Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 83reasonably to believe that the contract language did not authorizethe employer to make such changes unilaterally and, thus, theunion had no need to negotiate a change in the contract language.Thus, Member Johansen concluded, at the very least, thispast practice demonstrated that there was no clear and unequivocalwaiver of the union's right to bargain over rule changes.c 3. Subcontracting Unit WorkIn Eltec Corp. 6 5 the Board adopted, under a somewhat alteredrationale, the administrative law judge's fmding that the employerviolated Section 8(a)(5) and (1) by failing to give the unionadequate notice and a meaningful opportunity to bargain over itsdecision to transfer and subcontract the parts assembly portion ofits operation. .The employer's parts assembly division constituted one of theemployer's two major operations. In February 1980, the employergave the union 4 days' written notice that it planned to terminateits parts assembly operation for business and economic reasons.In response to the union's request for a meeting, the employeradvised that it was unavailable until 1 day before thescheduled termination date. During the subsequent meeting, theemployer maintained that its economic problems resulted from a25-percent decline in sales, noncompetitive wage rates and benefitsfor parts assembly employees, burdensome state businesstaxes, and high workers' compensation and unemployment taxes.When the union asked what could be done to keep the affectedjobs in-plant, the employer indicated that it would need substantialwage reductions, a freeze on COLAs, reduced health benefits,a decrease in paid holidays, changes in the grievance procedure,and relief from various work rules. The employer, in responseto the union's question whether the decision was final,stated that the decision was not irreversible although, for economicreasons, it needed an answer regarding its requested concessionsby the next morning. Not hearing from the union, theemployer moved its equipment and operations within a few daysto Ohio, where, in early 1980, it formed a corporation in whichits vice president became a large stockholder, entered into a leaseagreement, and placed advertisements for employees. . •The judge, noting that the employer informed the union onseveral occasions after it subcontracted the subject work to theOhio corporation that it was still available and willing to talkabout its decision, concluded that the employer presented theunion with a fait accompli in February 1980, that the noticegiven to the union was not meaningful or adequate, and that itspostmove statement of availability to talk about its subcontractingdecision was not a specific offer to bargain.65 286 NLRB No. 85 (Members Stephens and Johansen; Chairman Dotson concurring in part anddissenting in part).