during 1982 the plant closed for a week at a time on seven occasions and for a week in March 1983, during 1982 and 1983, many employees worked less than 40 hours per week or 5 days per week but most employees worked at least 8 hours per day during all weeks with some employees working 10-hour days. Additionally, on February 12, 1981, the Union filed a charge alleging a refusal to bargain, in that, the parties met on three occasions up to February 3, 1981 The Re- gional Director of Region 26 dismissed the charge after a field investigation. The Union's appeal to the General Counsel in Washington, D.C., was denied and the Re- gion's action was sustained With this background, the instant case was litigated on the issue of bad-faith bargaining emanating from allega- tions of- surface bargaining, unilateral changes in work- ing conditions, refusal to supply requested information necessary to bargaining, and ultimately the withdrawal of recognition from the Union. Pertinent portions of witnesses' testimony are detailed below. III RESERVED RULINGS ON TRIAL MOTIONS At the outset, Respondent moved to dismiss para- graphs 16 and 18 from the amended complaint. Respond- ent's counsel contended that the allegation of paragraph 16 was previously litigated resulting in findings of fact and law and that the court's judgment was accepted by the Board. Thus, the "Law of the case" precludes subse- quent litigation of the same matter Counsel points par- ticularly to the court's conclusion that the proposal that grievances not be investigated on company property is not a proper basis on which to base a finding of bad-faith bargaining That is, the substance of a proposal is not subject to Board interpretation or evaluation in terms of good or bad negotiation fodder Such appraisals are left to the parties facing each other at the bargaining table. The allegation contained in paragraph 16 of the General Counsel's complaint is not clearly so repetitious. The proposal is identical but in the instant case the General Counsel alleges that Respondent insisted to impasse on a nonmandatory subject of bargaining when the parties re- newed their bargaining after the court's prior judgment. On the surface it would appear that the proposal was properly reinjected into the case by the parties' current negotiations. However, the development of the evidence shows clearly that the General Counsel is once again at- tacking the substantive terms of the proposal as evincing Respondent's bad-faith bargaining because no self-re- specting union could accept such a proposal The Gener- al Counsel rationalizes that, notwithstanding the court's prior judgment, he can now label the proposal as a "per- missive or non-mandatory subject" of bargaining and deny application of the judicial precedent, "Law of the case " Additionally, the General Counsel shores up his allegation by enlisting a new factor, "insistence to im- passe." It was partially the language of the allegation in paragraph 16 that caused me concern when Respondent first advanced the motion On its face, the allegation seemed to be a justifiable issue that the General Counsel was free to develop by record testimony After viewing all the evidence, I think it is not. The General Counsel has simply engaged in an exercise of semantics in draft- ing his allegations apparently to circumvent application of the court's prior judgment The evidence presented in support of the allegation has shown neither an insistence to impasse by Respondent nor that such a proposal is clearly only a permissive subject of bargaining. Bargain- ing subjects are labeled mandatory or nonmandatory by case law not statutory definition The General Counsel's reliance on Latrobe Steel Co., 244 NLRB 528 (1979), for the "permissive subject of bargaining" label for the cur- rent representation proposal is misplaced much the same as his mischaracterization that the company's attempt (in Latrobe) to have the union waive its right to represent employees (in grievance) was a nonmandatory bargaining subject In both, the General Counsel was supporting his reasoning that nonmandatory subjects cannot be made condition precedents to reaching agreement or to put it another way, cannot be insisted on to the point of im- passe Judge Barban's analysis, including the holding in the cited case Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir 1963), simply states that albeit employees by statute have the right to adjust their individual grievances, the employer cannot insist on such a term during negotia- tions to the point of impasse and for two basic reasons. One, individual filing of grievances, though allowed by statute, are not within the term "wages, hours and other conditions of employment", and two, the right of the union to represent the employees in the unit is a statuto- ry right that the employer cannot insist to the point of impasse that the union waive. In my view, this is not to be read as labeling, any qualification on a grievance pro- cedure during negotiations, a permissive subject of bar- gaining. Moreover, the component parts of a mandatory GULF STATES MFRS. subject of bargaining are not, taken alone, only permis- sive subjects of bargaining. Therefore, the General Coun- sel's theoretical foundation for its allegation in paragraph 16 is flawed . Further, the General Counsel argues that Respondent proposed restriction on grievance investiga- tion will severely hamper the union in fulfilling its repre- sentative functions and, for this reason, should be deemed to be a "permissive subject of bargaining." If such hinderance were the standard , it would appear to me that the result would be "mandatory" rather than "permissive." What is left of the General Counsel 's alle- gation is the substance of the proposal to support -his general allegation of bad-faith bargaining. Because that circumstance is squarely within the court's prior judg- ment, I grant Respondent's motion and shall dismiss paragraph 16 of the General Counsel 's complaint. Respondent's second motion sought dismissal of para- graph 18 of the General Counsel's amended complaint as it relates to layoffs, based on the scope of the charge and the chronology involved in the Region 's investigation and untimely issuance of its original complaint . Respond- ent further complains that the amendment came at such a late point in time that it should not be allowed. The broad investigatory power of the Board, through its Office of the General Counsel, is hardly subject to attack. Suffice it to say that once a controversy is initiat- ed by a charge, the General Counsel or the Board may allege whatever it finds to be a part of that controversy. Here, the Union charged the Respondent with bad-faith bargaining and unilaterally changing wages and other benefits of bargaining unit employees . Neither the impre- cise language of a charge nor the precise particulariza- tions of a charge are the measures of the Board's inquiry in its formal proceedings. As Respondent states in its motion, "the allegations in the Complaint must be closely related to the violations named in the charge." In my view, the allegations in the amended complaint satisfy that "close relation" requirement. Albeit the better pro- cedure would be to complete the investigation before an original complaint issues, the General Counsel cannot be precluded from amending the complaint to include viola- tions within the statutory period, absent prejudice to Re- spondent and the presentation of its defense.2 Here, no such prejudice was claimed nor did it evolve from the proceedings. Moreover, this is the third in a series of al- leged bad-faith bargaining cases arising between these parties and both the Board and the court have found the incidents of layoffs without notice to or consultation with the Union, to be unfair labor practices requiring remedy. Such prior circumstance , rather than precluding amendment in a subsequent proceeding, requires inclu- sion to adequately protect and enforce the public rights of employees and their representatives .3 I shall, there- fore, deny Respondent's motion to dismiss paragraph 18 of the amended complaint. 8 The reason or reasons for this procedural oversight completely escape me and dictate the necessity for closer scrutiny of investigatory facts prior to issuance of a formal complaint by the General Counsel 3 Both parties to this cause presented an exhaustive array of back- ground facts that can hardly be ignored. IV. THE ALLEGED UNFAIR LABOR PRACTICES 31 Curtis Orman, the Union's representative, testified that he has represented the employees at Respondent pursu- ant to two Board certifications-one in 1975 and one in 1980.4 Orman initiated current bargaining in August 1980 by requesting employee information and dates for the parties to meet. Orman received a reply during August from Zepplin, director of employee relations , stating that the Union's request was forwarded to Respondent's at- torney. Attorney Edward Wise on September 8 respond- ed to the Union's request with various information. Orman called Wise on September 23 alerting him to errors and omissions in the submitted information. On September 29 Wise sent corrections to Orman. Orman telephones Wise October 7 and 14 to set a meeting date but without success . Wise responded by letter October 20 and the first negotiating meeting was set for October 24. Orman told Wise that in the future he would like at least a week's notice of meeting dates so -he could sched- ule himself better . Orman stated that he could meet at most any time with sufficient notice . At the meeting, Wise informed Orman that there were boxes of materials from past negotiations that he had not completely gone through. 5 Orman asked if the previously agreed-to pro- posals stood. Wise said he did not want to start all over again so Orman said he would get together all the pro- posals that had been on the table in one package and present it to Wise. Orman would also identify proposals previously agreed to. Wise would reciprocate by collect- ing in a single package all the company proposals that were left on the table from prior negotiations. Orman asked for another meeting date and Wise suggested that each digest the material after receipt , then get in contact for a meeting date. Orman sent the union proposals to Wise on October 27 with notations of prior agreement on most that he could ascertain at the time . Some proposals assembled by Orman were union proposals and some were company proposals from 1975 , 1976, and 1977. Neither Orman nor Wise could be definite about prior agreed -to clauses at this time. Orman stated that his notes showed prior agreement on preamble, recognition, purpose and scope, reporting and call-in pay, and funeral leave without regard to the party of origin for such clauses. Orman and Wise next met at the ULP trial held No- vember 5 and 6. Both were prospective witnesses and while spectating conversed about Orman 's proposal package and what Wise was preparing for mailing to the Union. Wise, by letter of November 12, acknowledged the Union's mailing and suggested a negotiating meeting the following week. Orman could not meet the following week and communicated that fact to Wise . On Novem- ber 19 Wise wrote Orman suggesting December 2 as a meeting date. The parties did meet on December 2. The parties discussed the clauses previously agreed to and Orman had since found the old funeral leave clause and 4'The General Counsel offered background evidence outside the limita- tions period of Sec. 10(b) to shed light on the negotiations that took place thereafter. 5 Respondent retained a different law firm to represent it in negotia- tions beginning in 1980. 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD presented it to Wise The parties reached agreement on purpose and scope, hours of work, bulletin boards, and preamble Orman suggested that Wise compile a com- plete proposal package to present to the Union and Wise agreed to do so. Orman inquired about the next meeting date and Wise responded that he could not meet until the first of the following month. Wise said he would contact Orman about an exact date. Wise then informed Orman that the plant was low on work and was planning to shut down 2 days for Christmas and 2 days for New Years. Orman had no objection to the shutdown. Wise then sug- gested that because the employees had not received a pay raise in over a year that they get one now. Wise proposed 12 percent across the board. The union team caucused and responded that if no strings were attached to the raise, they would have no objection. Wise stated that no strings were attached so the parties agreed that the wage could be implemented on Monday next. Prior to parting, Orman suggested to Wise that any employees on layoff status be placed on a preferential hiring list and Wise said he was not opposed and told Orman to pre- pare it. On that Monday next, Orman called Wise to discuss truckdrivers receiving more than a 12-percent increase due to the manner in which the Company calculated the mileage allowance. Orman stated to Wise that he did not want the drivers to get in excess of 12 percent, without regard for the method of computation. January 20, 1981, Orman called Wise inquiring about the company's proposals and the next meeting date. Wise responded that he would call Orman the next day or the day after Orman did not receive a call by January 23, so he called Wise but was unable to reach him. On January 26 Wise returned Orman's call suggesting February 3 for the meeting that Orman agreed to The parties met February 3 but Attorney David Jacqua replaced Wise. Orman asked Jacqua for the com- pany proposals and Jacqua said he was not prepared to give any proposals. Jacqua then asked Orman to show him the union proposals because he did not have any ma- terial from Wise After viewing the union proposals, the parties agreed to the recognition clause, but Jacqua was not familiar with the funeral pay clause and could not agree to it without checking further. Orman asked about Wise and learned he was tied up on a case in Florida. Orman demanded proposals from the Company and Jacqua submitted a management-rights clause. Orman said he did not want to discuss one proposal at a time but, rather, wanted a complete contract proposal. Orman stated to Jacqua that they could never reach a contract taking proposals one at a time. Sometime before lunch, Jacqua submitted an arbitration and grievance procedure, strikes and lockouts, management-rights, jury service, bulletin boards, reporting and call-in pay, purpose and scope of the agreement, recognition, and preamble. Orman noted on the company proposal which of the clauses the parties had agreed on, i.e., bulletin boards, re- porting and call-in pay, purpose and scope, recognition, and preamble Orman again demanded an entire contract proposal and a range of meeting dates including the next day or a whole week. Jacqua said he could not meet the next day or next week or for a whole week but he would check his office schedule during lunch and offer some dates to meet. Orman also requested an updated seniority list of employees. After lunch, Jacqua gave Orman the updated seniority list as requested and said to call Wise for subsequent meeting dates. Orman demanded a com- plete contract proposal again and Jacqua caucused with Zeppelin After the caucus, Jacqua presented what he termed "working papers" and told Orman they would in- clude the prior submission. The "working papers" were composed of 23 contract clauses. The parties began dis- cussing the clauses as proposals, albeit when Orman re- ferred to them as proposals, Jacqua corrected him stating they were working papers Before the meeting ended, Orman alerted Jacqua to the omission from the working papers of clauses dealing with checkoff and the Christ- mas bonus, Orman also recounted his discussion with Wise about laid-off employees being placed on a prefer- ential hiring list and suggesting that it become a proposal to add to the Company's working papers The parties ended the meeting. February 6 Orman called Wise and said he was ready to meet again . Wise said he would contact Orman the first of the next week. Wise did not make contact as promised and Orman filed charges with the Board on February 12 Jacqua sent Orman a letter dated February 18 that recapped the February 3 meeting and suggesting that Orman advise of any other prior agreements or par- tial agreements to previously proposed clauses and seek- ing meeting dates from Orman. Orman responded by letter on February 23 giving a range of dates in March and requesting a counterproposal from the Company if the parties could not agree to any clause under discus- sion. Orman also suggested spending no more time on as- certaining prior agreements by simply starting over on all remaining clauses. On March 4 Jacqua wrote Orman accepting March 12 or 25 as the next meeting date. The parties by phone agreed to meet on March 19. The March 19 meeting began with Orman trying to get a date agreed on for the next meeting. Orman wanted to meet the following week but Jacqua was not available that week. By the afternoon, Jacqua contacted his office and told Orman that April 3, 4, 5, and 6 looked good. Orman wanted a commitment rather than just looking good. Jacqua said he planned on being present and with that the parties agreed. The parties discussed funeral leave and leave of absence, but could not agree Orman, at this time, disclosed a copy of proposals from his records that showed a prior agreement on funeral leave and leave of absence. Jacqua accepted the agree- ment on funeral leave with the "day before or the day after," language proposed in prior negotiations They could not agree on leave of absence. Orman asked for counterproposals on some clauses and Jacqua referred to the "working papers" as proposals on selective clauses, such as seniority Although discussed, agreement was not reached. Before ending the meeting, Orman asked Jacqua if, since he could not meet the following week, another attorney could meet for the Respondent. Jacqua replied that Wise could not meet and sometime in the future an- other attorney might meet with them when he or Wise GULF STATES MFRS could not meet The meeting ended with the parties agreeing to meet again on April 2 or 3. The April 2 meeting began with Orman asking for counterproposals on checkoff, layoff procedures, and agreeing to 120-day probationary period if Jacqua would agree to a 2-year retention of seniority when on layoff. The parties agreed to a seniority roster every 6 months as proposed by Respondent. Orman then showed Jacqua a list of proposals from 1977 that had been retyped by the Respondent at that time because the parties had reached agreement on each . Jacqua asked if the Compa- ny could have a copy and Orman agreed that Thompson, president of the local, would give Zeppelin the list for copying during the week. The following day the parties met and Orman asked for an employee pension book and the information Jacqua had checked on concerning the counterproposals. Jacqua stated that the "working papers" contained the Company's seniority proposal. There were questions raised by Orman about certain sections of the seniority proposal. He stated that several of the sections from the 1977 proposal were not in the current proposal and sev- eral sections in the current proposal were not proposed in 1977 The parties then discussed in depth the griev- ance and arbitration proposal submitted by Jacqua during the meeting . Jacqua also submitted checkoff, representa- tion, jury service, and safety and health proposals and, after discussions ceased, the parties focused on future meeting dates. Jacqua proposed April 20 and 30 and Orman agreed to both. At the April 20 meeting, the parities discussed the rep- resentation article previously submitted . The exchange centered on the language disallowing grievance investi- gation or handbilling during the normal workday of either the grievant or his representative without prior agreement from Respondent. A further proscription denied any investigations on the plantsite without prior agreement from Respondent . Orman objected to the plantsite proscription but Jacqua said the language did not prevent employees from talking about grievances in the breakroom, before and after work, and in the parking lot. Orman insisted that the language be changed because he did not think the proposal would allow what Jacqua stated. The parties did not reach agreement on any lan- guage change . Orman requested information on supervi- sors doing bargaining unit work including their wage and benefit data. At some point during the meeting, Jacqua gave Orman the pension book requested but stated that the book was no longer in effect Jacqua also presented a proposal on insurance and pension plan. It was the Company's 1977 proposal with additional lan- guage dealing with employees whose earnings exceed $7500 annually. Orman noted in the meeting that the pension book supplied at the previous meeting contained maximum earnings of $7500 for coverage of insurance for otherwise eligible employees. Zeppelin explained that the Company had straightened out the earnings matter with the insurance carrier and a new certificate issued by the carrier made the $7500 maximum null and void. Orman then asked for a copy of the certificate. The Company presented a certificate to Orman either at this meeting or on June 3, 1981 . The certificate was in blank 33 and did not contain the null and void language . Zeppelin said he would add the language to the copy Orman had and sign it Orman could not agree. Orman had request- ed different language in the opening sentence of the clause, but the Company contended that the clause as written was sufficient. The parties discussed the propos- al, particularly the confusion raised by the addition of the last sentence. Orman expressed agreement to the pro- posal as written and submitted April 20, 1981, preferring that proposal to the one submitted in 1977. Jacqua and Zepplin caucused , and, on reentering the meeting room, agreed to the proposal. About 3 p in , Zeppelin left the meeting to return to the plant. Orman and Jacqua dis- cussed Jacqua's prior reservations to agreeing on the old 1977 leave of absence and funeral leave proposals. Fol- lowing a discussion , the parties agreed to leave of ab- sence. Later, the parties also agreed to the funeral leave proposal. Before the meeting ended , Orman requested that Jacqua compile a typewritten list of each proposal that the parties had agreed to at this point in time. Orman suggested that such a list would be helpful to the parties. Jacqua agreed and said he would have it typed. The meeting ended without any date for the next meet- ing being agreed on. The parties next met on May 21, but Orman could not recall how the date was agreed on. Wise, rather than Jacqua, represented the Respondent. Orman used his notes from the previous meeting and requested an update on the insurance and pension proposal , the compilation of agreed-on clauses, and the information on supervisors doing unit work. Wise agreed to give the names of su- pervisors and the amount and type of unit work they were doing but said he was not sure he would give wage and benefit information on supervisors . Orman told Wise that he had given Jacqua case citations supporting a union's request for such information . Wise was not aware of the substance of the previous meeting and told Orman he would have to check. Orman enumerated the request- ed information : the language change in the insurance and pension clause; the typed copy of agreed -on clauses; and the working supervisors' information Orman said that Jacqua had agreed to change the language in the insur- ance and pension clause but Wise said he was not aware of any agreed -on changes Orman persisted that his notes reflected two agreements by Jacqua to different lan- guage. The parties discussed changing the language in the representation clause about investigation of griev- ances. Orman said that Jacqua did not disapprove of em- ployees discussing grievances on company property but Orman wanted the language to specifically reflect that fact. Jacqua had said the Company could not take that right away from employees. Wise agreed that the em- ployees could not be denied and suggested language, "nothing within, would abridge the employees rights under the National Labor Relations Act." Orman re- quested that the language be added to the proposal. Orman asked for information on productivity pay that employees had received the past year. After lunch, Wise returned with some information Orman requested Wise gave Orman the productivity pay information requested that morning. Orman proposed swapouts on the repre- 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentation and seniority proposals. If the Respondent would add the additional language on employees rights to discuss grievances on company property, the Union would agree to it. Also if the Respondent would give 2 years' retention of seniority, the Union would agree to 120 days' probation. Wise said he would consider both proposals. Wise orally told Orman that Pepper and Pe- terson were the only supervisors doing any unit work that could be measured and each performed about 50 percent. Orman questioned, "only two," and the amount of work being done and wanted Wise to put the informa- tion in writing to eliminate misunderstanding. Orman next proposed if the Respondent would give the Union copies of all hires, all terminations, and all leaves of ab- sence, the Union would agree to a seniority list once a year. Wise said he would look at that. As the meeting ended, Orman asked when the next meeting would be. Wise said, "Well, I'll call you or you call me." Wise stated that he could not meet the next week. Orman asked why he could not meet the next week. Wise responded, "Well, can't you just take it that I can't meet?" Orman could not recall just how the meeting date was arranged but the parties did agree on June 3 for the next meeting.6 On July 21 the same four principals met Orman opened the meeting asking for the information previously requested. Wise asked, "What are you talking about?" Orman stated: the working supervisors information; change of language on the insurance clause; change of language in representation clause; and Respondent's posi- tion on leave of absence. Wise gave Orman a typed list of agreed-on clauses; the information on working super- visors in writing; and written proposals on leave of ab- sence and representation. Orman told Wise that he ex- pected the previously agreed-on clauses to be typed in completed form, not just listed. Wise said he did not promise Orman to do that and that Orman could write just as good as Wise could. Wise did agree to compile the clauses agreed on and have it at a future meeting. Orman asked Wise his response to the swapouts pro- posed in a previous meeting. Wise responded that the Company was not changing their position on any of its proposals. Orman asked for additional information on working supervisors about their wages and benefits. Wise wanted to know why the Union wanted that particular information. Orman pointed out that Wise had orally stated that two supervisors worked about half their time on unit work whereas the written information submitted to Orman says over 50 percent of their time is spent on unit work. Orman sought a clarification and Wise stated that at times one of the supervisors could do 100-percent unit work. Orman again said he wanted the wage and benefit information on Pepper and Peterson. Wise asked Orman what the Union's wage proposal was and Orman said, "A substantial wage increase." Orman questioned the written information submitted on the productivity pay. The information was listed by employee clock num- bers but no names. Also there was a mixup in the papers, but after some discussion the mixup was straightened B The parties did meet on June 3, but Witness Orman was confused about the events that occurred on June 3 and July 21 out Grievance and arbitration was discussed but no agreement was reached. Wise made reference to the Fifth Circuit cases as they relate to the substance of prior proposals and stated to Orman that the Company was not going to change on several of its proposals. Wise said the Company wanted the seniority like it was proposed and did not intend to change on checkoff. The parties discussed the next meeting date and Wise said he could meet for a couple of days but not the following week. Orman could not meet the second week so the parties adjourned with Wise saying he would get back in touch with Orman. Orman did not hear from Wise so he called Wise on August 3 but Wise was in a meeting Orman called the next day and left a message for Wise to return the call, Wise later called Orman and the two agreed to August 11 and 12 to meet 7 Wise did not show for the meeting on August 11, albeit Orman and Thompson were present. The following day the four principals met for negotia- tions. Wise opened the meeting asking Orman for union counterproposals Orman submitted proposals on repre- sentation, grievance and arbitration, checkoff, and senior- ity. Orman outlined for Wise the new changes contained in the Union's latest proposals. Each proposal was dis- cussed based on the changes. Several changes were dele- tions of sections proposed previously by Respondent and others were reductions in demands by the Union. One of the changes in the seniority article was a carryover from the 1976-1977 negotiations. Orman showed Wise evi- dence of the Respondent's prior agreement to the change and Wise asked for a copy of the prior proposals that specifically reflected the agreement. Orman accommo- dated Wise and told him that the changes from the Com- pany's earlier proposals were very little. Wise said he would not agree at the time, but he would consider the proposals Wise added, "The passing of time does not change our mind." After lunch Orman asked for the in- formation on supervisors' pay and fringes he had previ- ously requested and Wise said he was not going to give it. There was no agreement on the proposals under con- sideration. An argument ensued over the parties meeting the following week. Orman told Wise, "Well, we dust as well as to break off today instead of arguing." Wise re- sponded, "You just did," and closed his book and left. Wise told Orman to call about a meeting date. On Sep- tember I Orman called but could not reach Wise. Sever- al additional calls were made on subsequent days and on September 4 the parties agreed to meet September 11. On September 11 the parties met. The proposals that were on the table were discussed. Neither party was willing to reduce its demands. Wise, when asked by Orman why agreement could not be reached on the pro- posals, replied, "We like our language better." Wise asked the Union for its monetary proposal. Orman cau- cused with Thompson and orally proposed wage in- creases of 60 cents the first year, 50 cents the second year, and 50 cents the third year. Wise recorded the oral proposal and said, "Well, well look at this and we will have you a monetary proposal at the next meeting." ' The air traffic controller's strike was in progress on August 11 GULF STATES MFRS. 35 Wise stated that he could not meet the next week and suggested he call Orman or Orman call him. Orman waited for Wise's call until September 22 and then called Wise. Wise suggested that Orman meet with him in Memphis. Orman agreed to meet on September 28 in Wise's office. About 1 p.m. Orman and Wise met. Orman testified "that Wise did not say the meeting was off the record." Wise opened the meeting by asking , "Curtis, do you really want a monetary proposal?" Orman respond- ed, "Yes, why shouldn't I." Wise said, "Well why don't you give up? You've fought a goof battle and I don't be- lieve anybody could blame you if you give up now. The employees filed one decent petition which you won and now they have another decent petition ." In several of the prior meetings with Wise , Orman had inquired about the status of a current decertification petition among the employees . Orman said he was not much on giving up, he had been knocked down a few times but he always got up and went on . Wise asked at this time to talk off the record and Orman agreed. Wise said that if the Union made the Company submit a monetary proposal, it would not be of short duration and it would be so low that it would not be acceptable to the employees. Orman said that the employees would take less now . Wise told Orman that the Company was afraid of that and that the Company did not want a contract and he would not be able to get any proposal from the Company that the em- ployees could accept. Orman told Wise that the employ- ees would accept any proposal that was reasonable. Wise referred to the Fifth Circuit cases and acknowledged that the Union would probably file charges again. Orman stated that the Fifth Circuit cases were the reason the Union reduced their current proposals, seeking an agree- ment. Orman agreed to consult with the employees about whether they wanted a monetary proposal from the Company. Wise offered Orman the use of the company plane but Orman declined . He had not used other com- panies' planes because he was unsure of their reliability. Therefore, he would not use Respondent 's plane. Orman told Wise he would call back within 3 days and tell Wise whether he wanted a monetary proposal or not. Orman suggested that he probably would want a monetary pro- posal. Wise at this time told Orman of his upcoming va- cation. Orman talked to Ed Thompson and two other employ- ees at the plant and they wanted a money proposal. Orman notified Wise on October 1 that the Union wanted a monetary proposal . Wise said he would call Orman on October 6. Wise did not call and on October 12 Orman called Wise and learned he was on vacation. Orman received a letter the next day notifying him of Wise's vacation. Orman called on October 29 but Wise was not in. Orman again called Wise on November 4. Wise suggested November 11 and stated, "I will confirm it by phone next week, but if you don't hear from me, I will be there." On November 10, Orman called Wise and talked to Wise's secretary. She said Wise was at the plant in Starkville, but she did not think he would be there on November 11. The parties did not meet on November 11. On November 13, Wise, by letter, withdrew recogni- tion from the Union . Subsequently, Orman demanded further negotiation meetings and Wise declined to meet. Scott P. Watson testified that beginning in 1971 he was legal counsel for Respondent . The economic condi- tions of the Respondent extant in 1975 were repeated in succeeding years. The temporary and permanent layoffs and short workweeks of 1975 were duplicated in the fol- lowing years and up to and including 1982. Watson served as a negotiator for Respondent early in the Union's representation of employees . Herman Allison succeeded Watson as a company negotiator in mid-1976. All negotiations were conducted in conjunction with outside counsel on behalf of Respondent. The Union, throughout bargaining , has been represented by Curtis Orman. When negotiations first began, the Respondent's layoff policy included a 30-day retention of seniority by laid-off employees. The Union proposed 24 months and Re- spondent proposed an increase to 60 days . From before 1975 and to the present time, it was Respondent 's policy to shorten workweeks, shut down the plant, lay off em- ployees, and reschedule or cease overtime hours to pre- vent an accumulation of inventory or because of raw ma- terial shortages. Additionally, for numerous reasons, a customer may, subsequent to placing an order for a building and Respondent beginning its manufacture, cancel or place the order on hold , requiring a change in the plant's production scheduling including short work- weeks, shutdown, overtime hours, or a layoff of selected employees. Watson stated that the Company closed a grain bin manufacturing department in 1976 for econom- ic reasons and without notification to the Union. Like- wise, during Watson's negotiations, the Union was not notified prior to layoffs. Each time that work hours or schedules were changed due to business conditions, the changes were discretionary with Respondent. David P. Jacqua testified that he negotiated for Re- spondent in the absence of Wise on February 3, March 19, and April 2, 3, and 20 (1981 ). Jacqua identified the so-called working papers as the result of his research into past negotiations. The working papers were the compila- tion of proposals previously agreed to and those on the table when negotiations broke off in 1977. Jacqua denied that he told Orman on February 3 that he did not come to the meeting with any proposals. Orman did refer to the working papers as proposals and the two discussed several of the items. Orman compared the working papers with his records of past negotiations . During this meeting Jacqua gave Orman a corrected and updated employees list that was previously requested by Orman. Jacqua enlisted Orman's aid to ascertain the most accu- rate compilation of prior agreements as well as the most recent substance for all past proposals . Orman, after some discussion, stated that they should abandon the compilation and just start over. The parties corresponded on the next meeting date and Jacqua agreed to March 12 or 25 . By telephone they agreed to March 19 with March 20 left open . Jacqua advised Orman he could not meet on March 20, but could meet March 26. Jacqua met with Orman on March 19 and several of the items con- tained in the working papers were discussed . A meeting on March 26 did not materialize but the parties did meet April 2 and 3. On April 2 the parties discussed the simi- 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD larity or not of Jacqua's working papers, to proposals made in 76 and 77 and both used the working papers as company proposals. Jacqua agreed to substitute a more recent company proposal as submitted by Orman from his records for any proposal contained in the working papers. Orman did produce several more recent compa- ny proposals from his files and Jacqua substituted them. The seniority proposal was discussed focusing on Orman's only objection, the period for retention of se- niority while on layoff. Whether the proposal was made at the second or third meeting, Jacqua did offer a check- off proposal to Orman. The substitution of more recent company proposals from Orman's files continued during the April 20 meet- ing. During discussion of the insurance and pension pro- posal, Orman requested a copy of the new insurance cer- tificate and Jacqua supplied it. Although Orman had sub- mitted, in October 1980, a benefits proposal listing vari- ous coverage amounts, no discussion took place on amounts of coverage, either current amounts or past amounts. In fact, no economics were broached up to this meeting. Jacqua denied that he promised to retype the compilation of proposals that the parties had agreed to at this point, but he did recall that he suggested because the proposals were typed, the prior dates could simply be whited out and a xerox copy made. There was no agree- ment reached on how proposals would be documented for easier access by the parties. During the meeting Orman requested the wage and benefit information of su- pervisors who engaged in bargaining unit work. Jacqua relayed the request to Wise after the meeting ended. Edward Wise testified that he became counsel for Re- spondent with the responsibility of negotiations shortly after the Union requested bargaining in August 1980. After the initial correspondence between the parties, the Union made a request for information. Respondent sup- plied the information and the parties agreed to meet for the first time October 24, 1980. The first meeting was spent attempting to ascertain where the parties were in negotiations. Wise had received a large box of notes from past negotiations. Wise suggested to Orman that be- cause Orman had been present for negotiations, his notes would be more organized and up to date. Orman ex- plained that the Board office had needed his notes for an upcoming trial and had completely disorganized them. Both parties agreed to research their notes to ascertain what past agreements and past proposals had been made. The parties also agreed that a 12-percent wage increase could be instituted. Orman did state that he would get a package proposal together and submit it to the Compa- ny. Several days after the meeting, Orman did submit a group of proposals to Wise. The following week the ULP trial was conducted. During the proceeding Wise and Orman agreed to meet again on December 2. The parties met and discussed the Union's proposal, but still were not able to compile the status of past nego- tiations. Orman wanted a complete contract proposal from Wise to expedite a complete agreement. Wise agreed that a complete package submission would be good but it was going to take more than a few days. Wise did not state to Orman that it would take a long time to get a contract. The December 2 meeting ended without much accomplished. Later in December, Wise's father entered the hospital and died on January 5, 1981. Wise was involved with the normal testamentary matters thereafter and also contract- ed the flu. Wise assigned his associate, Jacqua, to handle negotiations for an indefinite period because office mat- ters were in arrears due to his personal problems of the preceding 2 months. During February when Jacqua was negotiating, Orman filed an ULP charge based on the conduct of ne- gotiations. The Board's Regional Office investigated the charge but found no merit Wise resumed the negotiating at the meeting of May 21. A meeting was also scheduled for and held on June 3. At this meeting Orman requested wage and benefit data for all supervisors doing some bargaining unit work. At some point after his resumption, Wise saw Orman at the Federal Mediation and Conciliation Services Office while both were in attendance on unrelated matters. Pleasantries were exchanged, but Respondent's negotia- tions were not discussed nor were any promises relating to proposals asked for or made. The parties had made ar- rangements to meet again, back to back, on June 18 and 19. Prior to the meeting dates, Orman contacted Wise's office to cancel June 19 due to conflict On June 15 Wise told Orman that he was going into the hospital and could not meet on June 18 Wise was confined to the hospital for a week. After the hospital stay, the parties commenced to arrange the next meeting The plant was shut down the week of June 30 and Orman had prior commitments the second and third week of July so the meeting was set for July 21 Following the July 21 meet- ing, wise and Orman agreed to a 2-day meeting on August 11 and 12. Wise had arranged to fly down the morning of August 11, however, his flight was cancelled the same morning and he was unable to get a flight until afternoon The cancellation resulted from the PATCO strike that was in its early stages. The parties did meet August 12. At this meeting Orman presented a second group of proposals reflecting several changes from the Union's first proposals. Checkoff, grievance and arbitra- tion, representation, and seniority made up the package During discussions of the proposals, Orman suggested that the Union's changes should produce agreement. Wise told Orman that the Company's proposals repre- sented the Company's positions. Both parties expressed that the other should change and Orman objected to Wise's immovable stance. Wise states, "The company's position did not change by virtue of the passage of time. They had bargained long and hard The company's posi- tion had been tested twice economically by two strikes and legally by taking the case to the Fifth Circuit Court of Appeals. The mere passage of time was not going to constitute a change of mind." Orman did not make any response to Wise. The next meeting was set for Septem- ber 11. Wise and Orman met on September 11 and, after dis- cussions of the prior proposals, both agreed that wages should be discussed. Orman proposed 60 cents first year, 50 cents second year, and 50 cents third year. No agree- GULF STATES MFRS 37 ment was reached on wages but the economics of the pension and insurance article were pursued; however, no agreement was reached . A discussion of the representa- tion article, focusing on the proscription of investigating grievances on company property without prior approval of management, produced a language change by Wise Orman objected to the proposal language contending that the proscription was itself a violation of employees' rights. Wise contended that the proscriptions did not apply to nonwork areas or nonwork times, but Orman considered the proposal ambiguous . Wise amended the language by inserting the phrase , "nothing contained therein would abridge any rights any employee was guaranteed by the National Labor Relations Act." Orman remained in opposition to the language so Wise suggested that Orman propose the language. Orman ex- pressed a continuing like for the language in his proposal and Wise held to his proposal . Wise next suggested that the two supervisors who performed some bargaining unit work had so little supervisory functions at this stage they should be in the unit and represented by the Union. Orman was not in agreement arguing that if they were supervisors, he did not bargain for them although he did still want the wage and benefit data requested earlier. Wise had previously given Orman the particulars on the work performed, but did not supply the wage and benefit data requested . The two supervisors continued perform- ing as before Wise testified that an unscheduled meeting with Orman was held in Wise's office on September 28. Wise had suggested the impromptu meeting to discuss Orman's status as representative Orman agreed to meet and did so in the afternoon . Wise told Orman that his support had dwindled and it appeared that he was seeking a graceful way out of the Gulf States situation . Wise did not mention the existence of a decertification petition in the plant . Wise did offer whatever help he could give. Wise was not representing the Respondent in this meet- ing but rather was exploring practicalities with Orman. Although Orman did not agree that he lacked support and wanted out, he did not deny that Wise had accurate- ly assessed his position . Orman did say he would rather wind up a contract than just walk away. Orman may have asked for a reasonable economic proposal from the Company, but Wise did not accept it. Neither did Wise say the Company did not want a contract . Albeit an em- ployee petition was not discussed in this meeting, Orman had previously questioned Wise about an employee peti- tion circulating in the plant . Orman told Wise he would think about their situation and get back to Wise The meeting that lasted about one-half hour ended A couple days later, Orman called Wise and said he would rather continue the negotiations for a contract and sought a meeting date. Wise apprised Orman of his upcoming va- cation and said when he returned he would get in touch with him On returning from his vacation , Wise agreed with Orman to meet Tuesday , November 10. Wise went to the plant the afternoon of November 9. During preparation for the meeting, Wise was called back to his Memphis office. Wise instructed Zeppelin to meet with Orman on November 10. Zeppelin waited at the motel but Orman did not appear. Orman called Wise's office to affirm that the meeting was still on for Wednesday, November 11, and learned Wise had pre- pared for a Tuesday meeting As a result of a mixup, the parties did not meet No further meetings were sched- uled. Wilfred White testified that he is controller of Re- spondent and has been in the accounting department since mid-1972 White prepared charts showing the rise and fall of employees complement and hours worked each week in 1974, 1975, and 1976. The plant's payroll is the source material for the chart. White also testified that economic layoffs occurred in November 1974, March 1975, and the 1976 chart reflects the strike in February White stated that the plant was normally closed 2 weeks each year-once midway in the year and then at the end of the year The 1975 work year experienced two addi- tional and abnormal plant closings. On occasion a cus- tomer places its order for a building on hold due to weather, financing, or simply corporate pains which, in turn, destroys the production schedule originally set up. Often times the result of such a hold is a layoff or a shut- down. White prepared several other exhibits reflecting the same information for years 1980, 1981, 1982, and 1983; also exhibits reflecting the flow of raw materials through production as indicative of the viability of the industry during the 1975 recession compared to the re- cessions of 1981 and 1982. Respondent is a member orga- nization of the Metal Building Manufacturers Association and White explained one of its functions of keeping ana- lytical records for the industry's production. The records show that the industry suffered progressive decreases in productivity each year starting in 1980 and up through the first quarter of 1983 Respondent is engaged in highly competitive business that occasions seasonal lags. Customer "held" orders produce double jeopardy for the plant's production An accumulation of inventory or a shortage of raw materials for other production can result. Breakdown of equipment can also affect the plants production depending on which equipment is down The Company has always exercised its discretion when faced with such emergencies beyond its control Thomas Zeppelin testified that he began employment with Respondent in February 1977 as director of person- nel. Zeppelin attended the 1977 bargaining sessions as a representative of Respondent. During August, a 3-week strike occurred, but bargaining resumed after a cooling down period. In December the parties agreed to discon- tinue negotiations until the Fifth Circuit Court of Ap- peals ruled on the Gulf States case that was pending. Ne- gotiations were not resumed until October 1980 Zeppelin testified that the layoff policy is implemented by need of job function If a decrease in the work force is indicated, an appraisal is made to determine which jobs are necessary to continue the remaining production. The least senior employee in expendable jobs are laid off. In addition, any employee who has a history of job prob- lems or writeups for work rule violations may be laid off out of seniority. Additionally, each employee had bump- ing rights into lower classification he is qualified for 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rather than being laid off. Zeppelin testified that the layoff procedure was that which had been negotiated. The nature of Respondent's manufacturing is geared to customer demand . Albeit several items may be used in all steel buildings constructed , the particular specifications of a given customer dictates the flow of production through departments. Where one building may have most departments involved in construction, another could require less departments for completion . Likewise, one department may be overworked by the production schedule and require overtime whereas a companion de- partment could be short of work . Due to various rea- sons, the plant will shut down periodically to adjust in- ventory necessitated by customer problems related to the construction of their building. Around November 2 or 3, 1981, there was a rumor in the plant. Several supervisors told Zeppelin that some kind of paper concerning the Boilermakers was going around the plant and asked what should do. Zeppelin re- sponded to the supervisors, "I don't care what you do but make dang sure that no one is taking a piece of paper around and signing it during work time ." Several em- ployees also told Zeppelin that a paper was floating around the plant and asked what they should do with it. Zeppelin stated to them , "First of all, I have no part of this. All I want to know is that you go out there and do your job and don't sign anything or signature anything during work time." Whether Zeppelin stated to the em- ployees or not, he testified that he was guided by past experience of having been through this before Employ- ees had previously expressed to Zeppelin that meetings were never held and they did not know who represented them and for these reasons they no longer wanted to be represented. In the second week of November , Zeppelin received the employee petition signatures from Richard- son, the general manager . Zeppelin was told to verify the employee signatures on the petition with the employee signatures in the personnel files. Of the 120 odd employ- ees on the payroll, 92 names appeared on the petition. Zeppelin used only the W-4 forms and the state tax forms on file in the personnel office. He completed the task in a couple of hours and returned the petition to Richardson . Later, Attorney Wise advised the Company on the petition. A notice was posted on the bulletin board to the effect , "Due to the petition, the employees no longer . . . the Company would no longer recognize the Union." Analysis and Conclusions A. Surface Bargaining The General Counsel contends that Respondent's methods and manner of bargaining showed an intent to frustrate execution of a collective-bargaining contract. The General Counsel's only witness was Representative Orman, who, since inception, has been the Union 's nego- tiator. Orman exhibited an honest effort to recall events of bargaining , but repeatedly expressed failure to keep the events chronological . His testimony covered eight meetings in the background evidence and four meetings within the 10(b) period. In addition , while testifying, Orman frequently and gratuitously characterized the sub- stance of conversations when he could not specifically recall the actual substance As a result, much of his testi- mony was neither probative nor informative. In the main, Orman's testimony showed that the progress of ne- gotiations did not differ between the background period and the complaint period Bargaining as a whole between the parties was disorganized on both sides of the table and both principals contributed to the confusion that at times protracted the sessions on less germane subjects. Both agents displayed an ambiguity with regard to the substance of prior 1977 bargaining and spotted recall during current bargaining . On occasion , each agent ex- pressed a desire to accept all prior ( 1977) tentative agree- ments, but each had problems solidifying what the actual agreements were Orman at one point became frustrated over their failure to compile the prior agreements and suggested that the parties start from scratch obviating the prior agreements; however, during subsequent bar- gaining, Orman himself proposed that the parties were in agreement on several proposals based on prior negotia- tions. Both parties spent a considerable portion of their bargaining time attempting to convince the other that prior proposals, self-authored , were not only the best proposals but were legally acceptable . Even though Orman's testimony was disjointed and suffered from completeness factually, when evaluated in light most fa- vorable to the General Counsel, it fails to disclose any facts supporting the surface bargaining allegation. Fur- ther, the evidence is insufficient to show that Respondent unreasonably delayed or engaged in tactics to frustrate bargaining . It cannot be gainsaid that the parties did agree on proposals and on meeting dates available to both The testimony of Respondent's agents was no better. Each witness for Respondent suffered from the same factual completeness and chronology of recall. The nature of the testimony proffered by both parties as evi- dence of what occurred during bargaining (background and current) is to me, instructive of the means and man- ners employed by both sides at the bargaining table, evincing disorganization mixed with self-pride of author- ship. Both parties to bargaining proposed and counter- proposed. Both parties to bargaining reduced their re- spective positions at times to seek agreement Both par- ties to bargaining at times held fast to their position in an attempt to require movement from the other . The record evidence does not disclose unreasonableness on the part of Respondent to meet with the Union . In the last analy- sis, what either party prefers as meeting times is not the measure of statutory reasonableness but rather is only a factor to be considered when bargaining is under scruti- ny. The record herein shows accommodation and coop- eration by both parties albeit not always at all times. Some confusion in setting meetings and agendas was ex- perienced, however, there is no evidence that such re- sults were preconceived or intentional . Moreover, plausi- ble explanations were given in several cases. Though some parties may require more self-organization in a ne- gotiation atmosphere , such is not a statutory require- ment The alleged slowness with which information was produced on request was not outside the realm of reason- ableness. The evidence shows that with one exception, GULF STATES MFRS 39 all material requested was produced timely, particularly within the framework established jointly by the parties for these negotiations. The record evidence of the September 28, off the record meeting, was substantially in conflict. Orman's version of the conversation was not in keeping with his total testimony as regards the nature of the meeting. Orman was not at all sure at what point in the conversa- tion that the parties were off the record Additionally, Orman could not specify from whom points originated. Orman's recall of statements made by Wise were either clouded with vagaries, as much of his total testimony was, or was voiced as specific recall in opposition to his general mental composure while testifying. Although I do not doubt that the substance of Orman's testimony was in some way broached in Wise's office, I do not credit his version of the meeting . The implausibility of Orman's testimony of statements made at the meeting is substantiated by the undisputed content of the closing re- marks. Hardly the atmosphere that would be generated by remarks attributed to Wise. I, therefore, do not credit the remarks specifically attributed to Wise and alleged by the General Counsel as factors. supporting the surface bargaining allegation. Although the nature of the meet- ing is somewhat in question, it is clear that the purpose was not for negotiations, but rather an off-the-cuff dis- cussion. As such, violations based on its substance are likewise questionable from a custom standpoint. Accord- ingly, I conclude and find that the General Counsel's evidence does not show surface bargaining, and I shall dismiss paragraph 12 of the complaint. B. Requested Information on Supervisors The evidence shows that Orman requested information on supervisors doing bargaining unit work including the amount of work performed and the wage and benefit data for the supervisors. Although the Union's request was outside the 10(b) period, the request was renewed several times during the complaint period. Respondent submitted the identity of two supervisors doing bargain- ing unit work and the amount and kind of work done. Respondent admittedly on August 12, 1981, refused to supply the wage and benefit data on the supervisors, opting instead to offer to strip the individuals of supervi- sory authority and place them in the unit. The Union ob- jected and continued its request for the economic data. The record evidence shows that the amount of bargain- ing unit work done by the two supervisors was directly proportional to the loss of employees in the department due to economic layoffs. Respondent argues that failure of the Union to specify relevance or articulate the need for the information vitiates Respondent's obligation to supply the information. It is clear that Respondent, during negotiations, had no doubt of the purpose behind the request, for such knowledge is what promoted the offer to make the two supervisors rank-and-file employ- ees. Indeed Respondent had proposed since negotiations began in 1976 that supervisors continue to do unit work and even now argues that it does not have to concede on this point. Whether the Respondent has to concede or not, the fact is that the parties were bargaining on the very point. Negotiations between management and labor are too varied and diversified among all industries to be so formalized as suggested by Respondent. The econom- ics involved in layoffs of employees may easily be quali- fied by the cost of production, particularly when the layoff results in a supervisor engaging in production work. Respondent's argument is a legal conception, after the fact, and unrelated to the factual mechanics of bar- gaining between the parties at the time Respondent un- qualifiedly refused the information. Some requests for in- formation are so nonacademic as to require no further explanation. This is one such request, especially in view of Respondent's history of single obedience to all its past practices that were unequivocally known to the Union and Orman, in particular. I conclude and find that Re- spondent's refusal to supply the information is not allevi- ated by its offer to reassign the two supervisors and thus violates the Act as alleged. C. Withdrawal of Recognition Respondent, admittedly withdrew recognition from the Union on November 13, 1981, following its confirma- tion of employee petition signatures seeking an end to representation by the Union. A subsequent employer pe- tition for an election is procedurally blocked by the in- stant charge. Although the General Counsel's complaint alleges the withdrawal to be an independent violation of Section 8(a)(5), the General Counsel does not attack the employee petition that is the underlying objective sup- port for the Respondent's withdrawal action. The Gener- al Counsel contends that Respondent's conduct is viola- tive for two reasons. One, the withdrawal occurred within a context of unfair labor practices by Respondent and, two, unremedied unfair labor practices were extant when the withdrawal took place. Although not articulat- ed by the General Counsel, any determination must rec- ognize that the unremedied unfair labor practices must be of a nature to have contributed to the employees dis- affection and thus helped produce the loss of majority status. The General Counsel must prevail on both counts. Respondent committed a bargaining violation just 3 months before withdrawing recognition from the Union and refusing to bargain further by not supplying the wage and benefit data of supervisors engaged in unit work In addition (but without particulars in the record evidence), Respondent is appealing the unfair labor prac- tices found by Judge Cates on January 30, 1981, and aug- mented by the Board in its order of May 13, 1982. The unfair labor practices found by Judge Cates were en- forced by the Fifth Circuit Court of Appeals excepting only to the augmented remedy of backpay by the Board. Those unfair labor practices of 1980 have not been reme- died. The record evidence shows a considerable reduc- tion in Respondent's work force over the years from 1975 to the present. Albeit the reductions were due to economics they were accomplished by discretionary lay- offs. The 1980 unremedied unfair labor practices includ- ed two such layoffs found violative because Respondent did not notify or bargain with the Union prior to the lay- offs. It is not subject to question that a unilateral reduc- tion in an employer's work force causes union disaffec- tion among employees, and I so find. Moreover, Re- 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent has steadfastly maintained (since 1975 to present) that its practice of discretionary layoffs preced- ed the Union's initial certification and, therefore, Re- spondent can continue such past practice with impunity. Thus, Respondent's violative conduct that is contribu- tory to the Union's loss of majority support is of a con- tinuing nature Only after outstanding unfair labor prac- tices are remedied and Respondent refrains from further commissions of unfair labor practices is Respondent priv- ileged to withdraw recognition from the Union. I, there- fore, conclude and find that Respondent independently violated Section 8(a)(5) of the Act by withdrawing rec- ognition from the Union on November 13, 1981. D Unilateral Actions Following its withdrawal or recognition from the Union, Respondent refused to meet further with the Union's representative and made several unilateral changes in wages, hours, and other conditions of em- ployment Admittedly, Respondent refused to meet and made the unilateral changes the Union was no longer the employees' representative that arguably freed Respond- ent to act as it did. Having found the withdrawal of rec- ognition a violation, it follows that any conduct follow- ing the withdrawal and based thereon is itself violative if it represents action that should be first negotiated with the employees' representative. The parties stipulated to the following action that Respondent took without notice to or consultation with the Union: November 23, 1981, the employees received a 15-percent wage increase; April 1, 1982, the employees were given an option to in- crease their insurance coverage but requiring an employ- ee contribution of $1.85 per week, beginning March 29, 1982, and continuing through the year, Respondent either closed the plant or reduced the number of hours worked by employees in some departments, on July 22 and October 20, 1982. two layoffs occurred affecting 15 and 13 employees, respectively; November 28, 1982, em- ployees received a 5.5-percent wage increase and during 1983 beginning in March the plant was closed for a week and following the closure some departments began a 4- day, 40-hour week; some departments continued a 5-day, 40-hour week, and others assumed a 5-day, 50-hour week. With the exception of the plant closing, the unilateral actions taken by Respondent subsequent to the with- drawal of recognition should have been negotiated with the Union. The record clearly defined the "Job Shop" nature of Respondent's business and amply discloses the economic necessity of immediate production changes to sustain a viable work force and to control the plant in- ventory that through unforeseen and uncontrollable con- sequences could be placed in economic jeopardy. The plant closures are recognized by the Union as an eco- nomic necessity with only a qualification of reasonable effort to close for vacations during the summer months. Neither the Union during negotiations nor the General Counsel in his complaint questions the Respondent's mo- tives or the incidences of closing. Thus, I find that the closings of the plant do not constitute unilateral changes subject to the obligation of bargaining The changes in workweeks and hours, however, are subjects of the Union's initial proposal in October 1980. The Union pro- posed specific definitions for workweeks and workdays. The parties negotiated from that first proposal through- out bargaining. Notwithstanding Respondent's past prac- tice or the economic necessities involved in changing the workday or workweek of selected departments, the sub- ject having been broached in bargaining forecloses a uni- lateral action by Respondent, absent an impasse in bar- gaining. Here no impasse exists so the unilateral action by Respondent bypasses the exclusive bargaining repre- sentative of the employees, and I find that it constitutes a violation of Section 8(a)(5) of the Act. The unilateral wage increases in November 1981 and 1982 are much too obvious to require discussion. Here, again, absent in impasse, Respondent is not free to unilat- erally institute a wage increase. No impasse existed and, therefore, I conclude and find that Respondent's action violates Section 8(a)(5) of the Act. The insurance option offered to employees is in addi- tion to the coverage bargained for by the parties. Any changes in the coverage must be negotiated with the Union whether the change constitutes an increase or de- crease in coverage. Respondent's action of unilaterally offering the cover- age to employees bypassed the employees' exclusive bar- gaining representative, with whom Respondent is obli- gated to negotiate such insurance coverage. Respondent's failure to act within its bargaining obligation is a viola- tion of Section 8(a)(5) of the Act and I so find. The remaining unilateral actions by Respondent are the layoffs of July and October 1982. The mechanics of layoff have been the subject of bargaining between the parties from the Union's inception in 1975 In fact, the operative union proposal in the instant case is identical to that proposed by the Union June 15, 1976, and a subject of the Fifth Circuit Court of Appeals review of the first Board case in this series. There Respondent argued that its bargaining with the Union was in good faith in spite of the fact that a contract had not been completed. The court agreed that Respondent's efforts at the bargaining table (including seniority) were lawful. Further, Re- spondent engaged in two unilateral layoffs during the second case in this series that resulted in unfair labor practices findings by Judge Cates and the Board. The court of appeals' judgment affirmed the layoffs as unfair labor practices due to Respondent's failure to notify and consult with the Union prior to taking action Here, there is no dispute that Respondent failed to notify or consult with the Union before effectuating the layoffs of July 22 and October 20, 1982. In view of Respondent's continued obligation to bargain with the Union and the history of particularized bargaining over the seniority clause, which includes layoffs, I conclude and find that the layoffs violated Section 8(a)(5) of the Act Moreover, the judicial precedent, law of the case, argued so vehe- mently by Respondent, has specific application to the layoffs Respondent persisted in contending that its past practices, which predate unionization, and its fiscal status, which is directly attributed to the nation's econo- my, was considered by the court as vitiating any bargain- ing obligation to the Union where any past practices are GULF STATES MFRS 41 concerned . Respondent's single-minded purpose to main- tain work efficiencies cannot be pursued without input from the Union . Notwithstanding that past negotiations did focus on reserved company rights , no agreement was reached between the parties Absent agreement , the par- ties must continue to negotiate Although the court did recognize the economic status of Respondent as evidence of intent for its actions, the court did not allow carte blanche to Respondent for unilaterally continuing any discretionary past practice . Had the court done so the layoffs of 1980 would not have been affirmed as unfair labor practices . Moreover, if Respondent's appraisal of the court's decision was accurate, any practice predating unionization could be unilaterally continued with impuni- ty. Such a result would make a total mockery of an obli- gation to bargain . Respondent's failure to notify and con- sult with the Union prior to the layoffs in 1982 is bypass- ing the employees representative whether the reasons giving rise to the layoffs are beyond reproach. Addition- ally, whether the incidences of layoff constitute a change in prior working conditions is not jurisdictional to a find- ing of refusal to bargain . Respondent in brief argues, "even if one were to assume that recognition of the Union was improperly withdrawn, there was no obliga- tion to bargain with the Union concerning a continuation of past practices. The layoff practices were a historical fact." But historical facts are simply the groundwork for bargaining . Bargaining may very well produce a contract that accepts past practices or is silent on past practices, but the Union has the right to question all past practices, including those put into play by economics. The record evidence clearly evinces that layoffs of employees from time to time are inevitable In these times no company can be faulted for any attempts to reduce the cost of manufacturing, particularly to maintain its competitive status in its industry . Such an economic purpose standing alone cannot run afoul of the Act. I therefore conclude and find that Respondent 's reasons for the layoffs (not at- tacked by the General Counsel) do not constitute viola- tions of the Act. But, the mere fact that a union repre- sentative cannot question the Company 's need for a layoff does not obviate the representative's right to at- tempt to change the means and manner of conducting the layoff through bargaining . Particularly, is bargaining called for where, as here, prior to the layoffs the two parties have, in fact, bargained over procedures for lay- offs. I find nothing in this record that would preclude the Respondent from negotiating layoffs with the Union in spite of the immediacy that may be called for by eco- nomics The Respondent itself had time to consider which employees and which departments would be af- fected without suffering an irreparable economic loss. It is reasonable enough to simply include the Union in such considerations. I conclude and find that Respondent's propensity to continue its past practices without regard for the Union's representative status was previously de- cided by the Board and the court and became , as else- where contended by Respondent, "the Law of the case " A priori, and on this record independently, Respondent has violated Section 8(a)(5) of the Act by refusing to bargain with the Union before effectuating any layoffs of employees Respondent disclosed in its brief that it has petitioned the Fifth Circuit Court of Appeals for "reconsideration" based on the court's failure to consider the issue of "past practice," in Judge Cates' case Although Respondent's petition has no bearing on my determination , I feel con- strained to point out that Respondent 's premise (its con- sistent past practices) for the reconsideration is in error. The wage issue decided by Judge Cates was bottomed on "consistency" whereas his findings on the layoffs were determined by the Respondent's "inconsistency." Therefore, the same rationale does not apply to both issues. Moreover, the court's enforcement of the layoff violations included consideration of Respondent's bifur- cated defense. On one hand, Respondent argued that the parties had negotiated an agreement on layoff procedures that it contended had been followed On the other hand, Respondent claimed an impasse was reached that ex- cused its failure to bargain over the layoffs The court concluded that no circumstances existed to excuse the failure to bargain over the layoffs. CONCLUSIONS OF LAW 1. All production and maintenance employees, plant clerical employees, full time and regular part-time driv- ers and leadmen employed by the Employer's Starkville, Mississippi location, excluding all office clerical employ- ees, draftsmen, guards, and supervisors as defined in the Act, constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2 The Union continues to be the exclusive representa- tive of the employees in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3 The General Counsel has not sustained his burden of proving surface bargaining by Respondent. 4 Respondent's refusal to furnish wage and benefit data on supervisors engaged in bargaining unit work constitutes a violation of Section 8(a)(5) and (1) of the Act 5. Respondent's withdrawal of recognition from the Union on November 13, 1981, was not privileged and, therefore, is a violation of Section 8(a)(5) and (1) of the Act 6. Respondent's unilateral actions of granting wage in- creases, granting additions to the pre-existing insurance benefits of employees and the layoffs of employees fol- lowing its withdrawal of recognition are individually and collectively violations of Section 8(a)(5) and (1) of the Act. 7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. The General Counsel seeks a backpay remedy to that ordered by the Board in the second case in this series. 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD That is, backpay for the laid-off employees from the date of layoff until the obligation to bargain over the layoffs is met. The court of appeals on review of the second case denied backpay and remanded the case to the Board for further findings on whether bargaining would have resulted in any change in the number or timing of layoffs or whether the Company's economic situation would have required the layoffs in any event. The court's remand was based, in part, on its rule that backpay or restitution orders will not be enforced when the result of enforcement would be to put the worker in a better posi- tion than he would have been in without the violation. This rule of the court's is no different than that of the Board. The court, on request, clarified its remand stating, "a make-whole remedy of this nature may only be or- dered upon a finding that the employer has clearly and flagrantly violated its duty to bargain. Such a remedy would not be warranted on the findings of this case (second case in this series) and our Order contemplates no such remedy." In the instant case clearly the layoffs were occasioned by pure economics and for no other reason. Additional- ly, the record is void of any independent violations of Section 8(a)(1) or any other violations usually associated with inferences of animus against the Union. Here, Re- spondent has adamantly maintained a purpose to pre- serve its business practices, which in itself is not unlaw- ful, however, several practices have been continued without regard for the Union's exercised right to bar- gain, thereby violating the obligation of continued bar- gaining I do not conclude that Respondent's violations are flagrant, particularly since the violations occurred during bargaining that was otherwise lawful. In view of the consistency between the Board's make-whole remedy and that of the courts, I shall not order backpay in this case The layoff procedures have been established so nothing more than filling in the blanks is required. Where time is of the essence, as it would be in layoff sit- uations due to economics, the parties could clearly act as quickly as Respondent acted alone Thus, little room is left for make-whole remedies. Selections of employees made by the parties would not be subject to question and no backpay would be involved because the layoffs are economically motivated. [Recommended Order for dismissal omitted from pub- lication.] 0