Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1965

150 N.L.R.B. 1574 (N.L.R.B. 1965)

1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become and remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a) (3) of the Act.
HECK'S, INC. d/b/a HECK'S DISCOUNT STORE,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 2023
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200,
if they have any questions concerning this notice or compliance with its provisions.
Westinghouse Electric Corporation (Mansfield Plant ) and Local
711, International Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case No. 8-CA-3123. February 5, 1965
DECISION AND ORDER
On June 2, 1964, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Exceptions to certain of the findings, conclusions,
and recommendations of the Trial Examiner, with supporting briefs,
were filed by the Respondent, the General Counsel, and the Charging
Party. The Charging Party, in addition, filed a brief in reply to the
exceptions and brief of the Respondent.
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 and briefs, and the entire record
in this case, and adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
Westinghouse Electric Corporation, the Respondent herein, is en-
gaged in the manufacture of major appliances (laundromats, dryers,
built-in ovens, etc.) and portable appliances (hair dryers, griddles,
toasters, electric irons, etc.) at its Mansfield Plant. The Union is-the
statutory bargaining representative for some 3,000 hourly rated
employees at this facility. The Mansfield Plant is organized into
various departments including a maintenance department, a tool-and-
die department, a portable appliance department, and a major
appliance department.
Since the early 1940's contracting out has been a continuing phase
of Respondent's method of operation at Mansfield. Although the
150 NLRB No. 136.
WESTINGHOUSE ELECTRIC CORP . (MANSFIELD PLANT) 1575
Union sought restrictions on the established subcontracting practice
during general contract negotiations in 1958,1 1960, and 1963, on each
occasion its demands were dropped in the course of bargaining and
ensuing agreements were silent on the issue.
Respondent's subcontracting in the period covered by this proceed-
ing included the following : (1) about 400 maintenance • subcontracts
of which about 350 could have been performed by Respondent's main-
tenance employees; (2) about 800 contracts for tools and dies, most
of which involved work within the capacities of employees in Re-
spondent's tool-and-die department; (3) about 1,500 contracts
awarded by the portable appliance division for the purchase of parts,
of which 12 involved components previously manufactured at Mans-
field; (4) about 5,000 contracts let by the major appliance department
for purchase of components many of which could have been manu-
factured at the Mansfield Plant. Before contracting 'with outsiders
for maintenance services, parts, or dies, Respondent considers the
economic feasibility of doing the work with unit employees. Re-
spondent does not notify, consult with, or advise the Union each
time it awards work to an outside contractor.
The issue presented is whether, in the circumstances, Respondent
violated its statutory bargaining obligation by failing to notify and
consult with the Union before contracting work to outside employers
that could be performed by its own employees.
The Trial Examiner, relying upon our decision in Fibreboard
Paper Products Corporation,2 concluded that by failing to consult
and bargain with the Union before "letting contracts giving to out-
side contractors and their employees work of a nature which could
have been performed by equipment and manpower within the bar-
gaining unit, the Company engaged in unfair labor practices within
the meaning of Section 8(a) (5) and (1) of the Act." Under the
circumstances here present, we disagree with the Trial Examiner's
conclusion and find merit in Respondent's contention that it was not
obligated to notify and bargain with the Union before letting each
contract involving unit work .3
The contracting out of work done, or which may be done, by
employees in a bargaining unit is a subject of mandatory bargaining.4
1 The 1958 negotiations were, pursuant to a "reopener " clause in the then existing
agreement, executed in 1956
2138 NLRB 550, enfd. sub now. 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.
3 Respondent excepts to the Trial Examiner 's conclusion that the Union did not waive
its bargaining interest in subcontracting during general contract negotiations. In the
view we take of the case , it is unnecessary for us to reach the issue of "waiver ," and we
do not pass upon the Trial Examiner 's reasoning and conclusion in this regard.
d See, e g., Fsbreboard Paper Products Corpot ation, Supra; Town d Country Manu-
facturing Company, Inc., 136 NLRB 1022.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have elsewhere pointed out, however, that our condemnation in
Fibreboard and like cases of the unilateral subcontracting of unit
Work was not intended as laying down a hard and fast new rule to be
mechanically applied regardless of the situation involved.5 Thus, it
is wrong to assume that, in the absence of an existing contractual
waiver, it is a per se unfair labor practice in all situations for an
employer to let out unit work without consulting the unit bargaining
representative. As the Supreme Court has indicated in a broader
context, even where a subject of mandatory bargaining is involved,
there may be "circumstances which the Board could or should accept
as excusing or justifying unilateral action." 6
It is also pertinent to the issue before us to observe that an em-
ployer's duty to give a union prior notice and an opportunity to bar-
gain normally arises where the employer proposes to take action
which will effect some change in existing employment terms or condi-
tions within the range of mandatory bargaining. In the Fibreboard
line of cases, where the Board has found unilateral contracting out of
unit work to be violative of Section 8(a) (5) and (1), it has invari-
ably appeared that the contracting out involved a departure from
previously established operating practices, effected a change in condi-
tions of employment, or resulted in a significant impairment of job
tenure, employment security, or reasonably anticipated work oppor-
tunities for those in the bargaining unit.?
Here, however, there was no departure from the norm in the letting
out of the thousands of contracts to which the complaint is addressed.
The making of such contracts was but a recurrent event in a familiar
pattern comporting with the Respondent's usual method of conduct-
ing its manufacturing operations at the Mansfield Plant. It does not
appear that the subcontracting engaged in during the period in ques-
tion materially varied in kind or degree from that which had been
customary in the past. Nor has it been shown that the subcontracting
engaged in had any significant impact on unit employees' job inter-
ests. On the contrary, in the words of the Trial Examiner, "The
record in the instant case does not even establish slow erosion, let
alone elimination of, jobs arising from the contracting out of work." 8
We do not mean to suggest that, because subcontracting in accord-
ance with an established practice may stand on a different footing
from that of subcontracting in other contexts, an employer is any less
5 Shell Oil Company , 149 NLRB 305
8 N.L.R B v Benne Katz, etc., d / b/a Williamsburg Steel Products Co, 369 U S. 736, 748.
7 Compare , Shell Oil Company, 149 NLRB 283 , and Shell Chemical Company, 149
NLRB 298, where the complaints were dismissed.
8 Although there is some indication that a few employees ( about nine ) In the main-
tenance and tool department were occupying production jobs to which they had earlier
been downgraded for lack of work, this downgrading is not identified as resulting-from
the letting of any particular subcontract or series of subcontracts during the period
covered by the complaint.
WESTINGHOUSE ELECTRIC CORP . ( MANSFIELD PLANT) 1577
under an obligation to bargain with the union on request at an appro-
priate time with respect to such restrictions or other changes in cur-
rent subcontracting practices as the union may wish - to negotiate.
But it is to be noted that no claim is made in this case that the
Respondent has ever refused to honor a request for such bargaining;
the sole issue before us is whether the Respondent transgressed its
statutory obligation by not consulting with the Union about each of
its thousands of annual subcontracting decisions which involved unit
work. As one factor in the assessment of that specific issue, we take
into account that the Union was in a position to, and in fact did, seek
to negotiate adjustments in plant subcontracting policies . The rele-
vant bargaining history thus shows, as already indicated , that the
Union on three separate occasions sought contract language limiting
the established subcontracting practice . Although discussion failed
to produce agreement on such a provision , the Union did win agree-
ment for improved benefits in the area of employment security. The
fact that the Union does have an opportunity to bargain generally on
request about Respondent 's recurrent subcontracting practices, pro-
vides in our view a contributing, though not a controlling, reason for
not imposing upon the Respondent the duty to bargain separately, at
the decision -making level, about each of the thousands of individual'
subcontracts covering work that could be performed by its own
employees.
In sum-bearing in mind particularly that the recurrent contract-
ing out of work here in question was motivated solely by economic
considerations ; that. it comported with the traditional methods 'by'
which the Respondent conducted its business operations ; that it did
not during the period here in question vary significantly in kind or
degree from what had been customary under past established prac-
tice; that it had no demonstrable adverse impact on employees in the
unit; and that the Union had the opportunity to bargain about
changes in existing subcontracting practices at general negotiating
meetings-for all these reasons cumulatvely , we conclude that
Respondent did not violate its statutory bargaining obligation by
failing to invite union participation in individual subcontracting
decisions.
Finding, as we do, that Respondent did not violate 8(a) (5) and
(1) as alleged , we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER JENKINS , concurring :
I concur in what my colleagues have said above. However, in sup-
port of the conclusion that Fibreboard did not lay down a hard and
fast rule of mechanical application making subcontracting a per se
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation, absent consultation with the union or a contractual waiver
of such consultation, I would also rely on the statement of the
Supreme Court in East Bay Union of Machinists, Local 1304, United
Steelworkers of America, AFL-CIO (Fibreboard Paper Products
Corporation) v. N.L.B.B. (affil. 379 U.S. 203, December 14, 1964) :
We are thus not expanding the scope of mandatory bargaining
to hold, as we do now, that the type of "contracting out" involved
in this case-the replacement of employees in the existing bar-
gaining unit with those of an independent contractor to do the
same work under similar conditions of employment-is a statu-
tory subject of collective bargaining under § 8 (d). Our decision
need not and does not encompass other forms of "contracting
out" or "subcontracting" which arise daily in our complex
economy....
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel at Mansfield , Ohio, on
January 6 and 7 , 1964, pursuant to a charge filed April 8, 1963, and a complaint issued
August 28 , 1963, presents questions concerning the duty, if any, resting on the
Respondent to bargain with the Union representing its employees over whether particu-
lar maintenance or production work should be performed by employees within the
bargaining unit or should be contracted to outsiders . Upon the entire record,' and
after due consideration of the helpful briefs filed by all parties hereto, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent , a Pennsylvania corporation , herein sometimes called the Company,
operates a number of manufacturing plants, including one at Mansfield , where it pro-
duces various electrical equipment and from which it annually ships to points outside
Ohio products valued in excess of $ 50,000 . The production and maintenance employ-
ees at Mansfield are , and for some years have been, represented for purposes of col-
lective bargaining by the Charging Party and its parent International , herein inter-
changeably referred to as the Union. The practice of the parties has been for the
International and Respondent to negotiate contracts on a national basis, which con-
tracts are then supplemented by local agreements executed by representatives of the
Union and of local management. The pleadings establish , and I find, that Respondent
is engaged in commerce within the meaning of the Act, and that the Union and its
parent International are labor organizations within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
At its Mansfield Plant Respondent manufactures major appliances ( laundromats,
dryers, built-in ovens, etc .) and portable appliances (hair dryers, griddles , toasters,
electric irons, etc .). Slightly under 3,000 hourly paid employees are on the Mansfield
plant payroll , including about 100 in the maintenance department and about 75 in
the toolroom . Although the maintenance department employees include persons
skilled in various building crafts (e.g., plumbers , electricians , carpenters , etc.), from
time to time Respondent has had maintenance work performed not by its own employ-
ees but by employees of construction contractors. Similarly, with respect to the
myriad parts which make up the finished appliances assembled at the plant and with
respect to the tools and dies needed to make these parts, although Respondent employs
in its production department and in its toolroom persons capable of manufacturing the
1 The record Is hereby corrected to show that General Counsel 's Exhibits Nos. 2 through
10 were admitted into evidence at p. 15, 1. 19 , of the transcript of testimony.
WESTINGHOUSE ELECTRIC CORP . ( MANSFIELD PLANT) 1579
particular components needed or of making the tools and dies which are used to make
the parts, Respondent from time to time purchases these parts from outside sources or
arranges with an outside source to make the dies. Before contracting with outsiders
for these maintenance services, parts, or dies, Respondent considers the possibility and
economic advisability of doing the work with its own employees. In reaching its deci-
sion to retain or contract out the work, however, Respondent does not consult with,
advise, or notify the Union. The issues in this case are whether the statute imposes
on Respondent a duty to bargain with the Union over whether or not the work in ques-
tion should be performed by employees within the bargaining unit, and, if so, whether
the Union or its parent International waived the right to bargain over whether such
work should be performed by unit employees or contracted out. In the ensuing dis-
cussion we turn first to a consideration of the contracting practices at the plant, and
then to the bargaining negotiations bearing on this issue.
B. Contracting practices at the Mansfield Plant
1. Maintenance department
Respondent prepared, pursuant to subpena, and General Counsel introduced in evi-
dence (General Counsel's Exhibit No. 6) a list of contracts let or items purchased by
the maintenance department for the year commencing October 1, 1962.2 The list,
which is exhaustive, including "contracts" for items costing as little as $2, embraces
over 400 contracts, and may be divided into 2 main categories: contracts for work of
a type which could be performed by regular employees of the Mansfield Plant, and
contracts for work or materials which could not be performed or supplied by regular
Mansfield Plant employees. Included in the former group were contracts for painting,
minor structural modifications, and making the plumbing and electrical connections
incidental to the installation of machinery. Work of such nature has on occasion been
performed by the Company's Mansfield employees, and, before letting contracts for
such work, the Company estimates the cost of doing the job with its own employees.
Even if the cost of using a contractor is higher, however, the Company may still con-
tract out the work, if it does not have the time to do the work with its own employees.
On other occasions, when the estimate of the outside contractor is lower than the
Company's estimate for doing the work with its own employees, the Company may
nevertheless recheck the availability of its own employees to do the work, and may
retain the work itself, albeit at a higher cost than if the work had been contracted. In
these deliberations, obtaining of estimates, and making ultimate decisions to contract
out or to retain the work, the Company does not notify, consult with, or invite com-
ments from the Union which is the statutory representative of the maintenance employ-
ees. The Company in considering its available manpower for this work does not
include in its considerations members of the maintenance department who were work-
ing in lower paying production jobs into which they had "bumped," displacing other
production workers, because of a lack of maintenance work. Several "maintenance
department" employees were employed in production work under those circumstances
during the period within the purview of this proceeding (see footnote 2, supra).
Thus far we have been speaking primarily of the maintenance contracts which could
have been performed by company employees. Of the over 400 contracts let by the
maintenance department, a considerable number embraced purchases of items which
are not, and could not be, made at the Mansfield Plant. For example, the list includes
10 separate contracts for the purchase of batteries, an item which the Company does
not have facilities to manufacture at Mansfield. Another 20 to 25 contracts called for
the purchase of lumber, several for the purchase of carpeting, and many others for the
purchase of items which are commonly stocked by the supplier and have never been
made by the Company.
2. Tool-and-die room
An exhibit similar to that introduced for the contracts let by the maintenance
department shows that for the year commencing October 1, 1962, the Company let
approximately 85 contracts for "blanket orders" for tools and dies, and close to 700
contracts (ranging in value from $12 to $20,000) for specific tools or dies. With few,
if any, exceptions, any of these tools or dies could have been made in the Company's
toolroom, which employed approximately 75 men throughout the year in question.
In addition, during that time, six former toolroom employees were working in the
production department, having been "bumped" from their toolroom jobs.
2 As the charge was filed April 8, 1963, and served April 9, the period covered by the
exhibit substantially coincides with the period in which violations of the Act are cognizable
in this proceeding.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In determining whether to let contracts for tools and dies or to make them in its own
toolroom , the Company does not consult with or advise the local . The decision is
made by the Company upon considering its available equipment and manpower. At
one time the toolroom at Mansfield employed 100 more men than are now employed
there , but the loss of men appears to be attributable to the transfer of certain major
production items out of Mansfield (e.g., refrigerators , dishwashers, and water heaters,
formerly made in Mansfield are now made in Columbus ) rather than to an increase in
the percentage of toolroom work contracted out. According to the manager of manu-
facturing planning, when the Mansfield Plant was laying people off, 2 or 3 years be-
fore the hearing , it contracted out very little toolwork . Although the actual size of
the toolroom has been diminished from the period of its peak activity (some of its
former space is now occupied by "production"), the present toolroom space and
equipment is adequate to handle more work than is now done there.
3. Portable appliance department
The portable appliance division of the Mansfield Plant is now, essentially, an
assembly operation, and the component parts of the various appliances are manu-
factured elsewhere . Approximately 1,500 contracts were let by this department dur-
ing the year commencing October 1 , 1962, but of these only 12 were for items that had
ever been made at Mansfield , and none of them had been made there during the year
in question.
4. Major appliance department
Approximately 5,000 contracts were let by the major appliance department during
the year commencing October 1 , 1962 . Only one of these, a contract for a small,
knurled, screw-like part , was for an item which had been made within the plant during
the year in question . The remainder were either reorders of items previously pur-
chased by the Company , or items not theretofore used; e.g., a new bracket . Some of
the items (notably castings , paper, and plastics ) could not have been made at the
Mansfield Plant, but a large number of items that were purchased from outside sources
could have been produced by the Company 's Mansfield employees . The determina-
tion whether to make or buy these items (some of which may be for the portable
appliance department discussed above ) is made by management representatives dur-
ing meetings held about twice a week. At these meetings the item in question is dis-
cussed , and, based on various factors (e.g., cost of tooling, availability of men and
machinery ), a decision will be made either to make the item or to "contract it out";
i.e., buy it . In general the Company prefers to make its own parts if it can do so
economically . On occasion it has tried to make a part, found that it lacked the
capacity to do so properly , and contracted it out.
C. Collective-bargaining practices and negotiations dealing with the
problem of contracting out
1. Practices at the Mansfield Plant
During the early and mid-1940 's, the Mansfield Plant management kept the Union
advised of any work which was to be contracted out. On occasion the Union was
instrumental in keeping work within the plant which management originally intended
to contract out. On other occasions , local management explained to the Union why
work was being contracted out. But this practice diminished in the later 1940's and
1950 's, until by 1961 the Company was no longer giving the Union "any fore warning
or any fore explanation" ( to quote Hawkins, president of the local).
In November 1961 the Union addressed certain written requests to local manage-
ment concerning the tool division , one of which was that management inform the
Union "of jobs and bids that are to be made or repaired on the outside before they
leave the plant and the reasons for shipping out." The Company ignored the request.
In August 1962 the local again wrote local management specifically protesting against
any future contracting out of work without prior negotiations with the Union . Again_
the Company ignored the matter. In November 1962 the Union raised the same
issue in a meeting with local management and requested further meetings devoted to
that subject . The company representatives made no comment , then or thereafter, on
the subject . The local raised the matter again in February 1963 and again requested
meetings to discuss the contracting situation . As before , the Company made no
response . Again in April 1963 the Union asked local management for a list of work
contracted out from the tool -and-die room and a list of people to whom the contracts
were let. The Company took the request under advisement , and later denied it.
2. Discussions at the national level of the contracting problem
The practice of the International and the national management of the Company is
to negotiate a collective -bargaining agreement on a national scale , with provision for
WESTINGHOUSE ELECTRIC CORP. (MANSFIELD PLANT) 1581
local supplements to be executed after local negotiations covering local conditions.
Each of the three most recent national contracts executed in 1956, 1960, and 1963
contained a provision reciting that each party "voluntarily and unqualifiedly waives
the right, and each agrees that the other shall not be obligated, to bargain collectively
. with respect to any subjects or matters not specifically referred to or covered in
this agreement which were discussed during the negotiation of this agreement ...."
a. Negotiations in 1958
At the opening of negotiations in August 1958, pursuant to a "reopener" clause in
the then existing contract, the International included among its general proposals a
suggestion that the contract provide that no work may be farmed out until the full
capacity of the plant has been utilized and all employees on layoff have been recalled.
The International also proposed at that time that the' manner in which subcontracting
may be carried on should be spelled out in the agreement. Specific contract language
on this subject was first presented at the meeting of September 10, 1958. At this meet-
ing the Union proposed the following clause : "No manufacturing, maintenance, or
service operations shall be given to an outside contractor so long as qualified employ-
ees, and the necessary equipment, are available to perform the operations."
This clause was discussed at the meeting of September 10. The Company raised a
question as to emergency situations, and the Union responded that judgment must be
used, and an emergency clause could be added. Union Counsel Sigal suggested that
the Company might suggest language if it felt the proposal was not sufficiently flexible.
Clark Frame, the Company's director of labor relations, expressed doubt that an
acceptable clause could be written which would provide the flexibility the Company
needed. Various examples of existing subcontracting were discussed, with the Union
complaining that favoritism, and improper relations between company supervisors and
outside contractors, played a role in decisions to contract work out. The Mansfield
Plant was among the examples which the Union discussed. The Company explained
some of its reasons for contracting work out, denied any improprieties, and expressed
readiness to look into such allegations.
On September 16, 1958, the parties again discussed the question of contracting work
out, with particular reference to the Metuchen, New Jersey, plant where the cafeteria
was being cleaned by employees of a contractor. In the course of this discussion,
Company Representative Frame told the Union that the Company had no counter-
proposal and could make none as "subcontracting problems must be worked out
generally locally," and the Company would not "write a paragraph that would shackle
our local plant management." The Company, although stating that the problems of
contracting out should be discussed locally and resolved at the local level, rejected the
Union's proposal, then put forth, that the parties "put on paper that subcontracting is
a matter which is properly referred to local bargaining."
On October 1 and 30, 1958, the parties again discussed the problem. The discussion
on the first of those dates was confined to situations at specific plants where the prob-
lem had arisen . At the October 30 meeting, when the Union asked the Company to
state its "policy" on contracting out, Frame replied that the Company had no policy.
The Union then asked the Company to state its practice in writing, to which Frame
responded that the practice was a flexible one, with each case being decided on its own
merits. Pressed to state the considerations, Frame named a few, such as need to sub-
contract to get the job, cost, and patent questions. He told the Union that Westing-
house itself did contract work for other manufacturers, and that general adoption of
the limitations the Union proposed would put Westinghouse out of business in some of
its operations. The Union replied that it was concerned not with eliminating contract-
ing, but in getting a written statement of policies and procedures. The Company
replied that to put any clause in the contract on that subject would destroy manage-
ment's flexibility.
b. Negotiations in 1960
The 1958 negotiations, which were on the general subject of "employment security,"
closed without any agreement being reached. In 1960 the parties again negotiated on
a national basis, this time for an entire contract. The contracting problem was raised
again in the 1960 negotiations. At the first meeting, June 30, 1960, the Union pro-
posed "that there be no subcontracting out of work normally done in the plant until
the plant capacity has been utilized and employees on layoff have been recalled." This
proposal, read at the June 30 session, was discussed at the next session on August 5,
1960, when the Union mentioned a few of the contracted jobs which troubled it. At
that meeting the parties discussed the cost of idle machinery in connection with the
cost of contracting out, and also discussed whether'work done by one Westinghouse
plant for another should be considered "contracted" work. At subsequent meetings
in 1960 the parties discussed specific cases in which work had been contracted out. At
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one point union counsel expressly stated that under its proposal "if all employees are
working, then you [the Company] can go to any outside contractor." The Company
took the position that it could not agree to the Union's demand for a general national
commitment which would place a limitation on contracting out, and that specific prob-
lems should be talked about locally. The 1960 negotiations culminated in a contract
which was silent on the subject of contracting work out, but which contained the broad
waiver clause quoted above.
c. Negotiations in 1963
In 1963, the parties met to open negotiations for a new national contract on Au-
gust 7, 4 months after the filing of the charge initiating these proceedings. At the
August 7 meeting the Union again proposed that no work "be farmed out that is nor-
mally done in the plant until plant capacity has been utilized and employees on layoff
have been recalled." The Union stated that it had a number of contracts with other
employers which contained "such limits upon contracting out." On October 9, 1963,
6 weeks after the complaint issued in this case, the Union proposed a clause providing
that "Local Managements shall inform their respective Local Union of Management's
intention to subcontract work which is part of the bargaining unit work, and shall, at
the request of the Local Unions, discuss the advisability as well as the effect of the
subcontracting on employment conditions." There is nothing in the record to indicate
that the proposal just quoted was the subject of any discussion during the bargaining;
the Union did not include it in the further counterproposals it submitted after Octo-
ber 9. The 1963 negotiations culminated in a contract which was silent on the subject
of contracting out and contained the waiver clause found in earlier contracts.
D. Analysis and conclusion
1. The underlying duty to bargain
Analysis perforce begins with the recognition that under existing law, binding upon
the Trial Examiner, but soon to be authoritatively settled, an employer is under statu-
tory duty not to contract out the woik of an entire department without first notifying
the statutory bargaining representative of its intention to subcontract and giving that
representative the opportunity to bargain with the employer over the decision to sub-
contract. Fibreboard Paper Products Corporation, 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.), cert. granted 375 U.S. 963, 974. The
reasoning of the Board in Fibreboard and similar cases would seem to apply to cases
in which only part of the work of the unit, and not all, is contracted out; the union's
role as bargaining representative requires that it be dealt with where the jobs in the
unit are subjected to slow erosion as well as complete and sudden elimination. See
Order of Railroad Telegraphers v. C. & N. W. Ry. Co., 362 U.S. 330, 335-336; Inter-
national Union, U.A.W., Local 391 v. Webster Electric Co., 299 F. 2d 195, 197 (C.A.
7); Timken Roller Bearing Co., 70 NLRB 500, 518, set aside on other grounds 161
F. 2d 949 (C.A. 6), cited with approval in Local 24, Teamsters V. Oliver, 358 U.S.
283, 294-295. And see the testimony of Clark Frame, the Company's director of
labor relations, that in the Company's view it could lawfully contract out any and all
work of the plant without any prior notice to, or bargaining with, the Union.3
The record in the instant case does not establish even slow erosion, let alone elimi-
nation, of jobs arising out of the contracting out of work. The most that can be found
in that respect in this record is that some employees had been "bumped" from mainte-
nance or toolroom work into less desirable "production" jobs, and would have been
recalled to their better jobs had more steady work been available in the preferable
departments. But the fact that in a given period, the farming out of work without
bargaining with the Union did not result in layoffs does not destroy the employees'
interest in bargaining through their representative over whether such farming out
should occur. Unquestionably, their concern is more immediate if unemployment,
demotion, or loss of earnings result immediately. But such consequences may result
from the last in a series of such contracts, as the culmination of minor inroads on the
work of the unit which, until then, were absorbed without immediate impact on the
employees. Farsighted bargaining may well require the Union to suggest alternatives
to laying the first straw on the camel's back; it may well be too late to seek to negotiate
only when the last straw is being placed. Moreover, if the contracting out does not
threaten the economic health of the men in the unit, the "bargaining" required need
3 Frame, of course, was testifying as to the scope of the "waiver," discussed infra,
and he was careful to note that if any substantial reduction in employment were to result
from contracting work out, the Company "undoubtedly would discuss it [with the Union]
beforehand," but he also testified that such discussion "would be a matter of grace" on
the Company's part and not an obligation.
WESTINGHOUSE ELECTRIC CORP. (MANSFIELD PLANT) 1583
not be protracted; the Union, whose good faith must be presumed and is required by
law, has no purpose to frustrate company operations which do not bode, ill for the
members of the bargaining unit. It should not be overlooked , moreover, that the
Union exists to benefit the men in the unit as well as to protect them from harm.
Thus, the Union might well urge that the work be kept in the unit to be performed dur-
ing additional overtime rather than farmed out. To put the same point obversely, a
union has a legitimate bargaining interest in obtaining more work for the men in the
unit, and an employer who has such work but contracts it out is adversely affecting
the employees in the unit by depriving them of the opportunity for additional overtime.
This is not to say of course, that the employer must obtain the Union's consent; on the
contrary the decision remains with the employer, just as-for example-the decision
to grant a wage increase or make other changes in employment remains his , but it is a
decision which must be made after good-faith bargaining. Furthermore, and quite
apart from the considerations thus far advanced, the record in this case discloses that
some employees in the unit were in inferior jobs because of lack of work in their
departments, so that any 'contracting out in those departments necessarily adversely
affected their chances of reassignment to their regular jobs, and hence was of direct
concern to their bargaining agent.
As the above discussion indicates, it is my view that the obligation to bargain over
contracting out work, as defined in the Fibreboard case, is not limited to contracts
which wipe out the bargaining unit, but extends also to contracts which diminish work
opportunities within the bargaining unit. If this view is sound, the employer 's obliga-
tion and the employees' rights are not lessened by the fact that over a period of years
such contracting has occurred without protest from the Union and without notice or
bargaining. An employer gains no prescriptive right to violate the statute merely
because past violations have gone unchallenged . Each letting of a contract is a new
act affecting work opportunities within the bargaining unit. The Union's failure to
protest earlier may stem from any one or more of several causes; e.g ., satisfaction
with existing conditions and corresponding lack of concern over loss of work oppor-
tunities , desire to concentrate on other aspects of bargaining , or even sheer inertia,
incompetence , or unawareness of its rights. Failure to exercise a statutory right does,
not extinguish it. In the instant case, moreover , the Union did not quietly acquiesce
to the Company's contracting out work without notice and bargaining. On the con-
trary the Union at both the local and national levels sought to alter the Company's
contracting practices, thereby paving the way for the Company's argument here that
the matter was waived pursuant to the broad waiver clause, quoted above. The pos-
sible applicability of this clause is discussed below; suffice it here to note that the
Union's manifest concern with this general subject puts the quietus on any theory of
estoppel by acquiescence.
Closely related, and equally untenable, is the argument that, the "conditions of
employment" included the power of the Company to let contracts which had the effect
of diminishing work opportunities in the unit without notice to or bargaining with the
Union. This argument, a variation on the "acquiescence" and "waiver" themes, rests
on the notion that because contracting out has been frequent, the right of the employer
to do so without bargaining is itself a condition of employment. It has peculiarly
little force on this record because of the undisputed evidence that during the 1940's
the Company's practice was to advise the Union of work which was to be contracted
out, a practice which changed gradually through the 1950's into the present contrary
policy. But even absent that background, the suggestion that an employer's power
to act unilaterally can be a "condition of employment" is contrary to settled law. As
far back as N.L.R.B. v. J. H. Allison & Company, 165 F. 2d 766, 770 (C.A. 6), cert.
denied 335 U.S. 814, the Board and the courts rejected an employer's claim that he
could grant unilateral wage increases because he had been doing so for many years
(including years when he had collective -bargaining agreements silent on the subject of
merit increases). The argument that the employer has acted without notice to the
union in the past and therefore is free to continue doing so must rest on the theory that
contracting out is not really a matter on which the statute requires bargaining. Once
it is accepted that the statute does so require , the fact that the employer has been failing
to do so in the past establishes merely that his violations have gone unchallenged, not
that the employees' rights have atrophied or that what was unlawful action has become
transmuted by time (how much time?) into a lawful "condition of employment." And,
in any event, whatever conclusions may be reached on other records,4 the record in this
case discloses that during the late 1950's, and even as, late as 1961, the Company
occasionally apprised the Union of the Company's intention to contract out work so
4 See the Decisions of Trial Examiner Mailer in American Oil Co , Case No. 13-CA-5611
[151 NLRB No 45], and of Trial Examiner Brown in American Oil Co, Case No.
17-CA-2264 [152 NLRB No. 7].
775-692-65-vol. 150-101
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the practice here complained of never reached the level of an accepted "condition
of employment."
2. The contracts as to which notice and opportunity to bargain were required
The Company argues that as a practical matter it must be free to farm work out
without notice to or bargaining with the Union, pointing to the thousands of such con-
tracts let each year. To require notice and bargaining as to each, so the argument
runs, would drown the Company in a sea of negotiations; to determine in cases of this
nature which matters require such notice and which do not would, it is said, plunge
the Board and the courts into a hopeless morass. Although such jeremiads have a
faintly familiar ring (see Inland Steel Company v. N.L.R.B., 170 F. 2d 247, 249
(C.A. 7), cert. denied 336 U.S. 960; Richfield Oil Corporation v. N.L.R.B., 231 F. 2d
717, 722-723 (C.A.D.C.), cert. denied 351 U.S. 909), and although the large size of
the Company cannot operate to lessen its bargaining obligation or to impair employee
rights (see J. I. Case Company v. N.L.R.B., 253 F. 2d 149, 156 (C.A. 7) ), the exten-
sive exhibits introduced in this case tend to document the contention and require
consideration.
Turning first to the maintenance contracts, it is immediately apparent that the
exhibit prepared by the Company and introduced by General Counsel grossly exag-
gerates the problem. Manifestly, contracts for the purchase and installation of equip-
ment which the Company cannot produce at Mansfield are not within the scope of
the bargaining obligation here considered. That obligation extends, so far as the
maintenance unit is concerned, to contracts for work of a type which has, from time
to time, been performed by regular Mansfield employees, or which could be performed
by them, using skills and materials readily available. Emmons, the manager of the
works engineering department, testified that the Company estimates the cost of doing
maintenance work itself before contracting it out. The statutory obligation to notify
the bargaining representative of the intention to farm work out would extend to con-
tracts which concern work as to which the Company made such an estimate of its own
costs. It would not extend to contracts which the Company was incapable of perform-
ing with men and equipment at hand. Further, I note that a substantial number of
the contracts included by the Company in amassing the material designed to over-
whelm the Board with the overwhelming burden here involved were contracts in such
nonoverwhelming amounts as $2, $5, $15, $25,, etc.; of the "priced" contracts, about
40 out of about 250 were for less than $100. Good-faith bargaining might easily result
in agreement as to what was de minimis in this matter, and even absent agreement
the maxim would be reasonably applied. In short, the Company's statutory bargaining
obligation with respect to the maintenance contracts extends to those matters as to
which the Company already gives some consideration to doing the work itself. All
that is required is that the Company, in the event it reaches a preliminary determina-
tion to contract the work out, apprise the Union of this intention, and-if the Union
so desires-engage in good-faith bargaining on the subject; i.e., give the Union the
Company's reasons for the determination, hear in good faith the Union's reasons why
a contrary policy should prevail, and then reach a decision (not necessarily "agree-
ment") on the matter.5
With respect to the production departments (both portable and major appliances)
the Company again exaggerates the extent of the bargaining obligation imposed- by
the Act as here construed. In the first place, many of the contracts let by those depart-
ments involved items which could not be produced at Mansfield, notably castings,
plastics, and paper items, and as to them no notice to, or bargaining with, the Union '
would be required. Further, once a contract has been let, after notice and opportunity
to bargain, a reorder of the same would not be an action requiring a new prior notice
to the Union. If the Union desires to bargain over whether such an item, now pur-
chased by the Company, should be produced within the unit, the initiative for such a
change should appropriately come from the Union; to that limited extent the concept
of "existing conditions of employment" has validity in this area. This leaves for
e This is substantially the rule as to "bargainability" which I believe appropriate in
Shell Oil Co., Case No. 15-CA-2143, pending on exceptions before the Board. Counsel
for the Company in this case states (brief, p 33) that this rule would give the Union
in this case what it sought and gave up in the 1958 and 1960 negotiations. This state-
ment is a surprising inaccuracy in the otherwise able brief of astute counsel. What the
Union sought and gave up in 11960 was a prohibition or limitation on the power to con-
tract work out. The "rule" recommended in Shell and in this case would impose no
such prohibition or limitation, but simply a requirement of bargaining. See N.L.R.B.
v. Crompton-Highland Mills, Inc., 337 US 217, 224-225; N L R.B. v. Bradley Wash-
fountain Co., 192 F. 2d 144, X150-151 (C.A. 7) ; N.L.R.B. V. Town & Country Mfg. Co.,
Inc., at al., 316 F. 2d 846 (C.A. 5).
WESTINGHOUSE ELECTRIC CORP. (MANSFIELD PLANT) 1585
notice and bargaining only those contracts which take away from the bargaining unit
work which it has been performing (e.g., the small, knurled, screw-like part which was
contracted out within the year preceding the hearing but previously had,been made in
the plant), and contracts for parts not theretofore used by the Company. Even assum-
ing that a considerable number of contracts fall into this last category, the bargaining
obligation on the Company is not excessive. In each case the Company now makes a
determination whether to make or buy the item; this determination is made at "make
or buy" meetings held on an average of twice a week. The Company's bargaining
obligation in this matter could be discharged by permitting a union representative to
participate in these meetings, or by notifying the Union at the conclusion of the meet-
ing of any decision to contract work out, and thereafter on request apprising the Union
of the reasons therefor and treating in good faith with such objections or counter-
reasons as the Union may advance with respect thereto. The fact that the Company
may have a large number of "make or buy" decisions, necessitating approximately 100
"make or buy" meetings during the year, neither creates not cancels the statutory
obligation to bargain with the Union on matter directly affecting the employment
opportunities of men in the unit. If, for example, the Company wanted to give
merit increases to half its Mansfield employees, it would have nearly 1,500 such
matters on which it would be required to give the Union notice and opportunity
for bargaining, whereas a smaller employer might have a mere handful, but the
bargaining obligation resting on the two differs only in degree, not in kind.
Finally, with respect to the toolroom, the Company lets annually a large number
of contracts for work it could do in its toolroom if it had available manpower and
space. The considerations which lead the Company to decide what tools or dies
to make and what to buy will vary from item to item, with such matters as size
of the order, immediate availability of equipment, and the like influencing the judg-
ment. According to the testimony of Union President Hawkins, however, the
Company at one time had the practice of advising the Union of contemplated con-
tracts. Hawkins stated:
On some occasions, it would be the tool room office with proper personnel
from the Company there, and we were explained why it had to be. We were
given checks and graphs of the full load showing how they load the tool room
with every available hour, the tool and die men were loaded with every
available hour, and the reasons were explained to us why this work was being
kept to outside sources.
Hawkins similarly testified with respect to maintenance contracts:
In fact, the works manager of the Mansfield plant rather prided himself in calling
the Union officials in and giving them information, graphs, and charts, before he
had even distributed or had it brought up in a supervisors' meetings, at super-
visors' level, and before he even give it to them, we were notified first.
The fact that the Company observed these practices with respect to both tool and
die contracts and maintenance contracts during the 1940's and 1950's substantially
disposes of the contention here that the obligation is either too indefinite or too onerous
to be imposed on the Company now. As in the case of the "make or buy" meetings
for production parts, the Company must make a decision as to which dies to make and
which to buy. Insofar as it decides to "buy" it lessens employment opportunities
within the unit and prevents the recall of laid-off tool-and-die men. It is not too much
to require that it apprise the bargaining representative of these men of the reasons
underlying its decision to buy, and hear in good faith such counterreasons as the repre-
sentative may advance for a contrary course.
3. The alleged "waiver"
As noted- above, under the Company's national contract with the Union, "each
voluntarily and unqualifiedly waives the right, and each agrees that the other shall not
be obligated, to bargain collectively ... with respect to any subjects or matters not
specifically referred to or covered in [the contract] which were discussed during the
negotiation of [the contract]...." The Company contends that because the Union
raised the subject of contracting out during negotiations, and the matter is not covered
in the contract, the "waiver" clause eliminates the bargaining obligation. I reject the
contention for the following reasons:
A proper understanding of the bargaining relation and the scope of the waiver must
commence with a statement of the legal rights of the parties at the outset of the bar-
gaining.6 When negotiations began, the Company had the right to contract out any
6 In accordance with the terminology employed by the parties, I speak here of the
"union's rights." Actually the right involved is that of the employees acting through
their bargaining representative.
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all work which might be done in the bargaining unit, regardless of the availability
of its own men to do the work, subject only to the requirement that before taking any
such action it notify the Union and, on request, bargain with the Union on the matter.
The Union, when negotiations began, had the statutory right to bargain over contract-
ing out, but it had neither a statutory nor a contractual right to prohibit or to limit
contracting out. During the 1960 bargaining (and also in 1958 under a limited
reopener), the Union sought this further contractual right; i.e., it sought to limit by
contract the Company's right to contract work out. The Union's attempt was unsuc-
cessful. It failed to get this new right it sought, and under the "waiver" clause the
matter was closed for the life of the contract. But the fact that the Union sought and
failed to obtain a new right, a contractual prohibition or limitation of the Company's
preexisting right to contract out, does not alter the status of the Union's preexisting
statutory right to bargain over such contracts as were let. The failure to obtain a
new right is not a waiver of the old. There mere fact that the general matter of con-
tracting out is affected both by the Union's demand and by its preexisting right does not
convert the demand for the new into a waiver of the old. If, for example, the Union
had sought a general wage increase and failed to obtain it, the fact that "wages" had
been discussed could not be transmuted into a waiver of the right to bargain over
merit increases. To pose another example, if the Union had unsuccessfully sought a
contract giving it the right to certain data to which it was not entitled by statute (e.g.,
confidential cost data, or other matter which might be held irrelevant to its bargain-
ing duties), this would not be held a "waiver" of the right to data to which it was
entitled by statute. The waiver clause may relieve the obligation to bargain about
matters discussed in the bargaining, but discussion and lack of agreement on new
matter, not the subject of a statutory right, does not waive the statutory right merely
because it deals with a related matter.?
A further ground for rejecting the waiver contention based on the 1960 negotiations
is that the Company, in refusing the Union's demand for a limitation on contracting
out, took the position that the matter was one for local negotiation on a case-by-case
basis. The Company's position, as testified to by Labor Relations Director Frame,
is that the Union is free to bargain about matters which have been contracted out,
seeking that they be returned to the unit, but that such bargaining must follow rather
than precede the letting of the contract, and that the initiating burden is on the Union.
I find this position, as well as Mr. Frame's contention that the Company could contract
out the entire work of the unit without bargaining with the Union, unsound as a
matter of law, but I also find it inconsistent with the theory that the Union by attempt-
ing through national bargaining to limit contracting has waived its statutory right to
bargain at the local level about particular contracts.
Separate consideration must be given to the 1963 negotiations. The Union's first
proposal, like its 1960 proposal, was to limit contracting. But on October 9, 1963,
after this proceeding had been instituted, tho Union made a more limited proposal,
consisting substantially of a statement of its statutory bargaining right. This of
itself points up the fact that previous proposals had not dealt with this aspect of the
matter and hence did not amount to a waiver under the contract. The Company urges,
however, that the October 9, 1963, proposal read in connection with the waiver clause
in that contract shows that the matter is now waived. This argument has some force;
indeed it derives force from the very considerations which destroy the "waiver" argu-
ment as to the 1960 negotiations. I am constrained to reject it for several reasons:
first, the record contains no evidence that the proposal of October 9, 1963, was ever
"discussed," as the "waiver" clause requires; second, the Company's violations of the
statute which are the subject of this litigation were already complete and the litigation
was in progress at the time the proposal was made: third (and related to the second),
the dropping of the proposal suggests that the Union was content to rest on having
the issue decided in the pending litigation; fourth, the parties are at odds as to the
extent of the statutory obligation, and a decision on this matter is incumbent as in
7 The "waiver" claim here is somewhat different from that advanced in Shell Oil
Company, footnote 5, supra. In that case, now pending before the Board, the contract
limited the employer's right to contract work out by providing that the wage rates on
such contracted work should not he less than those paid by Shell for comparable work.
Company counsel states in his brief in the instant case' "We do not know what argu-
ments Shell used to claim that this language constitutes a waiver The language does
not purport to be a waiver, and we can see nothing in it to even suggest that it was
intended or expected to be a waiver . . . We are inclined to agree with the Trial
Examiner that far plainer language than this would be required to establish a waiver "
But the fact that the parties here used terms of "waiver" does not settle the matter, as
the question remains, what was waived
WESTINGHOUSE ELECTRIC CORP. (MANSFIELD PLANT) 1587
negotiations for future contracts the Union may not propose a clause phrased in terms
of its statutory rights.
Finally, the waiver clause may properly be read as waiving the duty to bargain for
a contractual obligation during the life of the contract; it is not a clear and unmistake-
able waiver of statutory rights. The Union's effort to add a contractual right identical
to its statutory right was unsuccessful (cf. The Timken Roller Bearing Co. v. N.L.R.B.,
325 F. 2d 746, 751 (C.A. 6), cert. denied 376 U.S. 971; N.L.R.B. v. Gulf Atlantic
Warehouse Company, 291 F. 2d 475 (C.A. 5)), and under the waiver clause, the
Union may not during the life of the contract renew its efforts to obtain such a con-
tractual right. Statutory rights, however, are not waived by such general language as
is used here. The Company argues that such "waiver" language was approved by the
Board in The Jacobs Manufacturing Company, 94 NLRB 1214, 1220, footnote 13.
But the Board was there concerned with the right of the Union during the life of a
contract to bargain over the addition of new substantive terms of employment, and a
waiver of the right to bargain in those circumstances meant no more than that the
terms of employment would continue unchanged. In the instant case leaving matters
unchanged by contract leaves the Union with its statutory right. Again it is helpful
to analysis to realize that when the bargaining commenced, the Union possessed
statutory protection against the Company's taking unilateral action in contracting work
out. To change that statutory condition the Company, not the Union, required con-
tractual language waiving the Union's right. The record leaves no room far'doubt
that had the Company in the course of negotiations proposed any language waiving
the Union's right to bargain over subcontracting, the Union would have vigorously
rejected it, just as the Company rejected limiting the conditions under which it could
subcontract. The Company which made no attempt to obtain any waiver by the
Union of the latter's statutory rights in this area cannot derive such a windfall from
the Union's abortive effort to add a contractual right to its preexisting statutory right.
4. Summary
As'the foregoing discussion makes clear, I reject the Company's theory that the
Company is under no obligation to discuss with the Union the contracting out of work
done in the Mansfield Plant, that the Company could wipe out any and all jobs at the
plant without negotiating with the bargaining agent, and that such "farming out, up to
100 percent, remains strictly a management prerogative." See Tr. 288-290, and cf.
Fibreboard Paper Products Corporation, supra. I find and conclude that the Com-
pany has a duty under the Act (except in emergency situations) to notify the bargain-
ing agent before contracting out work which could be performed by men and equip-
ment available in the bargaining unit, and to bargain with the Union, at its request,
over whether such work should be contracted out or retained. This duty may be dis-
charged by making the Union a participant in the Company's regular "make or buy"
deliberations, or by apprising the Union (upon its request) of the considerations under-
lying the determination to "buy" rather than to "make," and giving the Union a good-
faith hearing thereon. As in other cases prohibiting "unilateral" action, what is
required is notice and, where requested, bargaining; it is bargaining, not agreement
which is the sine qua non. See footnote 5, supra. But the statute proceeds from the
premise that the bargaining agent should be apprised before action is taken which
directly affects employment in the bargaining unit, and a loss of work or of work
opportunities has such a direct effect in terms of layoff or potential layoff or failure
to recall or loss of possible overtime.
THE REMEDY
I shall recommend that the Company cease and desist from its unlawful conduct,
that it give the Union notice and opportunity to bargain with respect to any proposed
contracting out of work (of a nonemergency nature) which could be done by men and
equipment available in the bargaining unit, and that it post appropriate notices.
Charging Party requests that the order include a requirement that the Company recall
or reclassify employees who either lost employment or "bumped" into inferior jobs
because of the contracting out of work. I find such a remedy inappropriate here as
it is highly speculative that compliance with the bargaining obligation would have
caused the recall or reclassification of any such employees. Cf. N.L.R.B. v. Citizens
Hotel Co., d/b/a Hotel Texas, 326 F. 2d 501, 508 (C A. 5).
CONCLUSION OF LAW
By failing to give the Union,notice and opportunity to bargain before letting con-
tracts giving to outside contractors and their employees work of a nature which could
have been performed by equipment and manpower within the bargaining unit, the
Company engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a) (5) and ( 1) and Section 2(6) and (7) of the Act.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Recommended Order omitted from publication.]
Cushman Motor Delivery Company and Walter E. Flack
Local 710, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Walter E. Flack.
Cases Nos. 13-CA-4543 and 13-CB-1140-f3. February 5, 1965
SUPPLEMENTAL DECISION AND ORDER
On March 6, 1963, the Board issued a Decision and Order 1 finding,
contrary to the Trial Examiner, that Respondent Local 710 had not
caused Respondent Cushman to discharge Walter E. Flack, the
Charging Party, in violation of Section 8(b) (1) (A) and (2) and
Section 8(a) (1) and (3) of the Act. The Board therefore dismissed
the consolidated complaint.
Flack then petitioned the Court of Appeals for the Seventh Circuit
to review and set aside the Board's Order. On November 7, 1963, the
court issued its decision,2 reversing the Board and finding, as had the
Trial Examiner, that Respondents had violated the Act as alleged.
In remanding the case, the court stated :
We conceive it to be within the special province of the Board to
formulate the order to be entered and the notice to be posted.
We suggest, however, that the order suggested by the Trial
Examiner would seem to be appropriate.
On November 22, 1963, the Respondents filed a motion requesting
the court to withdraw its opinion and judgment, to issue a citation
bringing them in as parties respondent; or, in the alternative, to
grant them intervention, to receive their brief, and to set the case
down for oral argument. On December 12, 1963, the court entered
an order denying Respondents' motion in all respects, except to
receive their brief. Respondents then filed a motion with the
Supreme Court of the United States requesting a writ of mandamus
to reverse the order of the circuit court denying their motion, made
after judgment had been entered, to make them parties, or to permit
them to intervene in the review proceeding initiated by Flack. On
March 23, 1964, the Supreme Court denied Respondents' motion [376
U.S. 948].
Thereafter, the Respondents filed with the Board a statement of
position opposing reinstatement and backpay, and the General Coun-
sel filed an opposition thereto. The Respondents then filed a reply to
the General Counsel's opposition.
Pursuant to the remand, and upon reconsideration of the entire
case , we 3 hereby set aside our previous Decision and Order in this
i 141 NLRB 146.
Walter E. Flack ( Cushman Motor Delivery Company ) v. N.L.R.B., 327 F. 2d 396
C.A. 7).
a Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated
its powers in connection with this case to a three -member panel [Members Fanning , Brown,
and Jenkins].
150 NLRB No. 154.