Olinkraft, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1329 (N.L.R.B. 1980)

OLINKRAFT. INC.
Olinkraft, Inc. ad United Paperworkers Interna-
tional Union, AFL-CIO, and its Local 364.
Case 15-CA-7539
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 7, 1980, Administrative Law Judge
William N. Cates issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and counsel for the
General Counsel filed an answering brief.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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 Respondent, Olinkraft, Inc.,
West Monroe, Louisiana, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. I is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
2 Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions. and the briefs adequately present the
issues and the positions of the parties.
In accordance with his partial dissent in Olympic Medical Corporation,
250 NLRB 146 (1980), Member Jenkins would award interest on the
backpay due based on the formula set forth therein
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAIL LABOR REILATIONS BOARD
An Agency of the United States Government
WE WIL. NOT subcontract any bargaining
unit work or make or effect any change in the
conditions of employment of the employees in
252 NLRB No. 185
the collective-bargaining unit described in our
agreement with our employees' collective-bar-
gaining representative without first giving
notice to such representative and affording
such representative an opportunity to engage
in collective bargaining in regard thereto, and
without complying with all other provisions of
Section 8(d) of the National Labor Relations
Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL make whole our employees for
any loss of earnings they may have suffered by
reason of our unlawfully having let contracts
of bargaining unit work to outside contractors
without first notifying their collective-bargain-
ing representative of our intentions and afford-
ing such representative an opportunity to
engage in collective bargaining in regard
thereto.
OLINKRAFT, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge: This
matter was heard before me on June 4 and 5, 1980, at
Monroe, Louisiana. The hearing was held pursuant to a
complaint issued by the Regional Director for Region 15
of the National Labor Relations Board, on February 26,
1980, and is based on a charge which was filed against
Olinkraft, Inc., hereinafter called Respondent or Em-
ployer, by United Paperworkers International Union,
AFL-CIO, and its Local 364, hereinafter called Union or
Charging Party, on January 11, 1980. The complaint, in
substance, alleges that the Respondent has engaged in
and is engaging in certain unfair labor practices within
the meaning of Section 8(a)(l) and (5) of the National
Labor Relations Act, as amended, in that during the
period December 17, 1979 through December 29, 1979,
Respondent subcontracted bargaining unit maintenance
and production work unilaterally and without prior
notice to the Union which is the duly designated repre-
sentative of the Respondent's production and mainte-
nance employees. The issues in this matter were joined
by Respondent's answer of March 6, 1980, wherein it
denied the commission of the alleged unfair labor prac-
tices.
Upon the entire record' made in this proceeding, in-
cluding my observation of each witness who testified
herein, I hereby make the following:
I Certain errors in the transcript have been noted and corrected
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINI)INGS OF FACT
I. HE BUSINiSS OF RESPONDI.N f
The Respondent, a Delaware corporation, has its prin-
cipal offices and maintains the facility involved in this
proceeding in West Monroe, Louisiana, where it is en-
gaged in the business of processing and manufacturing
wood, paper, and related products. During the past 12
months ending February 26, 1980, Respondent purchased
and received goods valued in excess of $50,000 directly
from points located outside the State of Louisiana. The
complaint alleges, the answer admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
I1. LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a plant in West Monroe,
Louisiana, known as Paper Mill Plant No. 31, where it
processes and manufactures wood, paper, and related
products. The Respondent and Union herein have had a
contractual relationship since 1944. An appropriate unit
of approximately 1,069 production, maintenance, and re-
lated employees has been in existence at all times materi-
al to this case. Of the 1,069 employees, approximately
262 of them are maintenance employees. The Respon-
dent operates its plant on a 4-shift, 24-hour per day, 7-
day-a-week operation. The paper machine equipment
maintained by Respondent is large and very complex; for
example, in 1977 the Respondent installed two paper ma-
chines at a cost of approximately $130 million. The
equipment, to remain operational, requires proper main-
tenance. Notwithstanding the fact that Respondent has
262 maintenance employees, it uses outside contractors
to make capital improvements and to perform some rou-
tine maintenance work.
Although maintenance is performed on a year-round
basis, there are certain times annually when maintenance
is emphasized and increased. Twice annually-Labor
Day and Christmas-the Respondent has what is re-
ferred to as a "cold outage." In a cold outage the Re-
spondent closes its mill down completely with the excep-
tion of allowing some of its boilers to operate on low fire
for the preservation of property. The cold outage of pri-
mary concern in this case is the Christmas cold outage of
1979. The cold outages are necessitated in that there are
certain components or parts of the equipment of Respon-
dent that cannot be maintained while it is operational,
therefore necessitating a total shutdown. In addition to
the regular year-round maintenance and the maintenance
that is performed durinq the cold outages at Respon-
dent's location, there are, from time to time, capital im-
provements that are made to Respondent's property that
necessitate "tie-in" work to existing facilities of Respon-
dent.
Despite the long collective-bargaining relationship be-
tween the Respondent and Union, there have been differ-
ences as to what particular jobs and what portion of
those jobs that are performed during a cold outage
should be performed by Respondent's maintenance em-
ployees as opposed to an outside contractor. And, fur-
ther, what portion, if any, of the capital improvement
jobs could and should be performed by the unit mainte-
nance employees.
Two or so months prior to any cold outage the man-
ager of engineering and maintenance begins to collect
work orders from the operating department heads, par-
ticularly the construction department and the mainte-
nance department regarding the amount of work that
these various department heads feel is necessary to refur-
bish Respondent's equipment during a cold outage
period. The data is collected and analyzed by the engi-
neering and maintenance manager and his staff. For sev-
eral weeks prior to a cold outage this staff, by means of
bar type charts, determines the amount of work and the
number of manhours they estimate it will take to perform
the work involved. Also, a determination is made as to
whether the work should be contracted out or allow unit
maintenance employees to perform the work. During a
cold outaqe the maintenance employees are required to
work a minimum of 12 hours per day and, on some occa-
sions, have even been permitted to work a qreater
number of hours than that. There are, however, in the
Christmas cold outage, certain no-work days which are
days no employee may be compelled to work. The no-
work days are covered by the collective-bargaining
agreement between the parties. The current collective-
bargaining agreement lists no-work days as Christmas
Eve, Christmas Day, and the day after Christmas, except
as may be required for the protection and/or preserva-
tion of life and property.
As a result of negotiations between the parties, the fol-
lowing language has been in all collective-bargaining
agreements since 1971:
Maintenance-Construction Crew-Guidelines-As It
Applies to Employees Formerly in Local 4902
A. The crew will be used primarily for new con-
struction, however, at times members of the crew
or the entire crew may be used for overload or ex-
traordinarily large maintenance jobs.
E. The Company will continue to meet with Union
officials of former Local 490 on a scheduled basis
(bi-weekly, if necessary, to review work assign-
ments to contractors. During these meetings the
Union will have the opportunity to make sugges-
tions for consideration by the Company.
On June 12, 1979, the parties executed a supplemental
agreement relating to that portion of the collective-bar-
Prior to June 1977, the collective-bargaining agreement wsas adminis-
tered by three locals of the Union, i e, Local 490, Local 364, and Local
512 These functions were consolidated in 1977 and Local 364 has admin-
istered the entire collective-bargaining agreement since that time.
1330
OLINKRAFT. INC
gaining agreement set forth above. The supplemental
agreement, in pertinent part, at paragraph 3 thereof,
states:
The Company further agrees that other than under
unusual circumstances it will meet with the Union
CAR Committee seven (7) days prior to the begin-
ning of work to be performed by outside contrac-
tors as specified at memoranda attachment number
4, paragraph 9E, of the current labor agreement. At
such meeting, the Company will inform the Union
of the name of the outside contractor, the date and
duration of the job to be performed, the scope of
the job, the estimated manhours, and the number of
"tie-ins."
A portion of this supplemental agreement resolved in a
final and binding manner, but, without precedent, all
grievances dated prior to August 21, 1978. The griev-
ances in question dealt primarily with prior allegations of
subcontracting of routine maintenance by Respondent.
The contract provisions including the supplemental
agreement forms the basis for what the parties common-
ly refer to as the CAR Crew and Committee.3 The crux
of the dispute in this case centers around whether the es-
tablishment of the CAR Committee was to be a sounding
board for all subcontracting, including new construction,
refurbishing, and routine maintenance.
Counsel for the General Counsel and the Charging
Party take the position that the CAR Committee was es-
tablished to handle Capital Appropriations Requests in-
volving new construction only, which had the purpose
of affording the Union an opportunity to meet with Re-
spondent prior to outside contractors doing new con-
struction to determine whether any of the new construc-
tion would be done by the Capital Appropriations Re-
quest crew. Counsel for the General Counsel and the
Union contend that the CAR Committee is not the ap-
propriate form for discussion of contracting out routine
maintenance work. Their contention is that the appropri-
ate form for such would be the General Negotiating
Committee which would include the International repre-
sentative. The collective-bargaining agreement herein is
between the Respondent and the International Union.
There is no International representative that is a member
of or permitted to sit on the CAR Committee. Counsel
for the General Counsel's position is that the CAR Com-
mittee was a sounding board for Capital Appropriations
Request projects only. Counsel for the General Counsel
further contends that the subcontracts herein were let
either without giving the Union prior notice or without
giving the Union adequate, timely notice and in either
case without affording the Union an opportunity to bar-
gain with respect thereto in a proper bargaining forum
and, as such, constituted an 8(a)(1) and (5) violation of
the Act.
The Respondent's position is that the CAR Committee
was contractually formed in 1971 and that it has func-
tioned, rightly or wrongly so, as a sounding board for all
a CAR is terminology used by the parties meaning Capital Appropri-
ations Request, and as a part thereof there was a Capital Appropriations
Request Committee and a Capital Appropriations Request Crew
subcontracting that has been done at the Respondent's
facility without regard to whether it was a Capital Ap-
propriations Request new construction or routine mainte-
nance. The Respondent's contention that the CAR Com-
mittee is the appropriate forum would, it contends, dem-
onstrate that it met with the Union, gave the 7-day
agreed-upon notice, discussed the subcontracting of
maintanance work and, thus, fulfilled its bargaining obli-
gations, and as a result, no 8(a)(5) violation could be sus-
tained.
B. The Subcontracts
Paragraphs 10 and 12 of the complaint allege that
during the period of approximately December 17
through 29, 1979, Respondent subcontracted out approxi-
mately 50 to 60 jobs at its West Monroe, Louisiana, fa-
cilities to persons not in the bargaining unit and that Re-
spondent did the subcontracting without prior notice to
the Union and without having afforded the Union an op-
portunity to negotiate and bargain as the exclusive repre-
sentative of the Respondent's employees with respect to
such acts and conduct and the effects of such acts and
conduct. The complaint further, at paragraph 13, alleges
that such actions by the Respondent constitute unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and 2(7) of the
Act.
Local Union 364 President Mike Treno credibly testi-
fied 4 that during the 1979 Christmas outage there were
approximately 50 subcontracts entered into by Respon-
dent for jobs which traditionally had been performed by
bargaining unit employee. Treno was notified on Decem-
ber 16, 1979, by the manager of industrial relations, Paul
J. Moore, Jr., that there would be a joint CAR Commit-
tee on the afternoon of December 17, 1979. At the De-
cember 17, 1979, CAR Committee meeting5 Reggie
Pleasant, Jesse Gunn, and Treno were present for the
Union, and manager of engineering and maintenance,
Robert Hart, Hartly Arnold, John Stimach, and labor re-
lations manager, Hill Harold were present for the Re-
spondent. Treno testified that Hart presented to him a
package of approximately 55 different job orders stating
the Respondent intended to use subcontractors to do the
1979 Christmas outage work. Treno mentioned to Hart
that this was the largest packet that the Union had ever
received and upon a brief examination of the packet by
Treno, it appeared to him that the vast majority of the
jobs were routine maintenance work. Treno indicated it
was going to take some time for the Union to look
through the packet to see which jobs were routine main-
tenance projects and which were new construction.
Treno then inquired of Hart if, once a determination was
I have based the narration of the December 17 1979. CAR meeting
on the testimony of Mike Treno who impressed me a a very articulate
and truthful witness
I do not credit Hart's description of the meeting as being an outage
meeting, I find he was mistaken in his terminology and that neither the
collective-bargaining agreement, the supplemental agreement of June 12,
1979, nor any of the forms generated as a result of either of those docu-
ments made any reference to an outage meeting. It is quite clear that
each of those present underslood and iewed the meeting as a meeting of
what had become cimmonl) referred to as the CAR Committee
1331
DtCISI()NS ()F NATIONA. I.ABO()R R.ATI()NS BO()ARI)
made by the Union that this was their unit work, would
Hart be willing to give the work to unit employees.
Hart, according to the credited testimony of Treno re-
sponded, "No, due to the fact that it took a certain
amount of lead time for the outside contractors to obtain
the people that they were going to need to do these jobs.
The contract had already been let. It had already been
signed. The contractors had already been committed."
Treno informed Hart that the Union would file griev-
ances on the routine maintenance work being subcon-
tracted out. Treno then inquired of Hart why Respon-
dent did not follow the past procedure of allowing main-
tenance personnel to go on longer work days a week or
two prior to the outage, to work weekends and days off
in an effort to eliminate work that did not absolutely
have to be done during the cold outage. Treno inquired
as to why the work was being done on December 24, 25,
and 26, which were no-work holidays. Hart indicated the
work or the vast majority of it needed to be done while
the mill was at a cold outage. The basic substance of the
December 17, 1979, meeting for the greater part is not in
dispute.
The General Counsel placed in evidence, as General
Counsel's Exhibit's 11(a)-ll(bb), inclusive, "Notification
of Contractor" work forms that were given to Treno at
the December 17, 1979, meeting by Respondent. General
Counsel's Exhibits 11(a)-ll(bb), inclusive, were not the
complete packet of the "Notification of Contractor"
work documents given to the Union at the December 17,
1979, meeting, however, they were the ones the Union
contended were routine maintenance work. General
Counsel's Exhibits. 12(a)-12(bb) are union filed griev-
ances protesting the subcontracting out of the jobs de-
scribed in General Counsel's Exbibit's 11(a)-Ill(bb) inclu-
sive. A review of the documents indicate, and I so find,
that they were jobs that the unit production and mainte-
nance employees could have performed. Neither Treno
nor the Union had been informed prior to December 17,
1979, that the subcontracts that were in fact let to the
various contractors as indicated on the "Notification of
Contractor" work forms were going to be let. The work
described on the forms was performed by the subcon-
tractors between the period of December 17 and 29,
1979.
In addition to those subcontracts that the Union was
notified of on December 17, 1979, there were other jobs
performed by outside subcontractors, that the Union was
never informed of by management. The only way the
Union became aware of their existence was when they
discovered a particular subcontractor at the Respon-
dent's facility and inquired of the subcontractor what it
was doing there. The Union contends and the evidence
indicates that these were jobs which could have been
performed by unit employees. The Union filed griev-
ances regarding these particular jobs being subcontracted
which grievances with descriptions of the jobs per-
formed were received in evidence as General Counsel's
Exhibits 14(a)-14(j). These jobs were performed by out-
side contractors between the period of December 17 and
29, 1979. Treno credibly testified that the Union was in
no way informed that the work was going to be per-
formed before it was actually performed. I find in agree-
ment with the Union's contention that the work de-
scribed in General Counsel's Exhibits 14(a)-14(j) was
work that could have been performed by unit employees.
Treno testified that following the December 17, 1979,
CAR Committee meeting there was never any further
discussions between the Union and the Respondent re-
garding the Respondent's decision to subcontract the
jobs that were performed by the subcontractors during
the Christmas outage. Treno attempted to contact Hart
via telephone on December 18 and 19, but was unable to
do so and Hart did not return Treno's telephone calls.
Treno credibly testified that the purpose of the CAR
Committee brought about by the 1971 negotiations and
the supplemental agreement of June 12, 1979, was to
afford the Union an opportunity to sit down with Re-
spondent prior to any outside contractors coming in at
Respondent's facility to perform any new construction
for the purpose of determining whether any of the new
construction could be performed by the CAR crew,
which crew was composed of unit employees. Treno
stated the Union had the routine maintenance already
and that they were attempting by way of the CAR Com-
mittee to obtain a portion of the new construction that
was being performed at Respondent's facility for unit
employees. Treno credibly testified that it was never his
understanding nor did anyone from management ever in-
dicate to him that the CAR Committee was to discuss
subcontracting of routine maintenance work. Treno testi-
fied regarding the supplemental agreement that the
Union had no way of knowinq when a subcontractor
would be coming in to perform new construction so the
Union negotiated the notice requirement of the supple-
mental agreement of 1979.
Treno's testimony was unrebutted that there would
have been a monetary benefit to unit employees in the
amount of any overtime they would have gotten had
they been able to perform any of the work that was sub-
contracted out, particularly any of the work that might
have been performed prior to rather than during the cold
outage period. I credit Treno's testimony that the Re-
spondent had never in the past subcontracted out that
quantity of maintenance work during an outage. I do so
in this particular respect in that the Respondent came
forward with no persuasive evidence that it had subcon-
tracted out that quantity of routine maintenance work in
the past. Respondent did come forward with some evi-
dence to indicate the number of hours of overtime that
the unit employees had performed. However, this does
not address itself specifically to the amount of routine
maintenance subcontracted out. In the past according to
Treno, Respondent had allowed unit employees to per-
form work prior to the outages that did not have to be
performed during an actual outage period.
Hart acknowledged in his testimony that the subcon-
tracted jobs of the 1979 Christmas outage performed by
outside contractors were generally considered routine
maintenance jobs, that the unit employees could have
performed the work if they had the time, and that the
employees had the skill, and Respondent had the neces-
sary tools to enable them to perform the jobs. Hart fur-
ther acknowledged that at the time of notification to the
1332
OLINKRAFT, INC.
Union on December 17, 1979, that most of the decisions
had already been made to subcontract the jobs. He also
acknowledged that this was the first time that the Union
had been informed that the jobs were going to be sub-
contracted. Hart acknowledged that the jobs described in
General Counsel's Exhibits 14(a)-14(j) were jobs that
were ordinarily handled by maintenance employees. Hart
noted that, with reference to General Counsel's Exhibit
14(j), the work involved there was the building of scaf-
folds which could normally be performed by unit main-
tenence employees, however, the scaffolding was built
by employees who were subcontracted by the subcon-
tractor that performed the job described in General
Counsel's Exhibit 14(j).
Employee Reggie Pleasant credibly testified that a job
was performed by an outside contractor during the
Christmas outage of 1979 which consisted of removing a
preexisting wall at the Respondent's location. This work
was within the expertise of the unit employees according
Pleasant and a grievance was filed on the matter on Jan-
uary 11, 1980. A copy of the grievance was received in
evidence as General Counsel's Exhibit 18. I conclude
that the work described in General Counsel's Exhibit 18
could have been performed by unit employees. Further,
Pleasant testified that based on his long working experi-
ence for the Respondent that certain of those jobs in evi-
dence as General Counsel's Exhibits 11(a)-ll(bb) could
have been performed at a time other than when the mill
was shut down. He testified that 11(a), 11(c), items 10
and 3, 11 (f), 11 I), 11(1), and I(bb) could have been per-
formed while the mill was operational.
Manager of Labor Relations, Bill W. Harold, testified
regarding the December 17, 1979, meeting that the thing
that made the greatest impression on him was the com-
ments made by employee Jessis Gunn concerning the
large number of jobs that were being subcontracted out.
Harold states this: "was just apparently opposed to years
past." Harold testified that the crux of the matter as dis-
cussed at the December 17, 1979, meeting was a time
element, that Respondent did not question the fact that
unit employees could do the work or that they had done
the work in the past, but it was just a matter of having
personnel there to do the work at the time Respondent
wanted the work performed.
C. Discussion and Conclusions
Respondent takes the position that the meeting of De-
cember 17, 1979, satisfies the requirements as outlined in
the supplemental agreement between the Respondent and
Union, dated June 12, 1979, and, as such, satisfies their
bargaining obligations. Further, Respondent takes the po-
sition that it has bargained in good faith with the Union.
and as an additional position that it has met the require-
ments of Westinghouse Electric Corporation, Mansfield
Plant, 150 NLRB 1574 (1965),
The contracting out of work done or which may be
done by employees in a bargaining unit as in the case at
hand is a subject of mandatory bargaining or, stated oth-
erwise, the replacement of employees in an existing bar-
gaining unit with those of an independent contractor to
do the same work under similar conditions of employ-
ment is a statutory subject of collective bargaining under
Section 8(d) of the Act, and an employer who unilateral-
ly subcontracts "bargaining unit" work without affording
the employees' bargaining representative an opportunity
to discuss such proposed actions frustrates collective bar-
gaining and violates Section 8(a)(l) and (5) of the Act.
Fibreboard Paper Products Corporation v. N.L.R.B., 379
U.S. 203 (1964). Therefore, it is without question that the
Respondent was obligated to bargain with the Union re-
garding the subject matter of subcontracting. The Re-
spondent, in the case before us, admits the Union was
not notified of the various subcontracts that it entered
into prior to the time it met with the Union on Decem-
ber 17, 1979. 1 therefore disagree with Respondent's con-
tention that it bargained in good faith with respect to the
December 17, 1979, meeting with the Union. I conclude
the Respondent did not bargain in good faith. If Respon-
dent has acted lawfully it must be that it has abided by
negotiated agreements between it and the Union regard-
ing subcontracting or that it has met the Westinghouse,
supra, standards as is its contentions.
I find that the memorandum attachment 4, subpara-
graph 9, paragraphs A and E thereunder at pages 76 and
77 of the current collective-bargaining agreement (G.C.
Exh. 10) by its clear language deals for the most part
with a crew that is to be used primarily for new con-
struction as indicated in paragraph 9A and as indicated
at paragraph 9E Respondent and Union will meet to
review work assignments to contractors and the Union
will make suggestions to Respondent regarding new con-
struction. I find it would be regarding new construction
because paragraph 9E must be read in conjunction with
paragraph 9A. I further find the clear wording of the
supplemental agreement entered into between Respon-
dent and Union dated June 12, 1979, at paragraph 3
thereof indicates that the Respondent's agreement to pro-
vide to the Union the name of the outside contractor, the
date and duration of the jobs to be performed, and the
scope of the job with the estimated manhours and
number of tie-ends refers back to paragraph 9E of the
memorandum attachment 4 of the collective-bargaining
agreement and as such paragraph 3 of the supplemental
agreement refers to new construction as opposed to rou-
tine maintenance. This finding is further substantiated by
the fact that the Union had objected to routine mainte-
nance matters being discussed at the CAR meetings and
each time routine maintenance was subcontracted the
Union filed grievances thereon. I find unpersuasive the
testimony of Harrell to the effect that the Union had
never complained that the supplemental agreement and
memorandum attachment 4, paragraphs 9E and A, of the
collective-bargaining agreement did not refer to routine
maintenance. I therefore conclude that the CAR meet-
ings with Respondent were meant to involve new con-
struction and that the CAR meetings were not the
proper forum in which to negotiate the subcontracting of
routine maintenance work. I conclude that Respondent
did not bargain in the proper forum with the Union re-
garding subcontracting of routine maintenance work, as
the agreement was between the International and the Re-
spondent. I further find that Respondent at its December
17, 1979, meeting with the Union presented the union
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a fait accompi, even if the forum had been proper. I
also find unpersuasive Respondent's contention that it
could have modified its contract purchase orders with its
subcontractors as establishing that its actions on Decem-
ber 17, 1979, did not amount to afait accompli.
The fact that Respondent may have had a reasonable
basis for its action does not excuse it from failure to
notify the Union of its intention to subcontract unit
work, and further to give the Union an opportunity to
bargain with respect thereto. Collective bargaining con-
templates negotiations without regard to the merit of the
respective positions of the parties and without regard to
the fact that one of the bargaining participants may feel
that its position is absolutely correct.
In Westinghouse, supra, the Board set forth five factors
to be taken into consideration regarding an employers
obligation to its employees collective-bargaining repre-
sentative with respect to contemplated subcontractingq.
Respondent indicated it based its defense, at least in part,
upon compliance with the five requirements outlined in
Westinghouse, supra. The considerations of Westinghouse,
are: (1) whether motivated solely by economic consider-
ations; (2) whether it comported with the traditional
methods by which the employer conducted its business
operation; (3) that it did not vary significantly in kind or
degree from what has been customary under past prac-
tice; (4) that it had no demonstrable adverse impact on
the employees in the unit; and (5) that the union had had
the opportunity to bargain about changes in existing sub-
contracting practices at general negotiating meetings.
I find with respect to the first consideration Respon-
dent herein was for the greater part motivated by timing
considerations with economic considerations being sec-
ondary. Respondent did present evidence that indicates
that certain of the maintenance could only be performed
during an outage and that Respondent during the 4-day
outage would stand to lose tonnage sales, based on sale
price value not profit, of between $600,000 and $750,000
per day. I conclude however that Respondent was not
motivated solely by economic considerations, but was
also motivated by a desire to have the work performed
at its preferred time, rather than a mutually agreeable
negotiated time. Respondent and Union might have been
able to agree that portions of the work could have been
done by unit employees prior to the actual outage. I find
that Respondent comported with the traditional method
by which it had conducted its business operations; how-
ever, its traditional methods had been challenged each
time by the Union; i.e., each time routine maintenance
had been subcontracted the union, at least on each occa-
sion that it had knowledge of, filed grievances thereon.
There can be little question but that Respondent was
conducting business in its traditional manner, however,
its traditional manner of subcontracting unit maintenance
work had been challenged each time by the Union as
being improper. There is credited evidence that in the
December 1979 outage there was a significant change in
the degree of what had been customary under past estab-
lished practice. There was a substantial increase in the
number of subcontracts of routine maintenance work that
Respondent entered into for the Christmas 1979 outage.
Respondents explanations that it did not have enough
maintenance employees available to perform the work,
or that it was necessary to subcontract the work during
the cold outage, or during no-work days by the Union,
did not exonerate Respondent from its failure to give
notice to and negotiate with the Union regarding the
subcontracting of unit work. Although on the status of
this record the adverse impact on employees in the unit
may not have been established with exactness it never-
theless was established that employees of the unit could
have performed, had they been permitted to, certain of
the jobs prior to the Christmas outage of 1979 that was
in fact, performed during the outage. Thus unit employ-
ees may well have lost extra hours of overtime. There-
fore, I conclude a demonstrable adverse impact on the
employees in the unit has been established. Finally, it ap-
pears that the Union and Respondent had bargained re-
garding the procedure to be followed with respect to
subcontracting of new construction but on the status of
this record it does not appear with certainty that the par-
ties engaged in effective negotiations regarding subcon-
tracting of routine maintenance work at any general ne-
gotiating sessions. I therefore conclude that Respondent
has not met the necessary requirements of a Westinghouse
defense.
Accordingly, and in light of the above, I find that the
Respondent has violated the Act as alleged in the com-
plaint by subcontracting work that could have been per-
formed by unit employees without having afforded the
Union an opportunity to negotiate and bargain as the ex-
clusive representative of Respondent's employees with
respect to such acts and conduct and affects of such acts
and conduct. I do so by having concluded that Respon-
dent did not bargain in good faith, did not bargain in the
proper forum or provide the Union with meaningful
notice in the forum that it did bargain in but instead pre-
sented the Union with a fait accompli in those jobs out-
lined in General Counsel's Exhibit's 11(a)-ll(bb) and
that no notice was provided to the Union regarding
those jobs outlined in General Counsel's Exhibit's 14(a)-
14(j), inclusive, and General Counsel's Exhibit 18, and
that Respondent did not meet the burden or require-
ments of any of the defenses it advanced.
IV, HI ::FIECT OF THlE UNFAIR lABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
Il1, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed
to effectuate the policies of the Act.
I have found that Respondent violated its collective-
bargaining obligations by subcontracting bargaining unit
work without affording the Union adequate. timely
1334
OLINKRAFT. INC.
notice of its intentions and an opportunity to bargain col-
lectively in regard thereto. In order to undo the effects
of these violations of the Act, I shall recommend that
Respondent make its employees s whole for any loss of
earnings suffered by them by reason of Respondent's un-
lawful conduct found herein 7 together with interest
thereon at the rate to be computed in the manner pre-
scribed in F. W Woolworth Company, 90 NLRB 289
(1950) and Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing and Healing Co., 139
NLRB 716 (1962), enforcement denied on different
grounds 322 F.2d 913 (9th Cir. 1963).
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make tne following:
CONCLUSIONS OF LAW
1. By unilaterally subcontracting bargaining unit work
without affording the Union adequate, timely notice of
its intentions and without affording the Union an oppor-
tunity to bargain collectively in regard thereto, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (I) of the Act.
2. By reason of the foregoing conduct which consti-
tutes interference with and restraint and coercion of em-
ployees in the exercise of riqhts guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusion of
law and the entire record in these proceedings and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER s
The Respondent, Olinkraft, Inc., West Monroe, Louisi-
ana, its officers, agents, successors, and assigns, shall:
s Upon the state of the record presently before me I am unable to de-
termine which employees suffered loss of earnings by reason of Respon-
dent's unlawful conduct found herein However, his determination can
be made as part of the compliance proceedings
I Again, the evidence in this case does not establish the amount, if any.
of earnings lost by Respondent's employees, However, the method for
computing loss of earnings and the computation thereof can he deter-
mined as part of the compliance proceeding. It is noted that, during the
period in question, the maintenance employees were working a minimum
of 12 hours per day. In any determination of wages due employee consid-
eration should be given to the fact that the employees were already
working a minimum of 12 hours per day.
R In the esent no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the find-
1. Cease and desist from:
(a) Subcontracting any bargaining unit work or
making or affecting any change in conditions of employ-
ment of the employees in the collective-bargaining unit
without first giving notice to the employees' collective-
bargaing representative and affording such representative
an opportunity to engage in collective bargaining with
respect thereto, and without complying with all other
provisions of Section 8(d) of the National Labor Rela-
tions Act, as amended.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make whole its employees for any loss of earnings
they may have suffered as a result of Respondent's un-
lawful subcontracting of bargaining unit work in the
manner described in the section of this Decision entitled
"Remedy."
(b) Post at its place of business in West Monroe, Lou-
isiana, copies of the attached notice marked "Appendix
A." 9 Copies of said notice, on forms provided by the Re-
gional Director for Region 15, after being duly signed by
Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be main-
tained by if for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ings, 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
9 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1 335