Union Carbide Corp.

National Labor Relations Board - Board Decisions

Sep 19, 1969

178 N.L.R.B. 504 (N.L.R.B. 1969)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Corporation , Carbon Products
Division , Clarksburg Works and Oil , Chemical and
Atomic Workers International Union , Local 3-276,
AFL-CIO. Case 6-CA-4191
September 19. 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On October 1, 1968, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and the
Respondent filed a brief in answer to the exceptions
and brief of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs. and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders the complaint herein
be. and it hereby is, dismissed in its entirety.
MEMBER BROWN, concurring:
The matters considered in this proceeding, in my
opinion. should be disposed of by the parties within
the framework of the grievance and arbitration
provisions of their current bargaining agreement.
For over two decades these parties have
maintained a generally amicable bargaining
relationship while coping with problems arising from
product and operational changes similar to those
involved herein. Subcontracting has been practiced
by Respondent in various forms in many differing
circumstances over the years. and the parties have
disposed of problems arising therefrom on a
voluntary basis. Where the change was not within
the contract's management rights provision, the
'While Member Zagoria also subscribes to the principle set forth in
Member Brown's concurring opinion, he agrees with the Trial Examiner
that Respondent 's subcontracting did not, in any event, constitute a
violation of the Act
matter has been handled by advance bargaining,
while disagreements have been settled through
utilization of grievance, arbitration, and postevent
bargaining.
There is no suggestion that the changes which are
the subject of the instant charge were other than
economically motivated. There is disagreement on
whether some of the changes are within the scope of
the management rights contract provision and
whether prior notice was required or adequate.
However, each was made the subject of a grievance
which was carried through the second step of the
contract grievance procedure, when the charging
party chose a change in forum, and Respondent
remains willing to meet and discuss the changes and
their effects as a grievance or otherwise.
In these circumstances, I believe these matters
should be settled through the procedures the parties
themselves have voluntarily established.
Accordingly, I would dismiss the complaint without
deciding the merits of the controversy.
TRIAL EXAMINER'S DECISION
STATFMFNT OF THE CASE
HENRY L. JALETTE, Trial Examiner: This case was tried
in Clarksburg, West Virginia on July 31, 1968,' pursuant
to a charge, filed on March 18 by Oil, Chemical and
Atomic Workers International Union, Local 3-276,
AFL-CIO, herein called the Union, and pursuant to a
complaint issued on June 10 The issue presented is
whether Union Carbide Corporation, Carbon Products
Division, Clarksburg Works, hereinafter referred to as
Respondent, violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by
subcontracting the work of repairing wooden shipping
pallets and dividers, the fabrication of stainless steel bolts.
and the manufacture of furnace side blocks.
Upon the entire record,' including my observation of
the witnesses, and after due consideration of the briefs
filed by General Counsel and Respondent, I make the
following:'
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a New York corporation engaged in the
production and nonretail sale of carbon and graphite
anodes and electrodes at a plant located in Clarksburg,
West Virginia. Respondent annually purchases directly
from points outside the State of West Virginia, goods
valued in excess of $50,000 and annually ships directly
from said plant to points outside the State of West
Virginia, goods valued in excess of $50,000. Respondent
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
'Unless otherwise indicated , all dates refer to the Year 1968
'Motions to correct the record filed by General Counsel and Respondent
are hereby granted
'Respondent' s motion to dismiss made at the close of trial, on which I
reserved ruling, is disposed of in accordance with the findings and
conclusions herein
178 NLRB No 81
UNION CARBIDE CORP. 505
the Act. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
II. THE ALLEGED UNFAIR I ABOR PRACTICES
A. Background
Since April 1946, the Union has been the certified
bargaining representative of Respondent's employees at its
Clarksburg plant in a production and maintenance unit
Since that time, the Respondent and the Union have been
parties to a series of collective-bargaining agreements and
there has been only one strike which lasted approximately
10 days The relationships of the parties have been
generally amicable and there is no contention that the
subcontracting in issue herein was motivated by other than
economic considerations.
The current agreement has a term from June 26, 1967,
to June 25. 1970. It contains a "-Management Functions"
clause,' but does not contain any provision dealing
specifically with subcontracting The issue has been raised
by the Union in past contract negotiations, the last time
being in 1962 At that time no agreement was reached to
include a provision in the contract prohibiting
subcontracting and the Union dropped the matter.
However, the negotiations had resulted in Respondent's
agreement to a special job classification to cover items
about which the Union had complained.
In the many years that the Union has been the
exclusive bargaining representative of Respondent's
employees. the Respondent has subcontracted work which
was performed by unit employees or which they could
perform For example, for many years Respondent made
its own shipping boxes, but in 1961 it discontinued the
operation and purchased boxes.
Maintenance and construction work has been done by
both unit employees and subcontractors. Contractors have
been used to install new piping or repair leaks in the water
main. Although Respondent employs garage mechanics
and helpers to maintain its rolling stock, major repairs are
subcontracted. Stainless steel saggars have a welded seam
which fails occasionally and repairs are made both by
Respondent's own welders and subcontractors.
Coke is a basic ingredient of the electrodes
manufactured by Respondent, but it must be calcined
Respondent purchases both raw and calcined coke. When
purchased raw, it must be calcined by unit employees.
The surface of electrodes sometimes becomes
crystallized and must be "skinned" to permit
impregnation. The skinning is done both by
subcontractors and unit employees. The same is true in
the machining of head electrodes.
Although Respondent employs approximately 17
electricians who frequently wind the armatures of
electrical motors, on many occasions that work has been
subcontracted.
Respondent contends that the Union has been aware of
the foregoing, and, as pointed out above, the Union
complained about subcontracting in the 1962 negotiations
In 1961, the Union grieved over the operation of a crane
by contractors, but the grievance was denied because the
operation of the crane related to the installation of new
steam lines and was unrelated to production work or work
of any kind normally performed by bargaining unit
employees. An Arbitration Panel upheld Respondent,
noting that the contract contained no prohibition on
subcontracting and that the Union had not objected to the
subcontracting of the installation of the steam lines but
only to the operation of the crane
The gravamen of the instant case is the Respondent's
subcontracting of work on three specific items which had
been performed exclusively by unit employees.
B. The Subcontracting
1 Pallet repair
Respondent uses wooden dividers and pallets for the
storage and transportation of its product. The pallets are
used both for the shipment of goods to customers as well
as for intraplant transportation of materials For its
intraplant use alone, Respondent employs about 25.000
pallets. most of which are acquired through purchase.
Since these pallets are made of wood, they are frequently
damaged; however, a certain number can be repaired and
salvaged Respondent's witness, William Haller, estimated
that 5 percent of the 25,000 pallets were obtained through
the salvage and repair of damaged pallets.
The current contract contains a classification of pallet
repairman and until May 1967 this classification was filled
by one man who spent most of his time repairing pallets
In May 1967. pursuant to a cost study made by its
Industrial Engineering Department, Respondent decided
to discontinue the repair of pallets because it concluded
that it was more economical to discard broken pallets and
purchase new replacements This decision was made and
implemented without notice to or consultation with the
Union. As a result of the decision, the pallet repairman
was forced to bid into some other job classification There
is no evidence that he complained to the Union or that the
Union was aware of what had happened
Thereafter, damaged pallets were destroyed, generally
by burning in a dump adjacent to Respondent's plant
This procedure continued from May 1967 until January
1968, at which time it was decided to solicit bids for the
repair of pallets. The bid by M & M Contractors was at a
price less than, or just about, half the cost of a new pallet.
The first purchase order was approved on February 19,
and the first shipment of repaired pallets was received by
Respondent on March 13
Between February 19 and July 26, the contractor
repaired 777 pallets and 1,971 dividers at a cost of
$932.40 and $1635.93 respectively.'
According to the Union, the first notice it had of the
subcontracting of the repair of pallets was in late January
when a member of the negotiating committee advised
Union President Ashcraft that yard personnel had
reported to him that pallets were leaving the plant.
Thereupon, Ashcraft called John Arnold, assistant plant
manager in charge of Industrial Relations. Arnold told
him he knew nothing about the matter, but that he would
check and call back. According to Ashcraft, Arnold never
did return the call. and Ashcraft talked to him in late
February, but Arnold still could give him no answer. The
next time the issue was discussed was at a March 14
grievance meeting
'Article 11, Section 1 "The Company's right to manage its plants and
affairs, to hire, discharge , promote, demote, and direct the working forces
is unqualified as long as this right is not used in violation of any provision
of this Contract."
'These totals may not be entirely accurate, but they have been computed
from exhibits which are not too legible . Since neither General Counsel nor
Respondent has totaled the figures , any inaccuracy in my calculations
would appear to be of little moment
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Arnold, the issue was first brought to his
attention by a union steward on or about February 16 and
this was followed by a call from Ashcraft on or about
February 18 or 19. Arnold told Ashcraft he would have to
check and return to him after he had obtained sufficient
information. Arnold testified that within a day thereafter
he talked to Ashcraft and told him that the reason pallets
were being sent out was that the Company could realize a
savings through having pallets rebuilt rather than
repairing them with its own employees. According to
Arnold, between February 16 and March 14, he and
Ashcraft had about six conversations about the pallets,
and in each one he told Ashcralt that the Company had
decided to have the pallets repaired by M & M
Contractors because of the savings.
2. The fabrication of stainless steel bolts
Stainless steel bolts consist of rods of 1 inch diameter
which are threaded on each end and which vary in length
from 6 to 18 inches. These bolts are used in the
connection of copper rods in the Respondent's graphite
furnace.
The job performed by unit employees with respect to
the stainless steel bolts consisted in machining about a
3-inch common thread on each end of the bolt. This was
done on a pipe threader on a nonscheduled, or as
required, basis by employees in various classifications, but
principally by hourly rated employees such as copper
repairmen and maintenance helpers.
According to Respondent, in the summer of 1967 a
study was made of its costs to manufacture the stainless
steel bolts and it was determined that a vendor named
General Machine Company could machine the bolts at an
annual saving of $1.500.6 General Machine Company's
first bid was dated January 22, 1968, and the first delivery
of bolts was made on February 23, 1968. Between
February 23, 1968 and July 22, 1968, Respondent received
1,090 bolts which were fabricated for it by General
Machine Company at a cost of $1,725.05 Respondent
estimated that the fabrication of steel bolts by its own
employees required approximately 250 man hours
annually. The record does not indicate how long the
Respondent had used its own employees to do this work
prior to contracting it out.
According to the Union, the first knowledge it had that
stainless steel bolts were being purchased from General
Machine was in late February as a result of a report to
Union President Ashcraft from Committeeman Carvelli
who, in turn, had learned about the purchase from a
storeroom clerk Ashcraft called Arnold. and, as in the
case of the pallets, was informed that Arnold had no
knowledge of the situation, but that he would check.
According to Ashcraft, Arnold never contacted him and
the issue was not discussed again until the grievance
meeting on March 14.
According to Arnold, his first conversation with
Ashcraft occurred on or about February 21. Between
February 21 and March 14, Arnold testified Ashcraft
spoke to him at least 5 or 6 times requesting that
Respondent reconsider the decision, and in a conversation
on March 11, he requested that it be prepared to give the
Union a final answer at the meeting scheduled for March
14 Arnold testified that in every conversation with
`This saving did not take into account the saving resulting from the
reduced wear on the pipethreading machine which was designed to machine
soft iron pipe
Ashcraft concerning the bolts and pallets, he went into
detail explaining to Ashcraft why the Respondent had
made the decisions in question.
3 The manufacture of furnace side blocks
Side blocks are used on the sides of graphite furnaces
to contain the product during the firing of the furnace
which is done at a temperature ranging from 2 to 3
thousand degrees centigrade.
From 1942 to the mid-50's, Respondent purchased all
its side blocks. Beginning in the mid-50's until about 1963,
Respondent made the side blocks in the plant, including
mixing its own concrete in 1963, it discontinued the
mixing and purchased ready mixed material. As a result,
the side block crew was reduced from five to three. There
is no evidence that Respondent notified the Union of that
decision or that the Union protested.
Side blocks were not customarily made by Respondent
on a year round basis due to a problem of freezing during
winter Respondent estimated that the job required three
employees, full time, for about 6 or 7 months Whenever
it became time to start manufacture, employees could bid
for the three available jobs which are described in the
contract as Block Plant Truck Operator, Block Plant
Operator, and Head Block Plant Operator. No special
skills were required and the crew changed constantly. The
last time side blocks were fabricated by Respondent was
during the period from approximately May 1966 through
October 1967.
According to Respondent, it had long been experiencing
a gradual deterioration in the life of the side blocks, from
36 bakes per block to 18 bakes. In addition, according to
Industrial Engineer Haller, improperly fabricated blocks
presented a safety hazard due to the possibility of
explosions from air pockets in the block Haller testified
such explosions had occurred at the Clarksburg plant and
that such an explosion had caused a loss of life in one of
Respondent's plants in England. Haller could not specify
when any explosion had occurred at Clarksburg.
To solve the side block problem, Respondent consulted
with professional concrete manufacturers and
specifications were developed to attain the conditions
desired by Respondent The record does not indicate when
these consultations took place, nor when the specifications
were prepared. Haller testified that Respondent fabricated
blocks according to these specifications using its own
employees, but there was no increase in the blocks' bake
life. Accordingly, bids were solicited from concrete
manufacturers and were received on February 15. The low
bidder was Clyde Shrum, a general contractor, who
appears to have been contracting with Respondent on
various matters for a number of years. The first purchase
order was approved on March 6, 1968. The first delivery
was made on April 4, 517 blocks were delivered between
April 4 and July 15, at a total cost of $42,081. According
to Haller, Respondent estimated a $15,000 annual saving
by contracting out the work, assuming no improvement in
block life. An increase in block life to 36 bakes would
represent an additional saving of $40,000
The Union first received notice of the side block
developments at a regularly scheduled grievance meeting
on March 14. According to Ashcraft, after the discussion
of some pending grievances, Arnold told the union
representatives that Respondent had gone out of the block
business. Arnold explained why and that Clyde Shrum
was the contractor.
UNION CARBIDE CORP. 507
According to Arnold . he initiated the discussion on side
blocks by stating to the Union that ". . . the Company
was formulating a decision to purchase side blocks from a
vendor rather than manufacture them in the plant " In
reply to a question by Ashcraft, Arnold stated Shrum had
placed the most favorable bid and would be the vendor.
He explained in detail Respondent ' s reasons for the
conclusion it had reached.
On March 25, the Union filed grievances at the second
step over the subcontracting of the three foregoing items.
Respondent rejected the grievances. Since March 14, the
parties have not met to discuss the grievances which have
been held in abeyance pending decision herein. In none of
the discussions, either prior to or on March 14 , did the
Union suggest alternative courses of action Respondent
could adopt to achieve its objectives. Its only reply to
Respondent ' s statement of position on all three items has
been that the Respondent was contracting out bargaining
unit work and that there were laid-off employees who
could perform the work.
The normal complement of production and
maintenance employees at the Clarksburg plant is 675.
Between July 28. 1967, and September 15, 1967, 134
employees were laid off. Respondent began recalling
employees on January 15, 1968, and by the end of
January, 59 employees had been recalled , by the end of
February, 54 more had been recalled and by March 14, all
but 4 had been recalled . Those four were recalled on April 8
Iil. ANALYSIS AND CONCLUSIONS
The first issue is whether Respondent did in fact
subcontract any of the work here in issue without notice
to or consultation with the Union. Respondent contends
that whatever obligation it may have had to notify the
Union that obligation was fultilled.
According to Respondent. the subcontracting was not a
fait accompli until: iii the case of the bolts, February 23;
the pallets, February 28; the side blocks, April 25. These
are the dates on which the first deliveries were made of
each item, pursuant to previously validated purchase
orders, and Respondent contends that there was no
contract by the very terms of the purchase orders until
shipment of the goods ordered. Inasmuch as it had
discussed the matters with the Union prior to any of the
deliveries, Respondent submits it had fulfilled its
bargaining obligation.
I find no merit to this contention. Whether Respondent
had finalized its decision and contracted out unit work
before discussing them with the Union does not depend on
when a formal contract came into existence. See
American Oil Company, 155 NLRB 639, 648. It depends
rather on all of the facts of the case, and in the instant
case, it is clear that Respondent had finalized its decisions
long before the delivery dates on any of the items.
In the case of the pallets, there is uncontradicted
testimony that in late January or early February,
employees were loading trucks with damaged pallets for
delivery to the contractor. On February 16, the repair of
pallets was requisitioned and the purchase order was
approved on February 19. On the basis of these facts, I
find that Respondent had "contracted out" the pallet
repair work by February 16. There is no evidence that
Respondent had notified the Union of its plans, even less
its decision , at any time prior to February 16
As to the bolts, the contractor's bid was made on
January 22 and the first delivery was on February 23. It is
evident, therefore, that the Respondent had contracted out
the work some time before February 23. The earliest date
given by Respondent of a conversation with the Union on
the matter was February 19 when a steward mentioned it
to Arnold. The next time it was mentioned was February
21 in a conversation initiated by Ashcraft In order for the
bolts to have been delivered February 23, an order must
have been issued a reasonable time before that date. I
conclude that the fabrication of bolts was contracted out
before February 19 and that this action was taken without
notice to the Union.
As to the side blocks, the first requisition was approved
on March 6 and the purchase order validated March 12,
by which date I conclude Respondent can be deemed to
have contracted out the manufacture of side blocks. There
is no evidence that Respondent had notified the Union of
the contracting out prior to the meeting of March 14
In short, I find as alleged in the complaint that
Respondent contracted out pallet repair work, the
fabrication of bolts, and the manufacture of side blocks
without notice to the Union and without affording the
Union an opportunity to bargain over the decision or its
effects on unit employees prior to its decision.'
This finding, however, does not dispose of this case
Not every unilateral subcontracting of unit work is to be
held violative of an employer's obligations under Section
8(a)(5) of the Act In Shell Oil Company, 149 NLRB 305,
the Board indicated that the principles governing the
subcontracting of unit work set forth in its earlier
decisions in Town & Country Manufacturing Co , Inc,
136 NLRB 1002, enld. 316 F.2d 846 (C A. 5), and
Fibreboard Paper Products Corp . 138 NLRB 550, enfd.
sub nom. East Bay Union of Machinists Local 1304.
United Steelworkers of America, AFL-CIO, etc v.
N.L R B, 322 F.2d 411 (C.A D C.) affd. 379 U S 203,
were not meant to be hard and last rules to be
mechanically applied irrespective of the circumstances of
the case. Rather the Board stated at page 307, "In
applying these principles, we are mindful that the
permissibility of unilateral subcontracting will be
determined by a consideration of the setting of each case.
Thus, the amount of time and discussion required to
satisfy the statutory obligation `to meet at reasonable
times and confer in good faith' may vary with the
character of the subcontracting. the impact on employees,
and the exigencies of the particular business situation
involved. In short, the principles in this area are not, nor
are they intended to be, inflexibly rigid in application."
The importance of this approach to subcontracting
cases is no better illustrated than in this case. Several of
the factors present in this case, if taken singly. could
arguably he discounted as a defense to Respondent's
'In submitting that it had fulfilled its obligation to notify the Union of
the subcontracting prior to reaching a final decision , Respondent adverts to
the testimony of Industrial Relations Manager Arnold that he had
discussed the matter of the pallets and bolts with Ashcraft 5 or 6 times
before March 14 Ashcraft denied having the discussions described by
Arnold, and General Counsel submits he should be credited. My
conclusion that the Respondent subcontracted the work in question without
notice to the Union is not dependent on a credibility determination Both
Ashcraft and Arnold appeared truthful and nothing in the demeanor of
either suggested that he was not testifying truthfully. In any event , in none
of the conversations did Respondent fulfill its obligation to notify the
Union. rather , it is evident from Arnold's testimony and affidavit that
whatever discussions he had with kshcraft were merely to explain what
Respondent had done . I do not accept Arnold 's testimony that he told
4shcraft that Respondent was "considering contracting ' or "formulating a
decision" as an accurate representation of the situation existing when he
claims to have made such statements
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilateral conduct; yet cumulatively their presence
persuades me that Respondent did not violate the Act, as
alleged
For example, the fact that the contract contains a
management rights clause is not necessarily a defense.
Compare The Fafnir Bearing Company, 151 NLRB 332,
fn. 1, and General Motors Corporation, etc , 158 NLRB
229, reversed sub nom. V.A. W. v. N L.R B., 381 F.2d
265 (C.A.D.C ). Nor does the fact that the contract
contains a grievance and arbitration procedure justify a
finding of waiver, Eaton, Yale and Towne, Inc., 171
NLRB No. 73, nor the fact that the Union has been
unsuccessful in prohibiting subcontracting through
negotiations. American Oil Company, supra, 652.
However, each of the foregoing factors is entitled to some
weight in determining whether the employer in any given
case has failed to fulfill his statutory obligation to
bargain. In this case, they tend to support a finding that
the Respondent was justified in acting unilaterally.
Further support for such a finding is to be found in the
Respondent's past practice of subcontracting unit work
Such practice may be no defense to subcontracting that
represents a departure from, or is dissimilar to. past
subcontracting. Westinghouse Electric Corp. (Mansfield
Plant), 150 NLRB 1574. In this case, there is testimony
that the past practice consisted in subcontracting work for
which the Respondent did not have the necessary
equipment or the immediacy of its need required that it be
subcontracted. Moreover, it appears that the
subcontracting did not eliminate job classifications, and
unit employees continued to do their share of the same
kind of work. Examples of this situation would be the
skinning of electrodes, repair of vehicles, carpentry work,
repair of buildings, and welding of saggars.
The instant subcontracting differs in that it completely
eliminated unit work and had the effect of abolishing job
classifications described in the contract. Yet, there is some
evidence that Respondent had acted similarly in the past.
In 1961, Respondent had discontinued the operation of its
box shop. In 1963, in the manufacture of the very item
here in question, side blocks, Respondent discontinued
making its own concrete and purchased ready mix
material. As a result, the block crew was reduced from
five to three employees. This action was undertaken
unilaterally with no evidence of a protest.
In short, whatever differences that may exist between
the subcontracting here in question and Respondent's past
practice, they are not such to warrant a finding that they
constituted a significant departure from past practice.
In Westinghouse Electric, supra, the Board indicated
that another factor to be considered before it will find
unilateral subcontracting violative of the Act is whether
the action resulted in a "significant impairment" of job
tenure, employment security, or reasonably anticipated
work opportunities for those in the bargaining unit. What
constitutes significant impairment has been left to the
refining process of case by case decisions, no formula
being given by which one can divine whether in a given
case subcontracting has resulted in the required significant
impairment. It is noted, however that almost without
exception, where the Board has concluded that there was
no significant impairment the subcontracting had not
involved elimination of job classifications. E.g., American
Oil Company, supra, Superior Coach Company, 151
NLRB 189; Fafnir Bearing, supra; Central Soya, 151
NLRB 1691; Westinghouse Electric, 153 NLRB 446.
Where the unilateral action consisted in the elimination
of a job classification, however, the Board has found a
violation even though the change affected only one
employee. In the Weston and Brooker Company, 154
NLRB 747, the job of canteen-air compressor operator
was abolished and the operator was terminated. In Eaton,
Yale and Towne Inc, supra, the employer eliminated the
classification of shipping loader and the earnings of the
employee in that classification were substantially reduced.
In the latter case, the Board did not even mention
significant impairment.
Despite the foregoing, which certainly appear to have
had minimal impact in terms of the number of employees
affected, I do not believe that the Board has adopted a
hard and fast rule that unilateral subcontracting is
violative of the Act whenever it results in the elimination
of job classifications. Rather, that fact must be weighed
along with all other facts in the case. In both Weston and
Brooker and Eaton, Yale and Towne, Inc., the elimination
of job classifications was not as a result of subcontracting,
but a change in methods of operation.
More analogous to this case is General Motors, supra,
where a department was eliminated by reason of the
subcontracting. Nonetheless, the Board found no
significant detriment since the employees were reassigned
to other jobs.
In the instant case, although there is no contention that
any employee was laid off as a result of the
subcontracting, General Counsel submits that at the time
of the contracting out there were numerous laid-off
employees who could have been recalled to perform the
pallet, bolt, or block work Granted that such was the
case, the facts do not warrant a finding that any of the
laid-off employees were not recalled, or that their recall
was delayed, because of the subcontracting. The
fabrication of bolts was not regularly scheduled or
assigned work and was not susceptible to assignment so as
to permit recall of a laid-off employee. As to pallet repair,
although assigned to one man in the past, it had not
provided him with full-time employment e As to the side
blocks, although the work had not required any special
skills, it was this very lack of skill of the employees
assigned to the job in the past that had contributed, at
least in part, to the problem Respondent hoped to correct.
In this circumstance, a finding that the employees still on
layoff as of March 12, none of whom was shown to be
skilled for this type of work, would have been recalled but
for the subcontracting is at best speculative.
Finally, it must be noted that the Respondent has been
willing to meet and discuss the subcontracting and its
effects, apparently within or without the grievance
procedure. On March 14, Respondent explained its
reasons for its actions and gave the Union an opportunity
to present its position. The Union has not requested any
further meetings. I consider this conduct of the
Respondent, although belated. to be entitled to some
weight in an evaluation of its overall conduct. Hartmann
Luggage Company, 145 NLRB 1572
For all the foregoing reasons, it is found that
Respondent has not violated the provisions of Section
8(a)(5) and (1) of the Act, as alleged in the complaint, and
I will therefore recommend that the complaint be
dismissed in its entirety.
'in the view I take of the case, it is unnecessary to analyze the
significance of the fact that pallet repair work had been discontinued more
than 6 months prior to the filing of the charge herem.
UNION CARBIDE CORP. 509
CONCLUSIONS OF LAW the conduct alleged in the complaint.
1. Respondent , Union Carbide Corporation , Carbon
Products Division , Clarksburg Works, is an employer RECOMMENDED ORDER
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Upon the basis of the foregoing findings of fact and
2 Respondent has not engaged in unfair labor practices conclusions of law , it is recommended that the complaint
within the meaning of Section 8(a)(5) or ( 1) of the Act by be dismissed in its entirety.