Amcar Div., ACF Industries

National Labor Relations Board - Board Decisions

Aug 2, 1977

231 N.L.R.B. 83 (N.L.R.B. 1977)

AMCAR DIV., ACF INDUSTRIES
AMCAR Division, ACF Industries, Inc. and Brother-
hood of Railway Carmen of the United States and
Canada, Lodge No. 365, AFL-CIO-CLC; Interna-
tional Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, Local
No. 27, AFL-CIO; International Brotherhood of
Electrical Workers, Local No. 1, AFL-CIO;
International Association of Machinists and Aero-
space Workers, District No. 9, AFL-CIO; Interna-
tional Brotherhood of Firemen, Oilers and Mainte-
nance Men, Local No. 6, AFL-CIO. Case 14-CA-
8980
August 2, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 23, 1977, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, AMCAR Divi-
sion, ACF Industries, Inc., St. Louis, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I we agree with the Administrative Law Judge that the 6-month period
of limitations under Sec. 10tb) of the Act did not commence to run against
the Union until the end of September 1975. at which time the Union knew
or had reason to know that the Employer was subcontracting its trailer hitch
work. The Employer is estopped from asserting a 10(b) defense, because its
fraudulent concealment of vital information from the Union caused the
latter to sleep while its opportunity to seek a legal remedy was slipping
away. We cannot permit the Employer to benefit from the specific unfair
labor practice which the Act explicitly empowers us to remedy. Don Burgess
Construction Corporation d/b/a Burgess Construction and Donald Burgess and
Verlan Hendrix d/b/a V & B Builders, 227 NLRB 765 (1977); Avila Group,
Inc., 218 NLRB 633 639(1975).
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge:
Respondent, a manufacturer of railroad cars and equip-
ment, has been charged with violations of Section 8(a)(5)
and (I) of the National Labor Relations Act, as amended
(the Act) for failing to notify and bargain with the
Charging Party (the Union) regarding Respondent's
subcontracting of railroad car trailer hitch production
work allegedly accompanied by layoffs of bargaining unit
employees who had performed such work, and for refusing
to provide the Union with information concerning the
subcontracting after the union requests for information,
commencing December 30, 1975. In an unrelated matter,
Respondent is further charged with violating Section
8(aX)(5) and (1) of the Act in refusing the Union's request to
see or obtain a copy of a handwriting analysis prepared for
and utilized by Respondent in connection with its dis-
charge of employee Ruffin, which discharge is the subject
of a pending grievance filed by the Union.'
Hearing of the case took place in St. Louis, Missouri, on
June 7 and 8 and July 7 and 8, 1976. However, it was not
until approximately the resumption of the second half of
the hearing in July 1976 that General Counsel and the
Union learned of the nature and extent of Respondent's
subcontracting for trailer hitch components and parts, after
Respondent complied with my order enforcing General
Counsel's subpena for the information (see report by
Respondent dated June 15, 1976, G.C. Exh. II). The
exhibit, and evidence related to it, showed that the
subcontracting began in March 1974, with the bulk of the
subcontracts let in the second half of 1974 and a few let in
early 1975, with delivery and completion in some instances
as late as 1976; and layoffs of the hitch department
production employees principally in the second half of
1974 and early 1975.
While the complaint had alleged, in paragraph 8, failure
and refusal to bargain concerning the subcontracting from
July 1, 1975 (the outer calendar limit of the 6-month
limitation period under Section 10(b) of the Act), General
Counsel over objection of Respondent moved at hearing
on July 7, 1976, to amend and backdate the claimed
violation commencing July 1, 1974, contending that
Respondent's alleged concealment, and the Union's al-
leged lack of knowledge, of the subcontracting tolled the
statute of limitations. It was agreed that I would, in this
Decision, rule on the motion to amend paragraph 8 of the
complaint and the limitation issue.
On the issues, apart from the dispute on the limitation
matter, General Counsel and the Union rely on the
statutory duty of the employer to notify and bargain with
the Union concerning subcontracting that affects the status
and work of bargaining unit employees; whereas Respon-
I The Union filed its original charge on December 30. 1975. and
amended charges on January 28 and March 17. 1976. The original
complaint issued on February 25, 1976, was amended on April 8. 1976, and
a further amended complaint was issued on May 26. 1976.
231 NLRB No. 20
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent contends the statutory duty does not apply here.
General Counsel and the Union also rely on the statutory
duty of the Employer to supply the Union with requested
information concerning subcontracting; whereas Respon-
dent contends that its limited responses to the Union were
adequate, and the longer and more detailed review
(obtained by subpena, supra) was not required of it. On the
Ruffin discharge matter, General Counsel and the Union
rely on the statutory duty of the Employer to supply
information enabling the Union to process a grievance;
whereas Respondent contends the Union has no need for
the item of information requested.
Counsel for all three parties have filed briefs.
Upon the entire record of the case, including my
observation of the witnesses and consideration of the briefs
and arguments, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New Jersey corporation authorized to
do business in Missouri, with the principal office and plant
of the AMCAR Division in St. Louis, Missouri, the only
plant involved in this case. At the plant, Respondent has
been engaged in the manufacture, sale, and distribution of
railroad freight cars and related products.
In calendar year 1975, a representative period, Respon-
dent manufactured, sold, and distributed, at its St. Louis
plant, products valued in excess of $100,000, of which
products valued in excess of $50,000 were shipped from the
plant to points outside Missouri.
As the parties admit, Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent's St. Louis plant is an enormous plant,
comprising 35 buildings on 50 acres. Respondent manufac-
tures, at the St. Louis plant, railroad boxcars and flatcars.
For the flatcars that carry (piggyback) the trailers of
tractor-trailer trucks, it also manufactures trailer hitches.
The trailer hitch is a triangular-shaped device made of steel
which, when in use, is installed on the flatcar, one at an end
and another in the center of the flatcar, and serves as a
simulated fifth wheel that locks into the end of the trailer
that is normally attached to the tractor.
The trailer hitches have been made in a section of
department 125, also known as the wood erection depart-
ment, which makes other components of railroad cars
(such as bridge plates) in various areas of the department.
Respondent has produced, since at least the 1960's, five
models of trailer hitches, models A, 2, 3, 4, and 5.
Respondent began production of the latest one, model 5, at
the end of 1972. The several models are essentially alike,
2 All of the foregoing information was supplied by Respondent's
principal witness, Edwin Meacham, who was superintendent of trailer hitch
production for the principal period in issue in this case; corroborated and
supplemented by Herbert Goodrick, the Union's business agent and
differing only in dimensions of certain parts of compo-
nents, and are produced in an identical manner by the
same classifications of employees using the same equip-
ment, except that the jigs (also called fixtures), for
assembly of the components of the hitch (such as the base
plate, vertical strut, diagonal strut, and head) and for
assembly of the completed hitch, differ in size because of
the dimensional differences among the models.
Respondent has produced two or more models simulta-
neously, and at the same time has produced additional
components and parts for all of the models, as and after
each model came into being, since it had a flow of so-called
jobbing orders from customers for replacement compo-
nents and parts for worn out or damaged hitches.
Respondent has produced, in its plant with its own
employees, all of the (fabricated) parts, components, and
completed hitches for all five models, and has also
produced the various jigs for assembling the different
model components and final assemblies. The parts are
made from raw steel by the fabrication department, where
they are punched, formed, and sheared. From fabrication
the parts are moved to the hitch area or areas of
department 125, where the assembly of parts into compo-
nents and the assembly of components into completed
hitches are performed. The main work in assembly is
performed by welders who place the parts, and later the
components, in suitable jigs for tack welding and final
welding. Some of the work is also performed by employees
classified as fitters, tackers, and drill press operators. The
jigs used in assembly are made in Respondent's tool and
die shop.
As of the time of hearing, Respondent had on hand,
either in place or in plant storage easily accessible for use,
all of the equipment, including jigs, necessary for making
all five models of hitches, their components, and parts. 2
In the course of production of trailer hitches and hitch
components over the years, Respondent used as many as
three full shifts of employees per day. In fact, said Union
Agent Goodrick, in 1966 he worked as an employee of
Respondent on the third shift of the hitch section. In the
period 1973-75, when Superintendent Meacham super-
vised the work, Respondent did not go beyond operating
two full shifts per day for the hitch section.
B. The Union Relationship
Since 1943, the five locals of Railway Carmen, Boiler-
makers, Electrical Workers, Machinists, and Firemen,
identified in the caption of this case, have constituted the
jointly certified bargaining representative of the production
and maintenance employees of Respondent's St. Louis
plant. According to Union Agent Goodrick, who since
January 1972 has been the spokesman for the union
negotiating committee and for administration of the
collective-bargaining contract (see fn. 2, supra), at full
capacity in the past the bargaining unit comprised 1,750
employees, whereas the present total is down to 1,000
employees.
spokesman in contract negotiations and administration of the collective-
bargaining contract, who had formerly worked in the plant from 1965 to
1972, including a period in the hitch section.
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AMCAR DIV., ACF INDUSTRIES
The current collective-bargaining contract runs for 3
years from September 22, 1975, to September 21, 1978. (See
C.P. Exh. I.) The predecessor 3-year contract (1972-75)
expired May 2, 1975, following which the Union went on
strike, which did not end until the effective date of the
current contract, September 22, 1975. The parties stipulat-
ed that neither the present nor the previous contract
contained any reference to subcontracting. In this connec-
tion, Union Agent Goodrick testified that the next previous
3-year contract (1969-72), which expired in May 1972, had
a side letter dealing with subcontracting. In negotiating the
1972-75 contract, the side letter was discussed. According
to Goodrick, Respondent's negotiating chairman, Fred
Smitzel, stated that the parties did not need the letter
because it required the Respondent to notify and bargain
with the Union regarding subcontracting, that Respondent
had a statutory obligation to do that, and hence putting the
letter or its substance into the contract would add nothing.
On obtaining legal advice, said Goodrick, Smitzel's
statement appeared to be true, and the Union agreed to
deleting the side letter from the then new contract (1972-
75).
Union Agent Goodrick further testified that, with regard
to maintenance subcontracting, Respondent always noti-
fied him if subcontracting was contemplated and provided
the opportunity for mutual discussion. Typically, said
Goodrick, Respondent's manager of industrial relations
would call the Union beforehand, and not infrequently, as
a result of the discussions, would decide there was no need
to proceed with the plan for subcontracting the mainte-
nance; whereas at other times it would appear there was a
need to proceed with the subcontracting, and Respondent
would proceed.
However, said Goodrick, there never was any notifica-
tion to him or the Union by Respondent, and he was never
aware, of any production subcontracting. Specifically, in
connection with the hitch components and parts subcon-
tracting upon which Respondent embarked in 1974, as
revealed at the hearing, Respondent's production manager,
Robert Saybert, who was directly responsible to the plant
manager, admitted that there was no contact with the
Union in deciding to contract out the work, nor was there
any discussion, among those responsible, of getting in
touch with the Union.
C. The Hitch Subcontracting
Not only was the Union given no notice of the 1974-75
subcontracting, let alone opportunity to consult or bargain
concerning it, but even Respondent Superintendent
Meacham, in charge of trailer hitch and components
production, was unaware of it, as he conceded on cross-
examination. He explained that later and eventually he
became aware of the subcontract purchases listed in
Respondent's report of them. (G.C. Exh. I I.)
Superintendent Meacham entered department 125 and
the supervision of hitch production in January 1973.
Production of the new model 5 had begun at the end of
1972, said Meacham, and when he came into the depart-
ment Respondent was producing about 5 to 10 model 5
hitches per day. Because of increased demand, production
was increased to 25 to 30 model 5's per day in the January-
March 1973 period, so that production was at 30 rrodel 5's
per day by April 1973. Because the demand was higher,
Meacham said he recommended expansion in space and
equipment, which recommendation was adopted. With
expansion completed by August 1973, the quota went to 50
model 5 hitches per day. The hitch area went on two shifts
and also worked Saturdays, so that the quota was actually
300 hitches for a 6-day week. There were 50 to 60
employees on each shift, embracing welders, fitters,
tackers, drill press operators, and painters.
However, said Superintendent Meacham, by the end of
1973, the department was not meeting the 50-per-day
production quota, and he asked Plant Manager Harrison
for better support from the fabrication department in
getting parts, and for additional lift truck service in moving
fabricated parts into, and moving completed subassembly
work through, the hitch department. Meacham testified
that he got the better and additional support, so that by
April 1974 the department was meeting its 50-per-day
quota, or 300 model 5 hitches per week.
Starting in May 1974, said Superintendent Meacham, in
an attempt to avoid the Saturday overtime, the hitch
section was cut back to a 5-day 40-hour week, but
continuing the two full shifts as before. The quota of 300
model 5's per week remained the same, but this required a
production quota of 60 per day. While the 60-per-day
quota was not reached, nevertheless actual production
went to between 52 and 55 per day in the 5-day week, said
Meacham. This situation continued through October 1974.
In November 1974, as the result of cancellation of
purchase orders for model 5, according to Superintendent
Meacham, the production quota was reduced to 30 model
5's per day, largely for stockpiling for future sales. The
second shift was essentially eliminated except for a
skeleton group of six to eight employees, said Meacham.
The production of model 5 continued at this pace through
March 1975, when it was stopped, and the department
made only components for several models.
On direct, Superintendent Meacham testified that in the
period January 1973-March 1975, while the department
was producing model 5 under his supervision, there was no
other production of complete hitches of other models. With
his memory jogged under cross-examination by General
Counsel and the Union, Meacham remembered that
production of model 4 hitches continued through Decem-
ber 1974 contemporaneously with model 5 production.
Again, on direct, Superintendent Meacham talked of
demands on the department to produce components of
some of the older models, particularly models A and 2, and
the difficulty he had because of the concentration on
production of model 5 hitches. He described some feeble
attempt on two or three Saturdays to set up the model 5
production area for production of the older model
components, and the waste of time on the Saturdays of
changing some of the equipment for the purpose and
changing back for the Monday resumption of model 5
production-which, of course, made such a scheme
impractical. However, on cross-examination he was re-
minded and he remembered that, throughout the whole
period of his supervision, model A and model 2 compo-
nents were made contemporaneously with models 5 and 4
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production, including some of the kinds of components
that were on the subcontracted list (G.C. Exh. 11) and
some that were not.
Though he had not been involved in, or aware of, the
subcontracting of hitch components and parts that com-
menced in March 1974, Superintendent Meacham was
Respondent's principal witness for the justification of the
subcontracting. There were 14 groups of subcontracts
(grouped by subject and contractor) totaling 35 subcon-
tracts, the first let on March 25, 1974, the second on June
14, 1974, the next 29 in the period between July I and
December 31, 1974, an additional 2 subcontracts in
January and March 1975, and the last 2 in May and
August 1975, when the plant was on strike. Meacham
contended that in each case there was a lack of capacity in
Respondent to get the work done in-plant.
By lack of capacity, said Meacham, he referred to four
variables affecting capacity, i.e., manpower, space, equip-
ment, and fabricated parts. Notwithstanding his claims on
direct examination concerning the particular absences of
one or more of these variables in analyzing the alleged
necessity for the 14 groups of subcontracts, the claims
largely collapsed on cross-examination, except for the last 2
subcontracts in May and August 1975 when the plant was
immobilized by the strike of the employees.
Thus, Superintendent Meacham conceded that manpow-
er was no problem at any time. In fact, as hereinafter
detailed, layoffs were taking place in the period of the
subcontracting. Meacham admitted that bargaining unit
employees had in the past done all of the operations
involved in the subcontracted work including fabrication,
sawcutting, and machine beveling of parts, and assembly,
welding, hotpress, drilling, and painting of components.
Superintendent Meacham also conceded that Respon-
dent had the equipment, including electric power and air,
and the space to do the subcontracted work. The summer
1973 expansion of hitch and hitch component production
had given department 125 additional space for hitch
production, beyond its original area, in two buildings, and
had provided additional equipment. There had been no
subcontracting in 1973. And, by summer 1974, there was
further additional unused space and equipment, including
power and air, in the adjacent St. Louis Car Company
facility, which Respondent leased, suitable for hitch and
hitch component production (testimony of Production
Manager Saybert and Union Agent Goodrick). Meacham
conceded that, even without this additional space, the
space that was being used for hitch and component
production could have been rearranged to accommodate
the production needs (without subcontracting), and that
rescheduling to do older model components on a weekly
basis rather than a Saturday-only basis would have avoided
the impractical and aborted Saturday-only experimenta-
tion. Respondent had all of the jigs (or fixtures) for all hitch
and component production, either in use or in plant
storage; indeed, even loaned some of its jigs and dies to the
subcontractors, according to Superintendent Meacham.
In the matter of the fourth variable-fabrication of
parts-Superintendent Meacham testified that the fabrica-
:' Transfers to other departments or jobs are significant because they
frequently involve "bumping" rights and resulting layoffs of the junior
tion department had all of the equipment and know-how to
produce, as it had in the past, but that he did not know
what their problem was and why he was not getting needed
parts from the fabrication department. He said manage-
ment told him fabrication was running at full capacity, but
he did not know how many employees the fabrication
department had on its three shifts. Production Manager
Saybert, who said that he was responsible to see that the
fabrication department produced the parts, testified that
the Respondent was loaded with orders for boxcars; that in
March 1974 the fabrication department was working
around the clock 6 and sometimes 7 days per week, though
he did not know how many employees were involved; that
the fabrication department concentrated on producing
parts for the 2 models of boxcars and the model 5 hitch;
and that Respondent ended up subcontracting parts for the
other models of hitches because the volume required was
not as large as for either the model 5's, which had a quota
of 300 per week, or for the boxcars, which had a quota of
16 per day.
On cross-examination Production Manager Saybert, who
had conceded that he did not know how many employees
were involved in the three shifts of the fabrication
department, further admitted that sometimes the depart-
ment worked only two 10-hour shifts, and that when it ran
three shifts it used only 10 employees on the third shift and
there was plenty of unused equipment. Union Agent
Goodrick supplied more definitive information, that was
not contradicted. He testified that, in 1974, whenever the
first two shifts of the fabrication department were at full
capacity each shift had about 100 employees. The third
shift seldom worked, and when it worked it had at most
eight employees. The equipment used on the first two shifts
was unused when the third shift did not operate, and most
of the equipment was unused when the third shift operated
with the skeleton staff of up to eight employees. The
equipment included unused shears, punches, presses for
fabrication, and burning equipment.
D. The Effect on Employment
Like Production Manager Saybert, Industrial Relations
Manager (for the St. Louis plant) Albert Finkelstein came
in with no figures or records on plant employment.
Nevertheless, he testified categorically and misleadingly
(see table below) that there were no layoffs of department
125 welders in the March through May 2, 1975, period (the
strike began May 2) and no layoffs of welders in the
balance of 1975 after the strike (which ended September
22).
Union Agent Goodrick was able to produce layoff and
transfer 3 figures from old records, supplied by Respondent
to the Union as layoffs and transfers occurred, beginning
with September 1974 through November 1975. Goodrick
emphasized that these were probably incomplete and may
have been less than actual totals because of difficulty he
had in locating the papers. The authenticity of the papers
and the figures shown thereon was agreed to by Respon-
employees bumped to make places for the transferees. The net effect of the
transfers and bumping is a reduction in bargaining unit employment.
86
AMCAR DIV., ACF INDUSTRIES
dent, and Goodrick testified from them without the need
for putting the papers into evidence.
As a result it appeared that there were at least the
following layoffs or transfers from department 125:
HoYr Laid off Transferred
9/74 4 welders
1 fitter
10/74 3 welders
1 fitter
11/74 11 welders
1 welder from
Dept. 104 4/
2 fitters
1 tacker
2 drill press
operators
12/74 8 welders 1 fitter
1 fitter
1 tacker
2 drill press
operators from
Dept. 115 5/
1/75 1 welder
1 drill press
operator from
Dept. 117 6/
2/75 1 welder from
Dept. 106 7/
3/75 39 welders 3 welders
1 welder from
Dept. 104 8/
7 fitters
1 fitter from
Dept. 104
4 tackera
6 drill press
operators from
Depc. 115 9/
4/75 1 welder
1 fitter
9/75 22 welders
13 welders from
Dept. 125 who were
working in Dept. 106
1 welder from Dept.
106
4 welders from
Dept. 104 10/
1 fitter
1 fitter from
Dept. 115 11/
10/75 2 welders
1 welder from
Dept. 104 12/
11/75 1 welder from 2 welders
Dept. 104 13/
Recapitulating, at the least there would appear to have
been, in the period from September 1974 through Novem-
ber 1975, layoffs of 113 welders (91 of whom were direct
4 He would have been a potential welder for use in department 125, said
Goodrick. and bumping nghts between departments 104 and 106 and
department 125 are the same.
' According to Goodrick. drill press operators in departments 115 and
117 have done and do drill work on trailer hitch parts.
6 See fn. 5, rupra.
7 See fn. 4, supra.
8 See fn. 4, supra.
" See fn. 5. supra.
0' See fn. 4. supra.
layoffs from department 125, 13 were previously from
department 125 working in a related department when laid
off, and 9 were from related departments) and transfers of
5 department 125 welders; layoffs of 16 fitters (14 of whom
were direct layoffs from department 125, and 2 were from
related departments) and transfer of I department 125
fitter; layoffs of 6 tackers from department 125; and layoffs
of I I drill press operators (2 of whom were direct layoffs
from department 125, and 9 of whom were layoffs from
related departments).
It would also appear that, of the total, 100 layoffs and 4
transfers occurred in the November 1974-April 1975
period, and 46 layoffs and 2 transfers occurred in the
September 1975-November 1975 period.' 4
While it was not clear that all of the employees in
department 125 and the related departments, who were laid
off or transferred to other jobs in those periods of time,
were necessarily engaged in trailer hitch or hitch compo-
nents production, it was clear that among them were the
employees laid off or transferred when the two shifts of 60
employees each, or a total of 120 employees, who were
engaged through most of 1974 in trailer hitch and
components production, were reduced near the end of 1974
by half. (Superintendent Meacham thought it was accom-
plished by practical elimination of the second shift except
for six of eight employees; Union Agent Goodrick said it
was by reducing each shift to half its size.) And clearly
among them was the further group of employees laid off or
transferred at the end of March 1975, when all model 5
production was terminated, reducing the approximately 60
employees engaged in trailer hitch or component assembly
to 5 employees (as both Meacham and Goodrick testified).
Goodrick further testified that these five remaining
employees were welders engaged in welding of replacement
components for various models and that, after the May 2-
September 22, 1975, strike the five welders were reduced to
one.
Union Agent Goodrick testified, without contradiction,
that he inquired of Superintendent Meacham concerning
these major layoffs from the hitch section as they occurred,
and was told each time that sales were off and production
was being reduced. Goodrick said he had no reason to
disbelieve what he was told. In connection with his similar
inquiry when the work force was ultimately reduced to the
one employee, Goodrick was told that sales for hitches had
completely dissolved and there was not any work.
Meantime, as already noted, throughout this period and
starting even earlier in March 1974, Respondent was letting
the described 35 subcontracts for trailer hitch components
and parts and was receiving the completed components
and parts throughout the period and beyond, in some cases
in 1976. Admittedly, Respondent had not notified the
" According to Goodrick, department I I5 fitters, like welders, have the
nght to available work in other departments.
12 See fn. 4, supra.
3 See fn. 4, supra.
14 There was an indication that some of the September 1975 layoffs.
immediately following the return from the strike on September 22, may have
resulted because, in addition to the strikers, all persons in layoff status prior
to the stnke were also called back to insure an adequate work force, and
there were some immediate returns to layoff status in September where it
was thought there was an excess of needed manpower.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of the subcontracting or discussed it or its effect on
the employees in any manner with the Union.
Union Agent Goodrick testified that he first became
aware, in December 1975, that some production subcon-
tracting of hitch components and parts had been going on.
On December 15, 1975, said Goodrick, employee Odie
Daniels, who was a steward in department 125, came to
him and reported that the last and lone hitch welder
working on hitch components, employee John Fredericks,
was being removed from his job on hitch components, and
that, on inquiry by Daniels of Foreman Barker, Daniels
was told that the vice president and general manager of the
division, O'Hara, had decided to "farm out," or subcon-
tract, the work. Employee Daniels confirmed this report in
his testimony. Goodrick asked Daniels for evidence that
subcontracting was going on.
Employee Daniels had acquired some information at the
end of September 1975, after the strike ended September
22, and again in mid-December after his conversation with
Goodrick. To get the information, Daniels had to go
outside department 125 and the hitch section because, as
Superintendent Meacham testified, the components that
came from subcontractors were trucked to a receiving dock
and taken to the jobbing order warehouse. In this
connection, Meacham also testified that the components
when delivered by the subcontractors were already finished
with a prime coat of red lead type primer, in the same
manner and color as Respondent's hitch section finished
components, so that they were not identifiable as prepared
outside the plant unless in the shipping they bore tags
identifying the vendor.
Nevertheless, by going out on the receiving dock and
talking to truckdrivers and examining tags on incoming
merchandise, employee Daniels was able to gather and give
Union Agent Goodrick information concerning several
kinds of trailer hitch components that had been received at
the plant from Kemco Tool, Detroit Tool, and Valley Heat
Treatment Co.'5
Union Agent Goodrick telephoned Industrial Relations
Manager Finkelstein on December 16, 1975, and asked if
Respondent was subcontracting production work in the
hitch section. Finkelstein said he was not aware of any, but
he would investigate.' 6
1, Employee Daniels testified that he gave the information to Goodnck
in December 1975 after Goodrick's request. Daniels also testified that,
although he had seen some of the evidence after the stnke ended September
22. 1975, he had asked Superintendent Meacham about it in connection
with the lack of hitch work, but had not reported at the time to Goodrick
because, said Daniels. while Meacham admitted that there had been some
hitch work contracted out he also said that more would not be contracted
out.
Meacham claimed that Daniels asked him in early 1975, prior to March
1975. about getting back some of the previously subcontracted hitch
components work to keep work in the department. However. I do not credit
Meacham's claim respecting the time, and I credit Daniels' version because,
as already noted. Meacham exhibited a poor memory and needed constant
jogging of it to recall salient facts, and by his own admission. discussed
presiously, was not aware of the subcontracting in early 1975.
Meacham also claimed that he talked to employee Jerome Borders, who
was a union committeeman of the wood car shop, about March 1, 1975,
concerning getting back subcontracted hitch work in department 125; but
Borders testified that he never discussed hitch subcontracting with
Meacham, rather that, in September 1975, he discussed with Meacham
bringing back some of the boxcar work from Respondent's steel plant. to
Goodrick then called Superintendent Meacham and
asked him if any hitch work had been subcontracted.
Meacham told him there had been some subcontracting of
struts and heads for model 5 hitches.
Union Agent Goodrick called again on Industrial
Relations Manager Finkelstein on December 19, 1975, and
Finkelstein said that he learned that some hitch work had
been subcontracted out. Goodrick said the Union expected
compensation to employees for loss of work and earnings,
and Finkelstein told Goodrick there would be no compen-
sation. Goodrick said he would go to the Board with the
matter and filed a charge in this case on December 30,
1975. At the same time, he also made a written demand on
Finkelstein for information on Respondent's subcontract-
ing of the previous 2 years.17
E. Respondent's Duty To Bargain Over
Subcontracting
It was established supra, without dispute, that Respon-
dent neither notified nor bargained with the Union
concerning the decisions to subcontract the trailer hitch
component and parts work set out in the 35 subcontracts
described in General Counsel's Exhibit 11, and that
Respondent neither discussed nor bargained with the
Union about the effect of the subcontracting upon
bargaining unit employees. Likewise, it was established
that the hitch component assembly operations and parts
fabrication that Respondent subcontracted in 1974 and
1975 had been performed by bargaining unit employees,
and that significant reductions in the number of hitch and
components assembly jobs took place in the plant in
November-December 1974, March 1975, and September-
October 1975.
Absent a collective-bargaining contract or, as here,
absent a provision of such a contract on the subject of
consultation and bargaining by the employer with the
Union over subcontracting decisions, the employer is
under a statutory obligation to give notice and bargain
over subcontracting that results in displacement of bar-
gaining unit employees by contractor employees doing the
same work, Fibreboard Paper Products Corp. v. N.LR.B.,
379 U.S. 203, 210 (1964), affg. 138 NLRB 550 (1962);
unless, as set out in Westinghouse Electric Corporation
which it had been moved. For reasons already noted, I do not credit
Meacham's claim. and credit Borders' testimony.
i' Finkelstein claimed that a year earlier, in late 1974 or early 1975. he
had discussed with Shop Steward Daniels bringing back to department 125
subcontracted trailer hitch work to preserve the work of the welders in the
department. Daniels denied ever discussing hitch subcontracting with
Finkelstein, and testified that he talked to Finkelstein in December 1974 or
January 1975 about getting back for the welders in department 125 work on
boxcar parts that had been transferred to the steel plant, work that had
nothing to do with hitches. In view of Finkelstein's faulty recollection of
crucial matters, already demonstrated, and his contradictory assertion, infra,
that he did not become aware of subcontracting of hitch work until after
Goodrick's first call in December 1975, I do not credit Finkelstein's claim,
and credit Daniels' testimony on this subject.
I? Finkelstein conceded the correctness of the interchange between him
and Goodrick, though he thought it occurred a few days earlier, on
December 11, 1975. He added that he told Goodnck that the only
subcontracting concerning trailer hitches was done a year ago (which was
not true, since subcontracting continued with contracts let in 1975. see G.C.
Exh. II1), and that Respondent had no intention of doing any more hitch
subcontracting.
88
AMCAR DIV., ACF INDUSTRIES
(Mansfield Plant), 150 NLRB 1574, 1577 (1965), there is
shown the exonerating effect, cumulatively, of five factors.
Thus, unilateral subcontracting without notice to and
bargaining with the union would be valid if the subcon-
tracting (I) is motivated solely by economic considerations,
(2) comports with the employer's customary business
operations, (3) does not vary significantly in kind and
degree from past practice, (4) has no demonstrable adverse
impact on employees in the unit, and (5) follows an
opportunity by the union to bargain about changes in
existing subcontracting practices at previous general
bargaining sessions.
In this case, Respondent's subcontracting of hitch work
did not comport with Respondent's customary business
operations and past practice, within the meaning of
Westinghouse criteria (2) and (3) above, since bargaining
unit employees had previously performed all of the
fabrication and assembly operations involved in the
production of trailer hitch components as well as final
assembly of the hitches. There was no evidence of any prior
subcontracting of hitch work, though Respondent had
made hitches and their parts and components continuously
since at least the 1960's. The Union had never been
informed, and was not aware, of any prior production
subcontracting by Respondent and, significantly, Respon-
dent had previously established the practice of bargaining
with the Union over subcontracting of maintenance work.
The evidence established that in the triennial contract
negotiations between Respondent and the Union, the
Union had not relinquished its statutory right to bargain
over subcontracting; indeed, Respondent's chief negotiator
had acknowledged Respondent's statutory obligation to
notify and bargain regarding subcontracting in the negotia-
tions preceding the 1972-75 contract, and had suggested
that accordingly there was no need for such a contract
provision, a position the Union accepted. In the negotia-
tions preceding the current 1975-78 contract, the Union
was unaware of any production subcontracting, and
Respondent had failed to inform the Union of the hitch
subcontracting in which it was even then engaged. In these
circumstances, it can hardly be said that the Union had a
reasonable opportunity to bargain about changes in the
existing subcontracting practices, within the meaning of
Westinghouse criterion (5) above.
Moreover, contrary to Respondent's argument, the fact
that the collective-bargaining contract contains a manage-
ment rights or recognition clause (here art. III of C.P. Exh.
I), providing that the methods, processes, and means of
manufacturing are solely and exclusively the responsibility
of the employer, does not constitute a waiver of the
Union's statutory right to bargain over subcontracting,
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UA W) [Gener-
al Motors Corporation] v. N.L.R.B., 381 F.2d 265
(C.A.D.C., 1967), cert. denied 389 U.S. 857 (1967); 18 nor
does compelling an employer to bargain about a decision
to subcontract abridge the freedom of the employer to
11 The court in that case held that though the only purpose of the
subcontracting out of hitherto bargaining unit work was economic, to
reduce costs, the subcontracting had a substantial adverse impact on the
employees (see Westinghouse cnterion (4) above), because while the six
employees affected were transferred to similar jobs elsewhere in the plant,
manage his business. The employer's obligation to bargain
does not include the obligation to agree, but solely to
engage in a full and frank discussion with the collective-
bargaining representative in which a bona fide effort will
be made to explore possible alternatives, if any, that may
achieve a mutually satisfactory accommodation of the
interests of both the employer and the employees. If such
efforts fail, the employer is free to make and effectuate his
decision. Ozark Trailers, Incorporated and/or Hutco Equip-
ment Company and/or Mobilefreeze Company, Inc., 161
NLRB 561, 568 (1966); Town & Country Manufacturing
Company, Inc., Town & Country Sales Company, Inc., 136
NLRB 1022, 1027 (1962), enfd. 316 F.2d 846 (C.A. 5, 1963).
Respondent's contention is that the hitch component
subcontracting was economically motivated and necessary
because Respondent did not have the capacity to produce
at the same time both the Model 5 hitch and the
components for the earlier models in the period of its
undisclosed subcontracting. The record refutes this argu-
ment.
Respondent had the demonstrated capacity to produce
several complete hitch models simultaneously, as well as
the components for other models. It had expanded its hitch
production facilities, including space and equipment, prior
to embarking on the bulk of the series of subcontracts. The
equipment was easily moveable, and was interchangeable
and adaptable for use on all models of hitches and
components except for the jigs; but Respondent had all of
the jigs at hand for all models and components. Indeed,
Respondent loaned its own hitch production equipment to
subcontractors for their use in assembly of subcontracted
components. There was evidence of additional space and
equipment (both for fabrication and assembly) that was
not used, and of neglect or failure to make certain
rearrangements of space, equipment, and time that would
have provided greater facility and capacity for greater
simultaneous production of the components of the several
models as well as completed model 5 hitches. Respondent
made no argument about the availability of manpower to
do all of the hitch-related work at the plant with bargaining
unit employees, and there could be none, considering the
substantial reductions in the number of hitch-related jobs
and the corresponding layoffs and transfers of unit
employees, and considering also Respondent's demon-
strated ability to operate two or three shifts in the hitch
section. All of these facts, in combination, suggest the lack
of economic necessity for the hitch component subcon-
tracting that took place and an absence of such necessity
within the meaning of Westinghouse criterion (1).
With regard to Westinghouse criterion (4), Respondent's
subcontracting of the hitch work had a significant adverse
and detrimental impact upon the employees of the
bargaining unit. In the period in which Respondent
engaged in the subcontracting of hitch work and the receipt
of subcontracted components, the bargaining unit employ-
ees engaged in hitch assembly and production underwent
substantial layoffs, plus transfers to other work, that in
the change diminished by six the whole number of jobs performed by the
bargaining unit, and the employer's failure to give notice and consult with
the union was a refusal to bargain in violation of Sec. 8(aXS) and (I) of the
Act, 381 F.2d at 266.
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
succession reduced their number from approximately 120
to 60 to 5 to 1. While the drop in orders for model 5 was no
doubt the cause of the elimination of many of the jobs,
illustrative of the adverse impact of the subcontracting was
the situation in November-December 1974. In that period
when approximately 60 hitch section employees were either
laid off or transferred, Respondent entered into at least six
hitch component subcontracts involving a total of more
than 5,550 man-hours of work.19
Even assuming that Respondent's alleged economic
motivation for subcontracting was legitimate, that would
not have excused Respondent from the duty to notify and
bargain with the Union where, as here, the subcontracting
diminished the number of jobs performed by the bargain-
ing unit employees, International Union (UA W) v.
N.L.R.B., supra at 266; Brown Transport Corp., 140 NLRB
954, 956-957 (1963), enfd. (remedy modified) 334 F.2d 243
(C.A. 5, 1964); Jack L. Williams, D.D.S., d/b/a Empire
Dental Co., 211 NLRB 860, 867-868 (1974).
The Board in Westinghouse said that the criteria,
exempting an employer from the obligation to bargain over
subcontracting, must be met cumulatively, 150 NLRB at
1477; perhaps, as was said later, "more or less cumulative-
ly," Empire Dental Co., supra at 867, may be more accurate.
However, in this case, none of the criteria has been met.20
Hence, evaluating the record as a whole, Respondent
had a duty to notify and bargain with the Union before
subcontracting its hitch-related work, and had a continuing
duty to bargain with the Union over the effects of that
subcontracting on the bargaining unit. By its failure to
satisfy these obligations, Respondent violated Section
8(a)(5) and (1) unless, as considered below, the violations
were barred by the statute of limitations.
F. The 10(b) Limitation was Tolled
Respondent contends that since the original charge in
this case was filed with the Board on December 30, 1975,
any complaint and violation thereunder based on subcon-
tracting and failure to notify and bargain about it that
occurred prior to June 30,1975, is barred by the limitation
of Section 10(b) of the Act providing that "no complaint
shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge."
At the start of the hearing, the complaint was limited to
allegations of violation within the calendar 6-month period
prior to the filing of the charge. Thus, paragraph 8 of the
complaint alleges that since on or about July 1, 1975,
Respondent failed and refused to bargain with the Union
by, unilaterally and without prior notice and bargaining,
subcontracting bargaining unit production work, and
failing and refusing to negotiate and bargain with the
Union concerning the effects of such subcontracting on the
employees of the bargaining unit.
m1 See G.C. Exh. II, item 10, let November 5, 1974, 241 estimated man-
hours; item I, no. 3, let December 4, 1974, 963 estimated man-hours; item 2,
no. 3, let December 4, 1974, 2,220 estimated man-hours; item 3, no. 2, let
December 3, 1974, 1,297 estimated man-hours; item 7, no. 2, let December
26, 1974, 544 estimated man-hours; item 9, let December 27, 1974, 289
estimated man-hours-total 5,554 estimated man-hours.
20 Respondent rests its claim for exemption from the statutory duty, to
Midway through the hearing, after my enforcement of,
and Respondent's compliance with, General Counsel's
subpena for information concerning the subcontracting,
General Counsel and the Union learned, for the first time,
of the nature and extent of Respondent's subcontracting
for trailer hitch components and parts. Up until then the
disclosure had been refused by Respondent. It was
disclosed that 35 subcontracts had been let, the first 2 in
March and June 1974, the last on August 26, 1975, the bulk
or 29 between July I and December 31, 1974, and the
remaining 3 in January, March, and May 1975, respective-
ly. It was also disclosed that completion and deliveries of
the subcontracted components and parts continued
through the second half of 1974, 1975, and 1976. (The
principal layoffs and transfers of hitch section and hitch
work-related employees occurred in the last part of 1974
and early 1975, with some additional layoffs and transfers
in late 1975.)
Following these disclosures General Counsel moved to
amend the complaint to backdate paragraph 8, alleging the
violation since on or about July 1, 1974 (in place of July 1,
1975). I1 reserved decision, which I resolve now in light of
the record made and the applicable law.
I agree with General Counsel that, not only was the
Union unaware of the subcontracting while it went on, but
that Respondent concealed the subcontracting from the
Union. Indeed, the concealment was so complete that even
Respondent's man in charge of hitch and hitch component
production, Superintendent Meacham, was unaware that it
was going on, and only learned about it later. As
Production Manager Saybert indicated, management chose
not to let the Union know as the subcontracts were let.
And, in the contract negotiations for the current collective-
bargaining contract, that began in March 1975 and
continued through the strike of May-September 1975,
Respondent did not inform the Union of its hitch
subcontracting. When in 1974 and 1975, hitch section and
related employment dropped, Respondent told the Union
only that orders were decreasing.
Concealment from the plant employees affected was not
difficult, because delivery and storage of the subcontrac-
tor's completed trailer hitch components were made at the
jobbing orders warehouse, a part of the plant separate from
department 125. Department 125 was where Respondent
operated its section for hitch and hitch component
assembly. By delivery of the subcontracted components
and parts to the jobbing orders department, which was a
sales department for parts and components of hitches and
boxcars, the subcontracted items were obviously destined
for direct sales to customers outside the plant, or for
stockpiling awaiting such orders, rather than for use in the
hitch section. In any event, the subcontracted components
were delivered to Respondent in a finished form that was
indistinguishable from components made by Respondent's
hitch section.
give notice and bargain over subcontracting, on cases where the Board
found no loss of jobs or other substantial adverse impact upon unit
employees' terms and conditions of employment, e.g., Superior Coach
Corporation, 151 NLRB 188 (1965); General Tube Company, 151 NLRB 850
(1965); The Fafnir Bearing Company, 151 NLRB 332 (1965); Union Carbide
Corporation, Carbon Products Division, Clarksburg Works, 178 NLRB 504
(1969). These cases are not apposite to the situation in this case.
90
AMCAR DIV., ACF INDUSTRIES
Actual knowledge that Respondent was doing some
hitch component subcontracting came, and was first
chargeable to the Union, at the end of September 1975,
after the over-4-month strike ended. At that time, by
chance, Union Steward Daniels, outside his department
125, came across some components tagged with the names
of subcontractors and made inquiry of Superintendent
Meacham. Meacham admitted to Daniels that some
subcontracting had been done but assured him it was over
and that the work would come back to the hitch section of
department 125.21 Daniels did not report the information
to the Union at the time. However, in mid-December 1975,
he did report to the Union when he learned from his
foreman that Respondent planned to close down the
remainder of its hitch assembly and component assembly
work and subcontract out any needs. When Union Agent
Goodrick confronted Industrial Relations Manager Finkel-
stein on the subject, Finkelstein denied any knowledge of
past subcontracting and only admitted later that there had
been some, after Goodrick had already obtained a partial
admission from Superintendent Meacham. Even then, in
late December 1975, Respondent continued to be secretive
and refused to supply the actual information, a condition
that continued into the middle of the hearing of the case in
mid-1976. In my view there was deliberate concealment by
Respondent of the subcontracting from the Union, particu-
larly at the times in 1974 and 1975 when knowledge would
have counted most in terms of an effective union right to
discuss with Respondent, and attempt to persuade it of,
alternate means of doing the work before it was subcon-
tracted out.
It is true, as Respondent argues, that normally a
complaint predicated on unfair labor practices that
occurred before the 6-month limitation period is time-
barred, Local Lodge No. 1424, International Association of
Machinists, AFL-CIO, et al. [Bryan Manufacturing Co.] v.
N.LR.B., 362 U.S. 411, 416-417 (1960). But Bryan
recognized, 362 U.S. at 429, fn. 19, that adoption of the 6-
month period of limitations was criticized by opponents of
the legislation as the shortest statute of limitations known
to the law and was resisted on the ground that it gave
"unjust assistance to employers or unions which commit
those types of practices which are easily concealed and
difficult to detect" (citing the pertinent legislative history),
and that, in the case before it, "It need hardly be pointed
out that we are not dealing with a case of fraudulent
concealment alleged to toll the statute."
As pointed out in Atlantic City Electric Company v.
General Electric Company, 312 F.2d 236, 239 (C.A. 2, 1962),
the Supreme Court has from earliest times held that "all
federal limitation statutes are subject to the doctrine of
fraudulent concealment, so that . . . 'the statute does not
begin to run until the fraud is discovered by, or becomes
known to, the party suing.' "
The doctrine is part of an equitable principle applicable
to statutes of limitations, Glus v. Brooklyn Eastern District
Terminal, 359 U.S. 231, 232-234 (1959), holding that lulling
21 Respondent's claim that at least by early 1975 two employees, Union
Steward Daniels and Union Committeeman Borders, knew about the
subcontracting was based on discredited testimony of Superintendent
Meacham and Industrial Relations Manager Finkelstein, discussed supra.
22 See also N.L.R.B. v. Shawnee Industries. Inc.. Subsidiary of Thiokol
of the affected party into a false sense of security tolled the
limitation provision of the Federal Employer's Liability
Act. And silence, even if it were not active deceit, may be
sufficient to toll the limitations period of the applicable
statute, J. Ralph Saylor v. Thayer Lindsley, 391 F.2d 965,
970(C.A.2, 1968).
In keeping with these principles, the Board has consist-
ently held that the 6-month period of limitations prescribed
by Section 10(b) does not begin to run on an alleged unfair
labor practice until the person adversely affected is put on
notice, actually or constructively, of the act constituting the
unfair labor practice, Wisconsin River Valley District
Council of the United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Skippy Enterprises, Inc.), 211 NLRB
222, 227 (1974), involving an 8(bXI)(B) violation where the
employee was unaware of the union fine levied before the
calendar 10(b) period and became aware within the period
when a court suit to collect the fine was filed.2 2
The rule has been applied in 8(aX5) and (I) cases
involving, as here, undisclosed subcontracting. Avila Group,
Inc., 218 NLRB 633, 639 (1975), holding that the 10(b)
limitation did not run until the union became aware, and
involving unilateral changes in working conditions; Rus-
sell-Newman Manufacturing Company, Inc., 167 NLRB
1112, 1115 (1967), enfd. 406 F.2d 1280 (C.A. 5, 1969),
holding that the 10(b) limitation did not begin to run until
the employees were informed of the change; Southeastern
Michigan Gas Company, 198 NLRB 1221 (1972), affd. 485
F.2d 1239 (C.A. 6, 1973), holding that the 10(b) limitation
did not begin to run until the employees were made aware
of the discontinuance of benefits.
The rule is particularly apt where employers are legally
obligated to give notice and bargain over subcontracting.
Unless the 6-month statute of limitations is tolled, absent
notice to or knowledge of the union concerning the
subcontracting-which, as seen here, may be readily
concealed from the union-employers can avoid the legal
obligation to bargain over subcontracting by arranging for
receipt of the subcontracted materials more than 6 months
after subcontracts have been let, thereby avoiding discov-
ery of the subcontracting and responsive action by the
concerned union within the 6-month calendar period.2 3
Accordingly, because Respondent concealed, and the
Union had no notice of, the hitch components and parts
subcontracting by Respondent, or no actual or construc-
tive knowledge of any part of it until the end of September
1975, I find that the 6-month period of limitations under
Section 10(b) of the Act did not commence to run against
the Union until the end of September 1975. The Union's
charge of December 30, 1975, was timely filed in relation to
the undisclosed subcontracting in 1974 and 1975, and I will
grant General Counsel's motion to amend and backdate
paragraph 8 of the complaint to July 1, 1974.
Respondent's violation of Section 8(aX5) and (1), for
failure to give notice to and bargain with the Union
concerning its hitch component and parts subcontracting
Chemical Corporation, 333 F.2d 221. 224 (C.A. 10. 1964). where the court
agreed with the Board that the 10(b) limitation period begins when the facts
of a discriminatory hinng policy first became known to an applicant.
23 In the case at bar, a majority of the hitch component subcontracts
were not completed within 6 months of their being let.
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since July 1, 1974, was not barred by the limitation period
of Section 10(b) of the Act.24
G. Respondent's Obligatiohs To Supply
Subcontracting Information
After Union Agent Goodrick became aware in Decem-
ber 1975 that there had been some hitch-related subcon-
tracting by Respondent, he made a request of Respondent
in writing on December 30, 1975, (G.C. Exh. 2), for
information covering the subcontracting of bargaining unit
work during the previous 2 years.
In meetings and by correspondence thereafter in early
1976, (see G.C. Exhs. 3 and 5), Goodrick narrowed the
request to production subcontracting (as distinct from
maintenance subcontracting); and asked for the number of
man-hours required to perform the subcontracted projects,
and the dates for completion and utilization of the
subcontracted work.
As Lawrence Heptig, Respondent's director of labor
relations, conceded, Respondent first refused to furnish
any hitch subcontracting information and, after the filing
with the Board of a charge on the subject by the Union,
ultimately provided the Union on March 12, 1976, with
only a reference to six hitch component contracts com-
pleted or still open in the period September 22, 1975, to
January 22, 1976.25 The result was that, as later revealed,
the Union was given no inkling of the bulk of the hitch-
related subcontracting that took place in 1974 and 1975
and no information whatsoever on the number of man-
hours needed to perform any of the subcontracted hitch-
related work or on the dates of delivery or use of the
components or parts.
The Union has a statutory right, arising out of the
employer's duty to bargain in good faith,2 6 to obtain from
Respondent upon appropriate request information relevant
and reasonably necessary to the Union's discharge of its
duties and responsibilities in representing the employees of
the bargaining unit. These duties and responsibilities relate
to the Union's functions in contract negotiations, and in
labor-management relations during the term of a contract,
which include the processing of grievances and the
bringing of charges under the Act. It was a violation of
Section 8(a)(5) and (1) of the Act for Respondent to refuse
to furnish the Union with the subcontracting information
that was necessary to the proper discharge of its duties as
bargaining representative. N.L.R.B. v. Acme Industrial Co.,
385 U.S. 432 (1967).
24 General Counsel has suggested that, alternatively, even without tolling
the statute of limitations, Respondent's subcontracting of the hitch
component work constituted an actionable breach of the Act because it was,
in practical effect, a single course of conduct, effectuating a complete
elimination of all trailer hitch-related bargaining unit jobs. Hence, though
the subcontracting decisions, and the more significant aspects of their
impact on the unit, fell outside the 6 months immediately prior to the filing
of the December 30, 1975, charge, the performance by the subcontractors
continued into and throughout that 6-month period. As a result, Respon-
dent's unilateral subcontracting continued to have an impact on the
bargaining unit, and Respondent's statutory obligation to bargain over the
subcontracting remained in effect and was breached in the 6-month
calendar period preceding December 30, 1975. I have not found it necessary
to deal with this alternative theory.
25 Labor Relations Director Heptig said he picked September 22, 1975,
as the starting date, because it matched the starting date of the current
In this connection, the subcontracting information was
properly requested by the Union, and was relevant2 7 and
essential to intelligent and proper performance of the
Union's representative obligations and of its duty to
protect its statutory right to bargain over Respondent's
subcontracting of bargaining unit production work. With-
out the information concerning the subcontracting, includ-
ing the number of man-hours required to perform it and
the dates of completion and utilization of the subcontract-
ed hitch components, the Union could not accurately
evaluate the effect and impact of Respondent's subcon-
tracting on the bargaining unit, Vertol Division, Boeing
Company, 182 NLRB 421, 425-426 (1970); and, in that
regard, the Union was entitled to the subcontracting
information for the requested 2-year period, Trustees of
Boston University, 210 NLRB 330, 333 (1974).
Respondent violated Section 8(a)(5) and (1) of the Act by
its initial refusal to provide any, and by its delay and only
partial compliance in providing some, of the required
subcontracting information to the Union. Utica Observer-
Dispatch, Inc., 111 NLRB 58, 63-64 (1955); Ohio Medical
Products, Division of Air Reduction Company, Inc., 194
NLRB 1, 6 (1971). The fact that Respondent ultimately
furnished the pertinent material under subpena at the
hearing does not render moot or excuse the violation.
H. Respondent's Obligation To Supply Grievance-
Related Information
Unrelated to the violations growing out of the subcon-
tracting was the discharge of employee Jerome Ruffin.
Employee Ruffin was accused by Respondent of having
falsified two sickness and accident claims. Ruffin denied
guilt and reported to Union Agent Goodrick, on March 1,
1976, that he had been suspended subject to discharge on
February 27, 1976. Because Ruffin denied guilt of the
alleged falsification, Goodrick filed a grievance on his
behalf with Respondent.
On March 5, 1976, Industrial Relations Manager
Finkelstein held a meeting in his St. Louis plant office,
where employee Ruffin and Union Agent Goodrick,
among others, attended. Finkelstein read the charge
against Ruffin, and Goodrick entered a denial. Goodrick
asked for and was given copies of the two alleged claims
made by Ruffin. He asked for copies of the returned checks
relating to the claims and was told they were in New York
City. He asked if there was a handwriting analysis of the
signatures on the claims and checks. Finkelstein said that
collective-bargaining contract and therefore made the job of giving the
information "manageable." Respondent in its bnrief claimed that the Union
wanted the subcontracting information only for the purpose of contract
negotiations in 1978, when the present contract expires; hence the refusal to
supply it and limiting the pretrial response to information since September
22, 1975. The claim was without substance, as made clear in Goodrick's
December 1975 exchange with Finkelstein demanding a compensatory
remedy for the past violations and the Union's confirmation in writing of
January 28, 1976, G.C. Exh. 4, demanding bargaining about the past
subcontracting and its effect on the bargaining unit employees.
z6 The Timken Roller Bearing Company v. N.L.R.B., 325 F.2d 746. 751
(C.A. 6, 1963), cert. denied 376 U.S. 971 (1964).
27 Relevance is determined under a broad discovery-type standard based
on the probability that the desired information is relevant, N.LR.B. v.
Acme, 385 U.S. at 437-438; Curriss-Wright Corporation Wright Aeronautical
Division v. N. LR. B., 347 F.2d 61, 68-69 (C.A. 3, 1965).
92
AMCAR DIV., ACF INDUSTRIES
Wells Fargo had done such an analysis for Respondent.
Goodrick asked for a copy of, or to be shown, the analysis.
Finkelstein said the analysis was in New York City.
Finkelstein then dealt with the grievance by converting the
suspension of Ruffin into a discharge, effective forthwith.
On March 8, 1976, Goodrick asked Finkelstein again for
copies of the checks and the handwriting analysis.
Finkelstein said he would supply copies of the checks but
that Industrial Relations Director Heptig had ordered that
the Union could not have the handwriting analysis.
Goodrick told Finkelstein that Ruffin continued to deny
signing the claims and that the Union needed the analysis
to help determine the merit of employee Ruffin's position
and whether to proceed with arbitration of his grievance.
Union Agent Goodrick repeated this statement in a
confrontation with Industrial Relations Director Heptig 3
days later on March 11. Heptig, who said that he had
ordered the analysis and had it in his possession in
February 1976, testified that he understood that the Union
wanted to see the handwriting analysis in order to decide
whether or not to go to arbitration with Ruffin's grievance.
Nevwrtheless, said Heptig, he refused to let the Union see it
or have a copy of it, and he told Goodrick that Respondent
intended to use the analysis in the arbitration if the Union
pursued arbitration.
The Union protected Ruffin's right to arbitration by
giving timely notice, but the arbitration had not proceeded
at the time of the hearing, apparently for lack of agreement
on an arbitrator. Nevertheless, the evidence was clear that
Respondent had obtained and used the handwriting
analysis prior to employee Ruffin's discharge on March 5,
1976, and intended to use the analysis against Ruffin
should an arbitration proceeding be held, but refused to
permit the Union to see the analysis.
"The grievance procedure is ... a part of the continuous
collective bargaining process." United Steelworkers of
America v. Warrior & Gulf Navigation Co., 363 U.S. 574,
581 (1960). And it is the duty of the employer to supply
such information as may be potentially relevant and useful
to the Union's effective and intelligent evaluation and
processing of grievances, regardless of the actual merits of
the grievance as might later be determined in an arbitration
proceeding, N.LR.B. v. Acme Industrial Co., 385 U.S. at
438. As the Court said, such requirement upon the
employer is "in aid of the arbitral process. Arbitration can
function properly only if the grievance procedures leading
to it can sift out unmeritorious claims. For if all claims
originally initiated as grievances had to be processed
through arbitration, the system would be woefully overbur-
dened. Yet, that is precisely what the respondent's
restrictive view would require. It would force the union to
take a grievance all the way through to arbitration without
providing the opportunity to evaluate the merits of the
claim." Ibid.
Moreover, the Union's right to the information is not
defeated because the Union might have acquired similar
information through an independent course of investiga-
tion, as Respondent appears to suggest, The Kroger
Company, 226 NLRB 512 (1976).
Accordingly, since the handwriting analysis is relevant to
the Union's evaluation of the merits of employee Ruffin's
grievance, and Respondent has used it to substantiate its
discharge decision and intends to use it similarly if the
Union proceeds to arbitration, the Union was legally
entitled to a copy of the analysis. Respondent's refusal to
supply it was a violation of Section 8(a)(5) and (I) of the
Act.
CONCLUSIONS OF LAW
1. By unilaterally subcontracting bargaining unit pro-
duction work on trailer hitch components and parts
without prior notice to the Union and without affording
the Union an opportunity to bargain over the subcontract-
ing decisions or the effects of the subcontracting on
bargaining unit employees, Respondent has engaged in
unfair labor practices within the meaning of Section 8(aX)(S)
and (1) of the Act.
2. By failing and refusing to furnish the Union the
information reasonably requested and relevant to the
Union's discharge of its responsibility concerning Respon-
dent's subcontracting of said production work, Respondent
has engaged in an unfair labor practice within the meaning
of Section 8(a)(5) and (I) of the Act.
3. By refusing to provide the Union with a copy of the
handwriting analysis which Respondent caused to be
prepared with regard to its discharge of employee Jerome
Ruffin and which was relevant to the Union's processing of
the grievance on his account, Respondent has engaged in
an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act.
4. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In respect to Respondent's unlawful unilateral subcon-
tracting of trailer hitch related work, Respondent will be
ordered to bargain with the Union over its continuing
effects on the bargaining unit, and to cease and desist from
further subcontracting without prior notice to and bargain-
ing with the Union. In order to restore the status quo ante,
Respondent will be required to:
(1) Reinstitute its subcontracted operations to the extent
it has or will have customer orders for sale or repair of
trailer hitches or components or parts, or uses or will use
such products in its completion or repair of railroad
flatcars. In this connection, it is noted that the subcontract-
ing did not appear to be motivated by economic reasons
and there should be no material hardship on Respondent,
since it also appears that Respondent has all of the
equipment, and the space, to reactivate its hitch assembly
section and any related parts fabrication.
(2) Reinstate to their former or substantially equivalent
positions employees discharged or laid off as a result of the
hitch-related subcontracting and make them whole for any
loss of earnings. Backpay shall be based on earnings which
each such employee would have normally received between
the date of discharge or layoff and the date of reinstate-
ment, in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, 291-293 (1950), with interest at 6 percent in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Give notice of, and bargain over, future subcontract-
ing.2 8
In respect of Respondent's refusals to supply the Union
with the lawfully requested information concerning sub-
contracting and the processing of the Ruffin grievance,
Respondent will be ordered to cease and desist from such
refusals and, affirmatively, to comply with such requests,
and in that connection to supply the Union with a copy of
the handwriting analysis concerning employee Ruffin.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 29
Respondent AMCAR Division, ACF Industries, Inc., St.
Louis, Missouri, its officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Unilaterally subcontracting bargaining unit work
without prior notice to and bargaining with the Union.
(b) Failing or refusing to supply the Union with lawfully
requested information concerning subcontracting, process-
ing of grievances, and like matters pertaining to the
Union's participation in administering the collective-bar-
gaining contract or in collective-bargaining negotiations.
(c) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Reinstate the trailer hitch and hitch components
assembly operation and parts fabrication previously per-
formed by its employees represented by the Union, to the
extent that Respondent has customer orders, or will have
customer orders, or stockpiles, for sale or repair of trailer
hitches or components or parts, and uses or will use or
stockpiles for use such products in its completion or repair
of railroad flatcars.
(b) Offer to those employees who were discharged or laid
off as a result of the subcontracting of the trailer hitch
related work immediate and full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each
of them whole for any loss of pay suffered by him in the
manner set forth in the section above entitled "The
Remedy."
(c) Bargain collectively with the Union as to any
continuing unremedied effects on the bargaining unit as a
result of the unlawful subcontracting of the hitch-related
work not remedied by the preceding subparagraphs (a) and
(b) of this paragraph 2, with respect to wages, hours, and
other terms and conditions of employment.
(d) Give notice to the Union and bargain collectively
with it concerning any future subcontracting of work
performed by bargaining unit employees, unless specifical-
ly provided otherwise by the collective-bargaining contract
between the Union and Respondent.
(e) Comply with lawful requests of the Union for
information concerning subcontracting, processing of
grievances, and like matters pertaining to the Union's
participation in administering the collective-bargaining
contract or in collective-bargaining negotiations.
(f) Upon request, furnish the Union with a copy of the
handwriting analysis of employee Jerome Ruffin.
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, personnel
records and reports, and all other records necessary to
ascertain the amount of backpay due and other redress
under the terms of this Order.
(h) Post at its St. Louis, Missouri, plant copies of the
attached notice marked "Appendix." 30 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(i) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
28 On the restoration of the status quo ante, see Fibreboard Paper Products
Corp., 138 NLRB at 554-555, affd. 379 U.S. at 208, 215-217; Town &
Country Manufacturing Company, Inc., 136 NLRB at 1028 31; Florida-Texas
Freight, Inc., 203 NLRB 509, 511 (1973), enfd. 489 F.2d 1275 (C.A. 6, 1974).
29 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
:.o In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing, that we violated the National Labor Relations
Act:
WE WILL NOT, unilaterally, and without prior notice
to and bargaining with the Union, subcontract bargain-
ing unit work.
WE WILL NOT fail or refuse to supply the Union with
lawfully requested information concerning subcontract-
ing, processing of grievances, and like matters pertain-
ing to the Union's participation in administering the
collective-bargaining contract or in collective-bargain-
ing negotiations.
WE WILL NOT in any like manner interfere with,
restrain, or coerce you in the exercise of your rights
under Section 7 of the National Labor Relations Act.
94
AMCAR DIV., ACF INDUSTRIES
Because the Board found that we unlawfully subcontracted
bargaining unit production work and unlawfully failed and
refused to honor proper union requests for information
covering the subcontracting and covering an unrelated
grievance concerning employee Jerome Ruffin,
WE WILL reinstate the trailer hitch and hitch
components assembly operation and parts fabrication
previously performed by bargaining unit employees, to
the extent that we have customer orders, or will have
customer orders, or stockpile, for sale or repair of
trailer hitches or components or parts, and use or will
use or stockpile for use such products in completion or
repair of railroad flatcars.
WE WILL offer to those employees who were
discharged or laid off as a result of the subcontracting
of the trailer hitch related work immediate reinstate-
ment to their former or like jobs and give each of them
backpay with interest for any loss of earnings suffered.
WE WILL bargain with the Union as to any
continuing unremedied effects of the unlawful subcon-
tracting on the bargaining unit employees not remedied
by reinstatement of the hitch work and reinstatement of
the discharged or laid-off employees with backpay.
WE WILL give notice to the Union and bargain
collectively with it concerning any future subcontract-
ing of work performed by bargaining unit employees,
unless it is otherwise specifically provided in the
collective-bargaining contract.
WE WILL comply with lawful union requests for
information concerning subcontracting, processing of
grievances, and like matters pertaining to the Union's
participation in administering the collective-bargaining
contract or in collective-bargaining negotiations.
WE WILL furnish to the Union, upon its request, a
copy of the handwriting analysis of employee Jerome
Ruffin.
AMCAR DIVISION, ACF
INDUSTRIES, INC.
95