General Electric Co.

National Labor Relations Board - Board Decisions

Feb 12, 1979

240 N.L.R.B. 703 (N.L.R.B. 1979)

GENERAL ELECTRIC COMPANY 703
General Electric Company and Local 647, Internation-
al Union of Automobile, Aerospace & Agricultural
Implement Workers of America, UAW. Case 9
CA- 10959
February 12, 1979
DECISION AND ORDER
BY MEMBERS JENKINS M RPHY. ANI) TR ISDAI I
On September 21, 1978, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Reltions Act, as amended, the National Labor Rela-
tions Board adopts as Order of the Administrative
Law Judge and hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
M.MBER JENKINS. concurring
Although I agree with the Administrative Law
Judge that Respondent's conduct in letting several
contracts for carpet cleaning in late 1976 without no-
tice to the Union was not violative of Section 8(a)(5)
of the Act, I do not embrace entirely his approach to
this case. The Administrative Law Judge concluded
that this case turns on the application of Westing-
house Electric Corp.. 150 NLRB 1574 (1965). to the
instant facts. While venturing an opinion that the
Board did not intend that the several factors dis-
cussed in Westinghouse establish a per se rule to be
followed in determining whether or not subcontract-
ing without consultation or contractual waiver of
consultation is lawful, the Administrative Law Judge
found that in any event "the Employer's action and
factual background comply with such Westinghouse
criteria."
The Administrative Law Judge described such actors or criteria as (I)
whether the subcontracting was motivated solel b economic concerns. 2)
comported with the Emploer's customary business operations and 'th
past practice. (3) had no demonstrable adverse impact on unit emplosces.
and (4) whether the Union had an opportunit! to hargain about changes i
existing subcontracting praciices at pres uS hbargaining sessions.
240 NLRB No. 90
holuse, xupra at 1577--78. Eihrehoard Paper Products
did not establish "a hard and fast rule of mechanical
application making subcontracting a per se viola-
tion." T'hus the Supreme Court in Fibrehoard did not
purport to expand the scope of mandatory bargain-
ing and specifically noted that its decision therein did
not "encompass other forms of 'contracting out' or
subcontracting' which arise daily in our complex
economy." 379 U.S. at 215.
The record testimony in the instant case estab-
lishes that in late 1976 Respondent became aware of
a then relatively new process of steam extraction
cleaning that was advertised as permitting a mor:
thorough cleaning of heavily soiled carpets than was
theretofore possible. Respondent's manager of plant
engineering and utilities, who testified that one of his
duties is to investigate the utility of such new pro-
cesses, decided that steam extraction was worth an
experiment and let several contracts for carpet clean-
ing commencing in October 1976.' As found by the
Administrative Law Judge. the record evidence. in-
cluding admissions by the Charging Party's own wit-
nesses as well as testimony by Respondent's officials.
establishes that this subcontracting had little or no
impact on bargaining unit employees represented by
the Charging Party. Thus, not only is there no evi-
dence of layoffs occasioned by the subcontracting
but, insofar as this record shows. bargaining unit em-
ployees continued to do the run-of-the-mill carpet
cleaning jobs as they always had.
With the facts in this posture I find it unnecessary.
if not unwise, to attempt to squeeze the record in this
case into the IW'estinghouse mold. Thus here, unlike
'esting/house. there is no evidence that contracting
out of unit work "has been a continuing phase of
Respondent's method of operation" 4 over a substan-
tial period of time. Nor does the fact that Respon-
dent has always contracted out a very few major
maintenance jobs. e.g., !arge scale snow removal,
either establish such a history or practice. or support
a finding that the Charging Party was on notice
about recurring subcontracting of unit work and
hence had an opportunity to bargain over the issue at
general negotiating meetings.
In sum, although subcontracting of the sort in-
volved here could conceivably have a potential for
abuse, for example where an employer might attempt
to reduce unit work by a strategy of subcontracting
unit work piecemeal, that is not the case here. On this
B- 1ah t ion IfA.la, bnir q /tii4,/ 1.it.4 nilut, Sitel'urkeru ,1 4nttr-
i, 4t-. ( 0 /fhrehoard P',twr Prod,t ( -pft,,./ vn 1, R , 179
S. 2)03 19t4).
;s dJescrlhd in delail in the Adci llnstnr;lic la Judge', [)ectllon. the
lea i T rf ,lradli lul Ilethoid of clelning requir the ll IIof re l.t lis cl Lulhber-
siine nd e\cnt etlpilient itI p sse ed h\ Respoindent
4 150 NIRB at 1574
GENERAL ELECTRIC COMPANY 3
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, and primarily in view of the absence of evi-
dence of impact on unit employees, I am satisfied
that the letting of contracts for carpet cleaning fell
within the category of "other forms" of subcontract-
ing not requiring notice referred to by the Court in
Fibreboard. Accordingly, I join my colleagues in dis-
missing the 8(a)(5) complaint.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on December 20, 1977, in Cincinnati, Ohio.
The charge was filed on January 10, 1977. The complaint
in this matter was issued on June 2, 1977.The issues con-
cern whether Respondent has violated Section 8(a)(5) and
(I) of the Act by the subcontracting of certain carpet clean-
ing work.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
General Electric Company, Respondent, is a New York
corporation engaged in various States of the United States
in the production, manufacture, and sale of aircraft en-
gines, electrical appliances, and other products. Respon-
dent's facility at Evendale, Ohio, is the only location in-
volved in this proceeding.
During a representative 12-month period, Respondent
sold goods and materials valued in excess of $50,000, and
caused them to be shipped directly from its Evendale,
Ohio, facility to points outside the State of Ohio.
As conceded by Respondent and based upon the fore-
going, it is concluded and found that Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Local 647, International Union of Automobile, Aero-
space & Agricultural Implement Workers of America,
UAW, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
IThe facts are based upon the pleadings and admissions therein.
I11. THE UNFAIR LABOR PRACTICES
A. Preliminary Facts 2
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and service employees employed at the
Respondent's Evendale, Ohio, facility who are includ-
ed in the Bargaining Unit as determined by the Na-
tional Labor Relations Board in Cases 9-RC-488 and
9-RC-1676, excluding all other employees as defined
by the Board in Cases 9-RC-470, 9-RC-471, 9-RC-
2024 and 9-RC-2092.
Included in the above-described appropriate collective-
bargaining unit are employees described in this case as ser-
vice and support employees having a R-12 job rate sym-
bol.
At all times material herein, and continuing to date, the
Union has been, and is now, the certified representative for
purposes of collective bargaining of Respondent's employ-
ees employed in the unit described above, and by virtue of
Section 9(a) of the Act it has been, and is now, the exclu-
sive representative of all employees in said unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
The Union and Respondent have entered into a series of
collective-bargaining agreements covering the wages,
hours, terms and conditions of employment of the employ-
ees in the unit described above, the most recent agreement
being effective by its terms from August 8, 1976, through
July 15, 1979.
B. The Respondent's Work Force
The office area and office cleanup force
Respondent employs approximately 11,000 employees at
its Evendale manufacturing facility. Some of the employees
are represented by the IAM, some of the employees are
represented by the UAW, and the facts are not clear
whether any of the nonsupervisory employees are unrepre-
sented. Further, the facts do not reveal the number of em-
ployees represented by the IAM, unrepresented by any
union, or represented by the UAW excepting as revealed
by evidence relating to some approximately 400 Service
and Support R-12 employees, reference to laid-off employ-
ees ranging from 158 to 258 employees (of office cleaning
employees who are S & S R-12 employees), and reference
to 187 employees in layoff from the overall UAW bargain-
ing unit in this case. Respondent's facility contains 40
buildings, the majority of which are devoted to manufac-
turing. In addition to the manufacturing buildings, the fa-
cility contains many office work areas. The occupied office
space of the facility covers 910,000 square feet.
Union representative Richardson credibly testified to the
2The facts are based upon the pleadings and admissions therein. stipula-
tions and statements narrowing the issues, and credited aspects of the testi-
mony of witnesses.
GENERAL ELECTRIC COMPANY 705
effect that as of December 20, 1977, there were approxi-
mately 400 S & S R-12 employees on the master seniority
list, that the S & S R-12 employees were on the lower line
of skill, and that they performed many duties.
Richardson's credited testimony, as well as Woycke's, indi-
cated that there were some S & S R-12 employees who
mainly engaged in cleaning office areas. These employees
are the ones who are essentially involved in carpet cleaning
and in the issues in this case.
Although the master seniority list for S & S R-12 em-
ployees included approximately 400 employees as of De-
cember 20, 1977, it appears that the number of S & S R-12
employees involved in office cleaning numbered around
100 to 115 at all times relevant to this proceeding. Thus,
Richardson's testimony was to the effect that the S & S R-
12's who performed office cleaning work on the second
shift numbered between 100 to 150. Richardson's testi-
mony appeared to be based upon general impression and
knowledge of recollection of past years. Woycke, manager
of plant engineering and utilities services, appeared to have
more exact knowledge as to the number of office cleaning
employees. Thus, I credit Woycke's testimony to the effect
that as of October 1, 1976, there were 67 S & S R-12 em-
ployees employed on the second shift office cleaning force:
that as of December 31, 1976, there were 73 employees
performing office cleaning work on the second shift; and
that as of December 20, 1977, there were 76 such employ-
ees on the second shift. Woycke further credibly testified to
the effect that as of December 20, 1977, there was a total of
115 S & S R-12 office cleaning employees on the three
shifts.
The credited testimony of Richardson and Woycke re-
veals that the major number of employees performing of-
fice cleanup work (the S & S R-12 employees assigned to
such work) worked on the second shift because most of the
offices were vacant at such time. A smaller group of S & S
R-12 employees did some office cleanup work on the first
shift because of security reasons related to certain offices.
Apparently an even smaller number of S & S R-12 em-
ployees worked in office cleanup work on the third shift.
C. History of Carpet Cleaning
The office cleaning force, composed of S & S R-12 em-
ployees, is and has been responsible for the cleaning of
aisles, corridors, stairwells and private offices, including
vacuuming, mopping and waxing floors, emptying garbage
and trash cans, dusting and cleaning furniture, vacuuming
carpeting, and similar activities. The cleaning force is also
responsible for the daily cleaning and stocking of 133 rest-
rooms and the removal of 21 tons of trash each day.
The credited evidence indicates that the S & S R-12
office crews do not sweep daily or vacuum and clean car-
pets on a daily basis. The credited evidence, however, indi-
cates that the carpets are vacuumed on a regular basis, if
not on a daily basis. The credited evidence also reveals that
the S & S R-12 employees clean carpets by shampooing,
scrubbing, and vacuuming. Such cleaning of rugs and car-
pets does not occur as regularly as the vacuuming of the
rugs. It would appear, however, that such cleaning, al-
though on an occasional basis, occurs with reasonable reg-
ularity. On such occasions, the S & S R-12 employees vac-
uum the rugs or carpets after cleaning. The equipment used
in the cleaning of the carpeting consists of a Clarke sham-
poo/scrubber and a vacuum cleaner essentially similar to
such equipment as used for similar work in homes.
Respondent has had some areas of the Evendale facility
carpeted for many years. Apparently around 1953 such ar-
eas that were carpeted were small in size. Apparently
around 1962, Respondent doubled or tripled the size of the
areas that were carpeted. During the period 1974-77 Re-
spondent increased the size of the carpeted area from
around 18,500 square yards to 37,000 square yards.
As indicated, historically on a normal and reasonably
regular basis, the S & S R-12 office cleaning force has
performed the carpet cleaning for Respondent at its Even-
dale facilities in the office and related type areas. Such
carpet cleaning work has been accomplished by employee
usage of shampoo/scrubbers owned by Respondent. Such
shampoo/scrubbers are around the size of, but slightly
larger than, similar equipment used in cleaning of carpets
in residential homes. In the process of cleaning carpets as
normally and regularly used, carpets are first vacuumed.
Following the vacuuming of carpets, an employee uses a
Clarke shampoo/scrubber which is pushed across the car-
pet dispensing shampoo soapy suds on the carpet. Virtually
at the same time, rotating brushes, under the shampoo/
scrubber, scrub the carpet, pushing the shampoo suds solu-
tion into the carpet. Another employee, using a "wet vac,"
follows the shampoo/scrubber operator and vacuums the
wet surface of the carpet to pick up nap and such loose dirt
as may come up. Ideally, carpets should be completely
dried before anyone walks on them. The effectiveness of
the carpet cleaning is impaired by the necessity to com-
mence usage of the area before the carpets are completely
dry. Because of such usage, before dry, the slightly wet
carpet apparently has an increased propensity of picking
up dirt or debris.
The facts relating to the history of carpet cleaning work
and subcontracting or bargaining unit work is as follows.
There had been, prior to October , 1976, no subcontract-
ing of carpet cleaning work. As has been indicated, carpet
cleaning work is not performed on a daily basis but is per-
formed substantially on a reasonably regular routine type
basis. There appears to have been one occasion in the past
whereby the carpet cleaning needs appeared to be beyond
the needs of a routine nature. It appears that Respondent
had a large auditorium for various meetings and that the
carpeted area in such auditorium had become very dirty
and oily. The cleaning of the auditorium was performed by
regular S & S R-12 office force cleaning employees. Thus,
S & S R-12 office force cleaning employees, not regularly
assigned to clean the auditorium carpet, cut off loose ends
of carpet and strings and shampooed, scrubbed, and vacu-
umed the carpet in the auditorium.
The facts are clear that Respondent and the Union
(UAW) have not had many past problems relating to sub-
contracting of bargaining unit or related type work. On one
occasion in the past, Respondent brought in a number of
employees to do some cleaning of walls in Building 700.
The Union threatened to strike, and Respondent moved
such employees or persons away from Building 700.
GENERAL ELECTRIC COMPANY
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts are clear that Respondent in the years preced-
ing October 1, 1976, had unilaterally subcontracted work
of a type similar to but not necessarily of a routine type as
regards bargaining unit type work (other than carpet clean-
ing). Thus, S & S R 12 employees have been assigned some
snow removal tasks during winter months. Respondent,
however, has subcontracted large snow removal problems
to a contractor who has equipment for such type work. S &
S R- 12 employees have engaged in the cleaning of venetian
blinds on a small scale. When the needed cleaning of ve-
netian blinds has been on a large scale, Respondent has
subcontracted such work. S & S R-12 employees have in
the past engaged in pest control work where such work
requirements were small in nature. Thus, in the past, S & S
R-12 employees have on an occasional basis sprayed indi-
vidual offices or trash cans with pesticides. Annually. how-
ever, Respondent contracts with a pest control service to
treat entire buildings. S & S R-12 office cleaning employ-
ees are routinely assigned to clean windows in offices. Re-
spondent, however, subcontracts large-scale window clean-
ing jobs. The Union, Local 647, has never been given
notice of the letting of the above referred to contracts.
During the year preceding December 20, 1977, Respon-
dent subcontracted work of a type similar to the type re-
ferred to above or work normally performed by the bar-
gaining unit involved in this case.
During the bargaining preceding the last collective-bar-
gaining agreement between Respondent and the Union (ef-
fective from August 8, 1976, through July 15. 1979), the
Union proposed a contract clause to prohibit subcontract-
ing. Such contract clause proposal was not agreed upon,
and there is no contractual prohibition upon subcontract-
ing.
D. Subcontracting Carpet Cleaning
I. On October 1, 1976, and other dates between October
I and December 31, 1976, Respondent let subcontracts,
more specifically referred to hereinafter, for work includ-
ing the cleaning of carpets by a steam extraction method.
The steam extraction process was developed approxi-
mately 3 to 4 years ago and was first known to G.E. to be
commercially available in Cincinnati approximately 2
years ago. Steam extraction of carpeting is offered by se-
veral carpet cleaning companies in the Cincinnati area.
These companies use trucks to move the equipment around
from job to job. Each truck contains a vacuum tank, hot
water reservoir, pumps, and heater.3 The water is heated in
the truck and then pumped under pressure through hoses
to a steam wand where eight to ten nozzles fan the water
out and spray the carpet. The hot water sprays the carpet
fibers and "bounces" the dirt out of the fibers by emulsify-
ing it, then bringing it to the surface in a suspended solu-
tion.
The steam wand which contains the jet water nozzles
also contains a vacuum pickup. This vacuum pickup,
which is located one-fourth of an inch behind the water
Respondent's brief sets forth in effect proposed findings of fact which
comport with the same findings of fact supported by the record and found
by me. and I have adopted some proposed findings of fact accordingly.
nozzles moves along in the vacuum head picking up the
water virtually simultaneously as it is laid down by the jet
spray.
The simultaneous water pickup offered by the steam ex-
traction equipment gives that equipment an inherent ad-
vantage over the shampoo/scrubber technique. The steam
extraction process has the advantage of being able to vacu-
um the emulsified dirt from the surface of the carpet before
the dirt has time to soak back into the carpet fibers. This
feature results in a much cleaner carpet. Simultaneous
pickup also enables the steam extraction equipment to cap-
ture the water before it can soak down into the carpet fi-
bers. Thus, the carpet is not only cleaner but, not having
been soaked as it is in the shampoo/scrubber technique,
dries more rapidly and thereby completes its cleaning pro-
cess before the offices are reoccupied. When the office
employees enter the offices the next morning they are not
walking on a damp carpet and soil from the bottom of their
shoes does not readily come off on the (dry) carpet.
2. On October , 1976, Respondent let a subcontract for
cleaning and stretching of carpet at certain designated ar-
eas. The amount of the contract price for services was
$681.44, and the job was to be completed according to a
schedule not revealed in the evidence.
3. On November 12, 1976, Respondent let a subcontract
for repair and cleaning of carpet at certain designated ar-
eas. The amount of the contract price for services was
$7,386. The work was scheduled for between Friday at 5
p.m. and Monday at 6 a.m., to be completed by November
14, 1976.
4. On December 15, 1976, Respondent let a subcontract
for painting of a certain area and for steam extraction
cleaning of carpet in a designated area. The amount of the
contract price for services and materials was $1,460 (with
$260 thereof for materials). The work was scheduled for
completion by December 31, 1976.
5. On December 16, 1976, Respondent let a subcontract
for carpet cleaning in certain designated areas. The
amount of the contract price for services was $4,500. The
work was scheduled for between Friday at 5 p.m. and
Monday at 6 a.m., and was to be completed by December
20, 1976.
6. Pursuant to the above referred to subcontracts, the
services and work required under such contracts were per-
formed by workers other than S & R R-12 employees in
the bargaining unit.
7. Respondent did not notify or consult with the Union
(Local 647, UAW) prior to the letting of the October 1,
1976, contract referred to above.
On October 4, 1976, Union Committeeman Hensley and
a steward met with certain company officials to protest the
subcontracting involved. What occurred is revealed by the
following excerpts from Hensley's credited testimony.
A. Yes. Me and one of the stewards met with
Slaughter, the sub-section manager; John Morgan, the
foreman, and we protested the fact they had outside
contractors doing the work.
Q. All right, and what was Mr. Slaughter's re-
sponse?
A. Mr. Slaughter's response was that they need the
GENERAL ELECTRIC COMPANY 707
work done in a hurry. They had the capability inside
the plant to do it, they would not do this again until
they had got back with the Union.
Q. All right. Did you have any further discussions
with members of management after this conversation
with Mr. Slaughter?
A. The stewardess processed a grievance. We for-
mally talked to them at the second level of the griev-
ance procedure with the shop relations rep named
Dick Ely. These were referred to the third level of the
grievance procedure when they were denied at the sec-
ond level.
Q. All right. Did you ever have any conversations
with other members of management about your con-
versation with Mr. Slaughter?
A. Yes.
Q. And with whom were those conversations?
A. These were contested at the second step and also
at the third.
Q. And who was present on behalf of the em-
ployer?
A. Nussbaum is the company rep at the third step
of the grievance procedure.
JUDGE STONE: Who was that?
THE WITNESS: Charlie Nussbaum.
MR ROKETENETZ: It's N-U-S-S-B-A-U-M I think.
THE WITNESS Right.
Q. And what conversation did you have with Mr.
N ussbaum?
A. We told him again that the sub operation man-
ager had made commitments to us that we had the
capability to do this work and they would not sub-
contract it without getting back with the Union.
Q. What was Mr. Nussbaum's response?
A. He said Slaughter, the sub-section manager, was
not the spokesman for the company and they refuted
anything that he had told us at any meetings.
8. Respondent did not formally notify or consult with
the Union (Local 647, UAW) prior to the letting of the
November 12, December 15, or December 16, 1976. sub-
contracts.
As indicated above, however, there was discussion on
October 4, 1976, about the October I, 1976. subcontract,
and a grievance was filed and denied by Respondent.4
After the letting of the November 12, 1976, subcontract.
the Union again protested such subcontracting.
The testimony by Richardson as to such protest was pre-
sented by questions and answers in such a way that the
record as made at first blush seems confused as to timing
of events. Considering Richardson's answer in the nature
of a question as to whether a tendered exhibit was the
"biggest one" (obvious reference to the size of the subcon-
tract), his testimony relating to an overall plant November
layoff as related in timing to the subcontracting. I am per-
4 The parties' contract includes gne.ance and rbitrallon procedures a, toi
certain matters. The issue insvolved herein does not come under the lunlhrella
of required arbitration, if necessary. according to the conlraci.
suaded that Richardson's testimony as to protesting the
subcontract related to a time period shortly after Novem-
ber 12. 1976. I so find the facts.
On or about November 12 or 13, Richardson. president
of Local 647 (UAW). protested Respondent's subcontract-
ing of work. 5 What occurred is revealed by the following
credited excerpts from Richardson's testimony.
A. Well, after I heard about it, and I'm not going to
testify as to which one of the four it was because they
were pretty close together. but after they happened of
course I went to everybody I could go to, the Union
relations negotiator, the manager of Union relations.
the plant manager who is responsible for all the prob-
lems that we have within the U.A.W. and I believe
he's also responsible for I.A.M. problems, too. !hat
was George Crawl. And I may have went and talked
to Ray Letts who is the Vice-President of the compa-
ny.
Q. Now I direct your attention to the conversation
with George Crawl. can you relate to the court what
conversation you had with him?
A. Yes. I protested the fact that they had brought
people in the plant to perform our work which we had
historically done and hadn't had any problems with
some outside contractor coming in. We've had a prob-
lem with them sending it out somewhere else but never
bringing people in there to do various types of work.
This mainly being the S&S because there wasn't any
skill, extra skill in my opinion involved in this, and we
had the facilities and equipment to work with. I pro-
tested to him about that and asked him was he aware
of it. He said most all of the sub-contracting he was
aware of it. Occasionally there would be a small
amount that would go out that wasn't brought to his
attention. So I told him that I thought that this was
wrong, it was a violation of our certification, that we
certainly should represent the people who perform
that work and these we didn't even know them let
alone represent them. So it got to be a prett heated
argument and at one point I think I told him that I felt
with this type of sub-contracting and with us with the
people to do it that somebody was getting a kick-back.
must be getting a kick-back on letting out the con-
tracts. It got pretty hot at that time. I told him that.
you know, that was the management's right to manage
their business and if they saw fit to bring contractors
in they would do so. I told him at that point well we're
going someplace. downtown or whatever it's necessary
to get results and I'll take whatever action is necessary
to try to get results.
A. Yes. I believe we had some out at that period of
time and we had just got a bump about that same day
or within a day or two of the time that we found cut
about it of 187 people being laid off in the plant. And
again. I brought that to George Crawl's attention and
he said well that was only-would only mean about
one guy's work. I believe he said there was only
$12,000 let in the year 1976. was let out on the sub-
If uch protest occurrcd i;i . differentll date. it souild not affect the
oeraill results of the findings and decislton il his matter
GENERAL ELECTRIC COMPANY
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708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracting on the cleaning of carpets. I said well that
would have at least retained one S&S because that's
about what he would make in a year's period.
9. Some evidence was presented into the record appar-
ently to reveal that some S & S R-12 office cleaning em-
ployees were on layoff or were laid off from around Octo-
ber through December 31, 1976. Thus, Richardson,
president of Local 647 (UAW), credibly testified that as of
December 20, 1977, there were approximately 400 employ-
ees on the S & S R-12 master seniority list and that during
the period October , through December 31, 1976, there
were 158 or 258, and he believed that it was 258, employees
(S & S R-12) working.6 I find such testimony sufficient to
reveal that during the period October 1 through December
31, 1976, there were some S & S R-12 employees on lay-
off.7
Richardson's testimony as to whether S & S R-12 office
cleaning employees were laid off during the period October
1, through December 31, 1976, appeared to be conclusion-
ary and to be based upon opinion of probability because of
the layoffs in the total S & S R-12 employee group because
of application of seniority principle or a trickle down effect
of bumping rights. Such testimony is of insufficient proba-
tive value to establish that there were additional layoffs
among the S & S R-12 office cleaning employees during
the period October I through December 31, 1976.S
Richardson's ultimate testimony revealed that it was not
the Union's contention that the S & S R-12 office cleaning
work force was decreased because of, or would have been
increased in the absence of, the subcontracting of the car-
pet cleaning work. Rather, the Union considered that the
subcontracted carpet cleaning work constituted potential
work that S & S R-12 office cleaning employees could do
as overtime work. Considering this, I find that the question
of layoff is not of significance as regards the question of
impact caused by subcontracting of carpeting in October-
December 1976.
E. Contentions and Conclusions
The General Counsel contends that within the meaning
of the Board's decision in Westinghouse Electric Corpora-
tion, 150 NLRB 1574 (1965), and the Supreme Court's de-
cision of Fibreboard Paper Products Corp. v. N.L.R.B., 379
U.S. 203 (1964), the subcontracting of carpet cleaning by
Respondent on October 1, November 12, December 15,
and December 16, 1976, constituted unilateral conduct vio-
lative of Section 8(a)(1) and (5). Respondent argues the
same cases and others and contends that its subcontracting
of carpet cleaning during October through December 1976
was not violative of Section 8(a)(5) and (1) of the Act.
Essentially, the General Counsel argues and Respondent
denies that (1) the subcontracting was not motivated by
6 Richardson's testimonial reference to 187 employees laid off around
November 12. 1976. appeared to refer to employees in the overall unit.
including employees who were S & S R--12's and other employees.
Referring to the total S & S R 12 employees including office cleaning
employees.
Referring only to S & S R-12 office cleaning employees.
solely economic consideration, (2) the subcontracting did
not comport with Respondent's customary business opera-
tions, (3) the subcontracting involved varied significantly
in kind and degree from past practice, (4) the subcontract-
ing involved had a demonstrable adverse impact on bar-
gaining unit employees, and (5) the Union had not had an
opportunity to bargain about changes in existing subcon-
tracting practices at previous general bargaining sessions.
The General Counsel further argued that the Board in
Westinghouse Electric Corporation, supra, indicated that
certain criteria concerning subcontracting had to be met
cumulatively in order for such subcontracting to be valid.
The Board actually indicated in the Westinghouse case that
it had considered various factors cumulatively in reaching
its determination in such case. In most of the cases involv-
ing Fibreboard and Westinghouse issues, the Board has em-
phasized that it does not follow a per se approach. How-
ever, several years ago there appeared comment or
statements in "The Developing Labor Law" (publication
by Section of Labor Law, American Bar Association 1971),
interpreting the Board's Westinghouse decision as a re-
quirement that the employer in subcontracting cases meet
such criteria factors as considered by the Board on a cumu-
lative basis in reaching its decision in said case. The Board
in Empire Dental Co., 211 NLRB 860, 867 (1974), set forth
that the Westinghouse criteria must be met more or less
cumulatively. In a later decision, AMCAR Division, ACF
Industries, Inc., 231 NLRB 83 (1977), the Administrative
Law Judge in dictum interpreted the Westinghouse decision
(150 NLRB 1574) as a Board holding that the criteria set
forth in such case must be met on a cumulative basis, but
correctly set forth the Empire Dental Co. holding by the
Board. In my opinion, the Board in the Westinghouse deci-
sion did not set forth a per se rule that the Westinghouse
criteria had to be met as regards each factor. In this case,
however, the facts reveal that the Employer's action and
factual background comply with such Westinghouse crite-
ria, and that the Employer's October-December 1976 sub-
contracting of carpet cleaning was not violative of Section
8(aX5) and (1) of the Act.
The main issue in this case concerns whether the subcon-
tracting of cleaning of carpeting by the steam extraction
method constituted the subcontracting of work normally
and regularly performed by bargaining unit employees. A
consideration of all of the facts requires a finding that such
type of cleaning of carpets constituted work not normally
or regularly performed by bargaining unit employees. Bar-
gaining unit employees did normally and regularly engage
in carpet cleaning by use of small shampoo/scrubbers and
vacuums. Such cleaning might be described as being done
on a reasonably regular but reasonably close in time se-
quence. The October-December 1976 subcontracted car-
pet cleaning was more thorough in nature and constituted
in effect a once in an extremely long period type of clean-
ing as compared to the normal daily or weekly type clean-
ing.
The facts reveal that Respondent was motivated in sub-
contracting carpet cleaning to get a through, once a year
(or so) type cleaning, in an expeditious job not interfering
with manufacturing process, and not as discrimination
against bargaining unit employees. Thus, Respondent's de-
GENERAL ELECTRIC COMPANY 709
cision for subcontracting was based solely upon economic
reasons.
The facts reveal that Respondent had customarily sub-
contracted large jobs of the type of work performed by
bargaining unit employees on a small scale. The subcon-
tracting of carpet cleaning in October--December 1976 thus
comported with past practice and did not vary significantly
in kind or degree from past practice.
The facts reveal that the same number of bargaining unit
employees (S & S R12 office cleaning force) continued
their daily work in the same manner during the subcon-
tracting period (October-December 1976) and received
their regular hours of work. The overall evidence reveals
that the equivalent dollar value of the subcontracts might
have resulted in pay for one S & S R-12 employee for I
year. Actually, the issue of impact upon the bargaining unit
resolves into a contention that bargaining unit employees
lost "potential overtime." Considering the number of S & S
R 12 office cleaning employees, apparently around 100 or
more in number, such loss of potential overtime does not
reveal a demonstrable adverse impact on bargaining unit
employees.9
The facts are also clear that the question of subcontract-
ing was a subject considered in sessions leading to the last
and current collective-bargaining agreement. Further, the
October I. 1976, subcontract was a small contract
($681.44) and the Union pursued a grievance as to such
subcontracting. It is clear that after October I and after
November 12, 1976, opportunity existed to pursue griev-
ances in a collective-bargaining sense and that the Union
was aware of the overall issue of subcontracting as regards
the October December 1976 subcontracting of carpet
cleaning. Considering these factors. I am persuaded that
within the meaning of the Westinghouse case (150 NLRB
1574), the Employer's subcontracting of carpet cleaning in
October December 1976 was not violative of Section
8(a)(5) and (1) of the Act. The allegations of unlawful con-
duct in such regard will be dismissed.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
') See 41hed ( hemtial ( orp.raniron a iwlnal 4,111mi n,,n). 1 sI R BRH
718 (19651
CONCI.USIONS OF LAW
1. General Electric Company, Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 647, International Union of Automobile. Aero-
space & Agricultural Implement Workers of America,
UAW. is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and service employees employed at
General Electric Company's Evendale, Ohio, facility who
are included in the bargaining unit as determined by the
National Labor Relations Board in Cases 9-RC-488 and
9-RC-1676, excluding all other employees as defined by
the Board in Cases 9 RC-470, 9 RC-471, 9-RC-2024, and
9 RC-2092, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.'0
4. At all times material herein and to date. the Union
has been, and is now, the certified representative for pur-
poses of collective bargaining of Respondent's employees
employed in the unit (described in section 3 above), and by
virtue of Section 9(a) of the Act has been, and is now, the
exclusive representative of all employees in said unit for
the purposes of collective bargaining with respect to rates
of pay. wages, hours of employment, and other terms and
conditions of employment.
5. Respondent has not violated Section 8(a)(5) and (1
of the Act by subcontracting carpet cleaning during Octo-
ber December 1976.
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
The complaint in this case is dismissed in its entirety.
' Such Ii Include S & S R 12 emplo'ees engaged n office cleaning
in the event no exceptions are filed as prosided hb Sec. 102.46 of the
Rules a.nd Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as provided In Sec.
102,48 of he Rules and Regulamions, be adopted by the Board and become
its findings. conclusions. and Order. and all objections thereto shall be
deemed aialed for all purposes
GENERAL ELECTRIC COMPANY 09_ _ .. . ..