Louisiana-Pacific Corporation

National Labor Relations Board - Board Decisions

Jun 22, 1981

256 N.L.R.B. 796 (N.L.R.B. 1981)

796 I)ECISIONS ()OF NATI()NAL LABOR RELATIONS BOARD
Louisiana-Pacific Corporation and Lumber, Produc-
tion and Industrial Workers, Local Union 3074,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 20-CA-15109
June 22, 1981
DECISION AND ORDER
On February 9, 1981, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
dismissing this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief in op-
position to the exceptions.
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, 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
I We find, in agreement ith the Administrative L.a Judge, that the
Respondent was not obligated to bargain about the udeclking of logs
from its log deck at its Greenville mill, and placing them in piles prepara-
tory to) their being loaded by the subcontractor's employees In making
such finding, we note in particular that such subcontracting was COllSist-
ent with the Responldent's past practices of hiring subcotntractors to load
and transport logs from its Greenville mill to its other mills on all aver-
age of four occasions each year, since 1974; that Ahenever such subcon-
tracting occurred the Respondent's employees did not uindeck the logs
and deposit them in a place accessible to the subcontractor's emnployees
for subsequent loading, other than occasionally; that there was no pattern
or history of using a composite crew during such subcontractinlg oper-
ations; that such subcontracting was econonlically justified since the Re-
spondent then contemplated permanently terminating its Greenville mill
and transferring its logs; that at the time it subcontracted the work in
question, the Respondent anticipated that the unit work of operating the
front-end loader (CAT 966) would he needed primarily for cleanup oper
ations several hours a day, a fes days a week; that it would not have
been economically feasible to hire a unit employee to operate the front-
end loader for the sporadic work of undecking certain logs which re-
ceived priority in loading after the subcontracting; and that emrnploees
Heard and McKinney were not qualified to load logs Moreover, the rele-
vant bargaining history shows that the Union in the past had unsuccess-
fully sought contract language limiting the established subcontractig
practice Westinghouse Ilectri Crpioriorl (,ansfietd Planti. 150 NL RB
1574 (1965).
DECISION
ST-IATEMENI' OF ITHE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Quincy, California, on September
9, 1980. The charge was filed on January 3, 1980, by
Lumber, Production and Industrial Workers, Local
Union 3074, United Brotherhood of Carpenters and Join-
256 NLRB No. 133
ers of America, AFL-CIO (herein called the Union). C
March 31, 1980, the Regional Director for Region 20
the National Labor Relations Board (herein called ti
Board) issued a complaint and notice of hearing allegin
a violation by Louisiana-Pacific Corporation (herei
called Respondent) of Section 8(a)(l) and (5) of the Na
tional Labor Relations Act, as amended (herein callec
the Act). Respondent's answer to the complaint, duly
filed, denies the commission of any unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and Respondent.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINI)INGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with facilities
located in California, including a facility located in
Greenville, California, where it has been engaged in the
operation of a lumber mill. In the course and conduct of
its business operations, Respondent annually ships goods
and materials valued in excess of $50,000 directly to cus-
tomers located outside the State of California. It is ad-
mitted, and I find, that Respondent is now, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
11. THE ABOR ORGANIZATION INVOI.VED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II I THE AI.LEGED UNFAIR l.ABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
Respondent unilaterally subcontracted bargaining unit
work in violation of Section 8(a)(5) of the Act.
B. The Facts
Respondent has operated a lumber mill in Greenville,
California, since in or about 1974, and has maintained a
continuing collective-bargaining relationship with the
Union.
On or about August 2, 1979, Respondent notified the
Union, in writing, that Respondent anticipated perma-
nently closing the Greenville mill, which produced two-
by-four studs, on or about September 1, 1979, and of-
fered to discuss this matter with the Union. Thereafter,
representatives of Respondent and the Union met on sev-
eral occasions to discuss the mill closure. During the
course of one such meeting in September 1979, the
Union's representative, Gerald Dunkley, asked what Re-
LOUISIANA-PACIFIC CORPORATION 797
spondent intended to do with the "log deck" ' which
contained logs totaling some 7,300,000 board feet of
lumber. Respondent's safety and industrial relations man-
ager, John Marty, replied that he did not know what
would be done with the logs upon the cessation of pro-
duction operations.
Later, in mid-October 1979, it was determined by offi-
cials at Respondent's division headquarters that the
smaller logs which were located in the Greenville log
deck, and which normally would have been processed at
the Greenville mill, were to be transferred to another of
Respondent's sawmills in Oroville, California; and that
the larger logs would be transferred, as they had been in
the past, to Respondent's mill in Crescent Mills, Califor-
nia. However, Respondent did not advise the Union of
this determination.
Thereafter, Respondent's log deck employees Robert
Heard and John McKinney inquired of Scott Koehler,
forester and, in essence, manager of the Greenville mill,
about the disposition of the log deck. Koehler explained
that the logs were to be transferred elsewhere and stated
that the work was to be performed by a subcontractor,
Don Howard Logging, Inc. Neither Heard nor McKin-
ney made any immediate claim for the work in question,
and these two employees, who apparently were the last
of Respondent's employees to be released, were laid off
on or about October 31 and November 2, 1979, respec-
tively.
The aforementioned work by Don Howard Logging,
Inc., commenced on November 7, 1979, on which date
two employees of the subcontractor each worked 3
hours. Thereafter, the work apparently was discontinued
until early January 1980, and from that date until about
March 11, 1980, about 35 percent of the log deck was
removed by the subcontractor's two employees. One of
these employees, Jim North, performed some 220 hours
of work at Respondent's premises during this approxi-
mately 10-week period of time. North testified that using
Respondent's log handling equipment; namely, the CAT
966,2 he spent about 70 percent of his time packing or
hauling the logs from the log deck and transporting them
to a loading area, and about 30 percent of the time load-
ing the logs onto the subcontractor's trucks. Thus, North
would pack the logs to the loading area with the CAT
966, and place them in three separate piles, according to
species and/or length, which were accessible to the
knuckle-boom loader, a less mobile type of log loading
equipment which was operated by another employee of
the subcontractor.3 The knuckle-boom loader operator
would then place the logs on the trucks. To a limited
extent, North, using the CAT 966, would also load
trucks from the piles of logs he had packed from the
deck to the loading area. However, most of North's
truck-loading work involved packing from the log deck
I The logs ere stored in a log deck which consists of rows of logs
stacked in a manner that facilitates further handling by various types of
log handling equipment
2 The subcontractor leased this piece of machinery from Respondent at
an hourly rate
3Sometimes, in the absence of the knuckle-boonl operator, North
would operate the knuckle-boom loader
and loading directly onto the truck, without first placing
the logs in any of the piles in the loading area.
The record shows that since 1974, on an average of
about four occasions each year, Respondent hired sub-
contractors, including Don Howard Logging, Inc., to
load and/or transport logs from its Greenville mill to
other locations. On these occasions, if Respondent had
employees capable of loading logs onto trucks with Re-
spondent's equipment, these employees would be utilized
to load logs, and the subcontractor's employees would
merely drive the trucks. However, there were frequently
no such employees with the necessary experience, 4 and
from 30 to 50 percent of the time employees of the sub-
contractor would both load and haul the logs. In the
latter event, employees of the subcontractor used a CAT
966, owned by the subcontractor, to load the logs direct-
ly from the log deck (until about 1977, when the subcon-
tractor's knuckle-boom loader was thereafter primarily
used to do this work) and the only assistance by Re-
spondent's employees would involve the infrequent
movement of logs to a more convenient place, or to
clean up the area after or during the loading operation.
Koehler testified that, when he contracted with Don
Howard Logging, Inc.. in October 1979, he anticipated
that the CAT 966 would be used, at the maximum, sev-
eral hours a day a few days a week to remove bark and
broken ends and transport some few logs to the knuckle-
boom loader. Prior to this time, Koehler had discussed
the possibility of using Respondent's employees for the
CAT 966 work with an official at Respondent's division
headquarters, but upon assuring themselves that Re-
spondent had no employees who were qualified to load
logs, and that the cleanup work would only amount to
about 4 hours' work per week, Respondent did not think
this idea was feasible. Koehler later learned, however,
after the work had been subcontracted, that the Oroville
sawmill initially required a different species of logs from
those that were immediately available to the knuckle-
boom loader. These particular logs had to be carried by
the CAT 966 to an available place for loading by the
knuckle-boom loader, thus necessitating the use of the
CAT 966 to a much greater extent than originally antici-
pated.
On January 7, 1980, upon observing the aforemen-
tioned work, the Union's assistant business representa-
tive, Joe Palazzi, requested and received the November
12, 1979, letter of subcontract from Respondent. On Jan-
uary 9, grievances were filed over the work in question
by Respondent's two log deck employees who had been
laid off, and Business Representative Dunkley phoned
Manager John Marty, asked why the Company was re-
moving the logs with nonbargaining unit personnel, and
claimed the work for unit employees. Marty replied that
the claimed work of operating the CAT 966 was of short
duration and would necessitate work of perhaps no more
than a few hours per day.
Thereafter, a grievance meeting was held on January
17, 1980. Various union and management representatives
' The correct I dnlg f logs Iontl trucks necessiltate ia degree of ex-
pertise and e perience In irder to maintain the prolper balance, apparelt-
1I in ordcr o pre nit ti ho logs from shifting dlurinlg tranllsprt
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were present. A full discussion of the grievance was held
and each party presented their respective positions. Re-
spondent remained adamant that, under the circum-
stances, the work could be legitimately subcontracted.
The work of removing the log deck was subsequently
discontinued on or about March 11, 1980, and sometime
thereafter, in early April 1980, Respondent advised the
Union that it had determined that the Greenville mill
would be reopened for the purpose of a different type of
production operation. As a result, the unit employees
have been recalled to work.
C. Analysis and Conclusions
The contracting out of bargaining unit work is a statu-
tory subject of collective bargaining, and an employer
who unilaterally subcontracts such work without having
afforded the employees' bargaining representative an op-
portunity to discuss the matter violates Section 8(a)(1)
and (5) of the Act. Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203 (1964).
However, the Board in Westinghouse Electric Corpora-
tion (Mansfield Plant), 150 NLRB 1574 (1965), has enu-
merated certain criteria which should be considered in
determining whether an employer may be justified in
unilaterally subcontracting work. These factors are as
follows: (1) whether the subcontract was motivated
solely by economic consideration; (2) whether the sub-
contract comported with traditional methods by which
the employer conducted its business operations; (3)
whether the subcontract did not vary significantly in
kind or degree from what had been customary under es-
tablished past practice; (4) whether the subcontract had
no demonstrable adverse impact on employees in the
unit; and (5) whether the union had an opportunity to
bargain about changes in existing subcontracting prac-
tices at general negotiating meetings.
The General Counsel does not appear to maintain that
any of Respondent's laid-off employees had the skill and
experience to load trucks. Rather, it is contended that
the work of undecking the logs and placing them in
piles, preparatory to their being loaded by the subcon-
tractor's employees, is work about which Respondent
was obligated to bargain.
The record shows that employees of Respondent had
performed the work of undecking logs and loading the
trucks of subcontractors to the extent that Respondent
had qualified employees to perform this work. When
such employees were unavailable, which appears to have
been about 50 percent of the time, Respondent subcon-
tracted the work. However, when the loading work was
subcontracted, Respondent's employees did not, as a part
of the loading operation, undeck the logs and deposit
them in a place accessible to the subcontractor's employ-
ees for subsequent loading except, as the record shows,
in very isolated instances. Thus, I find, that there was no
historical frequency sufficient to be characterized as a
"practice" of utilizing a composite crew for the undeck-
ing and loading of logs.
Due to the fact that Respondent received instructions
to supply various mills with particular species of logs on
a priority basis, a decision learned of subsequent to the
entering into of the subcontract, the subcontractor's em-
ployees found it necessary to obtain logs from the log
deck which could not be reached by the knuckle-boom
loader, a piece of equipment that was not as mobile as
the CAT 966. Thus, the CAT 966 was utilized to bring
the logs to within reach of the knuckle-boom loader, and
also to load logs about 30 percent of the time. Respond-
ent had not previously contemplated this. There is no
evidence that had the work in question continued after
March 11, 1980, the CAT 966 would have been utilized
to the same extent for packing, as distinguished from
loading, work.
Applying the aforementioned criteria enunciated in
Westinghouse Electric Corporation, supra, to the instant
facts, I find that, on balance, the contracting out of work
herein was not violative of the Act, as alleged. Thus, it is
clear that the subcontract was motivated solely by eco-
nomic considerations, and there is no contention to the
contrary; the subcontract, as initially conceived, com-
ported with the manner in which Respondent had previ-
ously contracted out its log loading work, and there had
never been a composite crew, comprised of employees of
Respondent and the subcontractor, to perform compo-
nent parts of such work; the subcontract was clearly of a
nonrecurrent nature entered into for the purpose of im-
plementing Respondent's decision to permanently close
its Greenville mill, and as such, particularly considering
the limited number of hours per day that an employee of
Respondent would be needed to undeck logs, would not
appear to have a sufficiently adverse current or future
impact upon unit employees;" and the record clearly
shows that the parties have had an opportunity to bar-
gain, and that in prior contract negotiations the Union
has proposed a clause prohibiting subcontracting of any
nature, but that the changes proposed by the Union have
not been accepted by Respondent' and, as a result, sub-
contracting has routinely occurred.
Based on the foregoing considerations, I conclude that
Respondent's determination to subcontract the work in
question without affording the Union7 advance notice or
an opportunity to bargain, and its subsequent decision to
deny the Union's claim for a portion of the work, was
not violative of Section 8(a)(5) and (1) of the Act, and I
shall dismiss the complaint in its entirety. See General
Electric Company. supra.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
5 See General Electric Company, 240 NLRII 703, 708 (1979): also see
Allied Chemical Corporation (VNational Aniline Division), 151 NLRB 718.
721 (1965). wherein the Board states that the detriment to unit employees
must be "significant."
6e Howeser, contrary to Respondent's contention, I do not find that as
a result of bargaining oer such contract proposals the Union waised its
right to object to unilateral subcontracting See Equiabhle Gas (Cmpany,
245 NLRH 2(), 263 (1979).
* Whether. under the circunstances, it mana be fairly concluded that
bargaining over the work did in fact occur on and subsequent to January
7, 1980. during the course of the grievanlce discussions at a time when the
work was in its beginning stages. is an issue not raised by the parties
herrinl
LOUISIANA-PACIFIC CORPORATION 799
3. Respondent has not violated the Act as alleged.
Accordingly, upon the basis of 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:
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Lahor Relations Board. the find-
()Th) complaint d i d i ts
The conplain is, dinlihcd in it, cntirey
ings, conclusions. and recommended ()rdcr herein shall. a provided iI
Sec 102 48 of the Rules and Regulations, be adolpted bhy he Board tld
become its findings. conclusions. and O)rder. and ;ll .objectlions Ihereto
shall be deemed waised for all purposes