Allied Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 16, 1965

151 N.L.R.B. 718 (N.L.R.B. 1965)

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of any labor organization , except to the extent that this right
may be affected by an agreement in conformity with Section 8(a)(3) of the Act.
We will not discriminate in regard to hire or tenure of employment against any
employee because of membership in, or activity on behalf of, any labor organization.
U.S. MANUFACTURING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE -We will notify the above-named employees , if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois , Telephone No. 828-7572 , if they have any question concerning this notice or
compliance with its provisions
Allied Chemical Corporation ( National Aniline Division) and
District 50, United Mine Workers of America , Local 13942.
Case No. 5-CA-2563. March 16, 1965
DECISION AND ORDER
On August 7, 1964, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
The National Labor Relations 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
brief, and the entire record I in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
only to the extent consistent with the findings, conclusions, and order
set forth below.
The parties are in substantial agreement concerning most of the
factual circumstances in the instant case. Since it commenced opera-
tions at its Bermuda Hundred, Virginia, plant in 1955, Respondent
has recognized and bargained with District 50 as the bargaining
representative of its approximately 2,200 production and mainte-
nance employees, including those in the maintenance or repair de-
i The Respondent 's request for oral argument is hereby denied , as the record , includ-
Ing the exceptions and brief , adequately presents the issues and positions of the parties.
151 NLRB No. 76.
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 719
partment. The present dispute concerns that portion of the work of
this department which is classified as scheduled repairs and minor
construction? This work includes painting, installation of side-
walks, erection of small tanks and sheds, etc. Although this work
is within the competence of maintenance department employees and
has frequently been performed by them, the Company has always
subcontracted some of this work, on occasions and in amounts which
it decides without consultation with the Union. These decisions are
based solely upon economic considerations. The disputed mainte-
nance work is performed interchangeably by bargaining unit employ-
ees and employees of outside contractors. In many instances,
employees of the Company and outside contractors work together on
the same job, and in some cases work is begun by one group and com-
pleted by the other. The record reveals that there were "hundreds of
instances" during the year preceding the hearing in which work fall-
ing within the disputed classification was subcontracted.
It is undisputed that no bargaining unit employees have been laid
off as a result of Respondent's practice of subcontracting the dis-
puted maintenance work. To the contrary, the number of mainte-
nance department employees has increased each year since the plant
began operations in 1955, to its complement of 244 in 1963. In addi-
tion, there are unfilled vacancies within that department at the
present time. It is also undisputed that the maintenance department
has operated for some time on an overtime basis, and that some
maintenance department employees have worked so much overtime
that they have refused additional overtime assignments.
During bargaining negotiations with the Company in 1959 and
1963, the Union sought to limit the established practice of subcon-
tracting the disputed maintenance work. On each occasion, however,
the Union dropped its demands during the negotiations, and the
resulting collective-bargaining agreements remained unchanged in
this regard, with no reference to subcontracting.
Beginning on or about August 1, 1963, the Union again raised the
issue of subcontracting and requested notification each time the
Respondent planned to subcontract unit work. After several discus-
sions of the matter, the Company denied the Union's request.
The Trial Examiner, relying upon our Fibreboard and Town &
Country decisions ,a concluded that the Respondent violated Section
8(a) (5) and (1) of the National Labor Relations Act, as amended,
by refusing, in August 1963, to agree to notify and bargain with the
2 The parties agree that routine and preventive maintenance work is always performed
by maintenance department employees, and that major construction and specialized craft
work has always been subcontracted.
3 Fibreboard Paper Products , 138 NLRB 550 , enfd 322, F . 2d 411 (C A D C ), affirmed
379 U.S . 203; Town & Coantry Manufacturing Company, Inc , et at, 136 NLRB 1022,
enfd . 316 F. 2d 846 (C.A. 5)
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union before letting individual contracts for work which could have
been and frequently was assigned to maintenance department employ-
ees. She rejected, inter alia, the Company's defenses that its estab-
lished practice of subcontracting a portion of the maintenance work
had become a "term and condition of employment" about which it
was not obligated to bargain during the contract term and that, since
there was no loss of jobs or work, there was no obligation to bargain.4
The Trial Examiner's Decision issued prior to our decisions in
Shell Oil Company, 149 NLRB 283, and Westinghouse Electric
Corporation (Mansfield Plant), 150 NLRB 1574, which considered
the applicability of the Fibreboard subcontracting doctrine to situa-
tions where, as here, there exists an established practice of subcon-
tracting unit work, and American Oil Company, 151 NLRB 421.
Under those holdings, we find merit in Respondent's exceptions to
the Decision of the Trial Examiner, to the extent indicated by our
discussion below.
In describing the principles governing in such cases, we stated as
follows in Westinghouse :
It is also pertinent to the issue before us to observe that an
employer's duty to give a union prior notice and an opportunity
to bargain normally arises where the employer proposes to take
action which will effect some change in existing employment
terms or conditions 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 invariably appeared that the contracting
out involved a departure from previously established operating
practices, effected a change in conditions of employment, or
resulted in a significant impairment of job tenure, employment
security, or reasonably anticipated work opportunities for those
in the bargaining unit.5
In Westinghouse, we found that the making of subcontracts fol-
lowed a familiar pattern in accord with the Respondent's usual
method of conducting its business, that the subcontracting in issue
did not vary materially in kind or degree from the practice in the
past, and that the subcontracting had no significant impact on the job
interests of unit employees. The complaint in that case was, there-
fore, dismissed.
In the case before us, Respondent was following an established
practice of some 8 years in subcontracting a portion of its mainte-
nance work. And, unlike the Trial Examiner, we cannot find, on the
4 In view of our disposition of the case, we find it unnecessary to pass upon the other
contentions raised by the Respondent, all of which were rejected by the Trial Examiner.
5 Westinghouse Electric Corporation ( hfansfiield Plant ), 150 NLRB 1574.
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 721
state of the record before us, that there has been a "substantial" 6
increase, if there has been any at all, in the amount of subcontracting
after execution of the most recent collective-bargaining agreement
between the parties on June 14, 1963. The Trial Examiner's finding
of such an increase is supported only by the testimony of Union
Representative Fohl who admittedly had little, if any, direct knowl-
edge of the extent of subcontracting before or after that date.
Rather, Fohl's testimony was based on complaints he received from
employees within the maintenance department to the effect that there
was an increase in the amount of subcontracting after that date.
The Trial Examiner relied in part on the fact that, although Re-
spondent was in the best position to present precise information as to
the extent of subcontracting before and after June 14, it did not
attempt to present evidence contrary to Fohl's testimony. She also
relied on the testimony of certain company witnesses concerning the
renovation program which was underway during the summer of 1963.
Viewed in the most favorable light, Fohl's testimony can be con-
sidered as no more than a hearsay account of a general conclusion
on the part of an unidentified employee or employees. Furthermore,
the testimony concerning the Company's renovation of its plant fails
to identify the amount of work subcontracted, the dates of com-
mencement of the renovation or the letting of any individual subcon-
tracts pursuant thereto, or the nature and amount of any work which
can be specified as having begun after June 14. Thus, we are unable
to conclude that the Trial Examiner's finding of an increase after
that date is supported by evidence of probative value.
Additionally, as noted above, there is no showing that Respondent's
subcontracting resulted in any detriment to bargaining unit employ-
ees. In fact, as previously indicated, the record reveals that the
maintenance department has been working for some time on an over-
time basis, that no employee has been laid off as a result of the sub-
contracting, and that the Company is actually seeking additional
employees for its maintenance department which has continually
increased since establishment of operations in 1955. Thus, there is
no showing of any detriment, let alone the "significant" detriment
mentioned in the Westinghouse and American Oil Company cases.7
We further note that the record does not establish that Respondent
at any time failed or refused to meet and bargain with the Union at.
the latter's request about changes in existing subcontracting prac-
tices or about whether notice should be given in advance of the
letting of individual subcontracts. The fact that Respondent, follow-
6 See Cloverleaf Division of Adams Dairy Co , 147 NLRB 1410.
4 See also in this regard, Kennecott Copper Corporation (Chino Mines Division), 148
NLRB 1653 at footnote 1
783-133-66-v of 151-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing good-faith negotiations on such subjects, may have failed to
agree to the Union's proposals cannot, of course, supply a predicate
for a finding of an unlawful refusal to bargain.
For all the foregoing reasons, and in accordance with the Westing-
house and American Oil Company cases, we find that Respondent
did not violate Section 8(a) (5) and (1) as alleged, and shall order
that the complaint be dismissed.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
Upon a charge filed on August 28, 1963, by District 50, United Mine Workers of
America, Local 13942, herein at times called the Union, the General Counsel, acting
through the Regional Director for Region 5, issued a complaint on December 10,
1963, alleging that Allied Chemical Corporation, National Aniline Division, herein at
times called Respondent or the Company, had engaged in conduct which violated
Section 8(a) (5) and (1) of the Act. In its answer, the Company admitted certain
allegations of the complaint, such as the commerce allegations, but denied having
committed any unfair labor practices.
Thereafter, pursuant to due notice, a hearing was held in Richmond, Virginia, on
January 27, 1963, before Trial Examiner Rosanna A. Blake. All parties were repre-
sented by counsel and were afforded full opportunity to present evidence, to examine
and cross-examine witnesses, to argue orally, and to file briefs. Respondent pre-
sented oral argument. Thereafter, counsel for the General Counsel filed a brief as
did counsel for Respondent.
Having considered the entire record and the briefs, and from my observation of
the witnesses while testifying, I make the following•
FINDINGS OF FACT
1. JURISDICTIONAL FACTS AND CONCLUSIONS; THE LABOR ORGANIZATION INVOLVED
Respondent is a corporation operating places of business at various locations
including a plant at Bermuda Hundred, Virginia, where it is engaged in the produc-
tion of nylon fiber . In the 12 months prior to the issuance of the complaint, a rep-
resentative period, Respondent received goods, materials, and products at its Ber-
muda Hundred plant valued in excess of $50,000 from points located outside the
Commonwealth of Virginia. During the same period, Respondent shipped products
valued in excess of $50,000 directly from its Bermuda Hundred place of business
to points located outside the Commonwealth of Virginia.
Upon the foregoing undisputed facts, I find, as Respondent admits, that it is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that District 50, United Mine Workers of America,
Local 13942, is a labor organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Company's subcontracting before and after June 14, 1963
Respondent began operations at its Bermuda Hundred plant in 1955 and since that
time has recognized and bargained with the Union as the bargaining representative
of its production and maintenance employees. The parties have entered into a series
of contracts, the most recent being signed on June 14, 1963.
One of the departments or sections within the unit represented by the Union is the
repair or maintenance department. As its name indicates, the employees in that
section do repair and maintenance work of various types.' Some of the work, such
as routine and preventive maintenance, is always performed by the Company's
employees. Other work, such as major construction, the painting of high water
towers, and specialized electrical work is not within the competence of the Company's
1 The repair department had grown from 3 employees in 1954 to 244 employees in
1963. In the latter year, the Bermuda Hundred plant had about 2,200 employees, in-
cluding supervisors.
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 723
employees and has always been subcontracted. A third type of work, scheduled
repairs and minor construction , such as painting , putting in sidewalks , and erecting
small sheds, is within the competence of the employees in the maintenance or repair
section and they frequently do such work. However, the Company has always sub-
contracted a portion of this latter type work and the instant case involves the sub-
contracting of such work; i.e., work of the type which company employees can and
frequently do perform.
It is undisputed that company employees and subcontractor employees often work
side by side and there have been instances in which work is started by company
employees and finished by the outside contractor and vice versa. It also appears
that the outside employees are at times supervised by company supervisors who have
also effectively recommended their removal from the plant for incompetence.
It is also undisputed that the Company does not notify the Union before letting
a subcontract and the Union, therefore, has no opportunity to bargain about specific
decisions to subcontract.
According to the Company, the factors considered when deciding whether to assign
a job to its own employees or to subcontract it include whether the employees have
the necessary skill and experience, safety, the number of employees and estimated
time required to do the job, and the workload of the employees. Admittedly, one
of the factors considered is the extra pay for overtime. Delmar A. Feil, the Com-
pany's chief engineer for the fibers division, testified that the basic policy of the
Company is "to maintain a minimum force for repairing and maintenance ... and
to be able to draw upon a large pool of labor for handling problems that require a
larger number of persons" and to utilize that pool to meet time schedules.
Although some of the Company's employees have worked so much overtime that
they have refused additional overtime, Maintenance Superintendent Robert H. Col-
mer admitted that it was possible that some employees had lost overtime because of
the subcontracts. Colmer also admitted that the employees are not always asked
whether they want to work overtime before the decision to subcontract is made. It
is also undisputed that no repair department employee was laid off, at least between
March 1963 and January 1964, and that the Company has unfilled vacancies. The
record, however, does not indicate whether the vacancies are in classifications which
perform the type of work involved in the instant case.
Prior to the summer of 1963, the Union had not considered the subcontracting to
be a serious problem although at least one grievance had been filed as the result of
a subcontract let by the Company.2 Then, according to the Union, in the summer
of 1963 subcontracting became a "big problem" and the Union was "troubled very
badly" with complaints by maintenance employees about contractor employees
"moving" in and doing work the employees had "normally done." Union Represent-
ative Robert R. Fohl testified repeatedly that there was a marked increase in the
amount of subcontracting after the bargaining contract was signed on June 14, 1963,
and his testimony was not seriously challenged by Respondent's witnesses although
they, rather than the Union, would know precisely how many contracts were let and
the average number of subcontractor employees at the plant in the 6 months prior
to the signing of the contract and in the 6 months after June 14, 1963.3 Maintenance
Superintendent Colmer would not estimate the percentage of the work subcontracted
before the summer of 1963 but said only that it was "substantial." Although he
testified that he tried to maintain the status quo and that he did not intend to change
anything "radically," I am convinced and find that there was a substantial increase
in subcontracting in the summer of 1963.
2 Assistant Superintendent of Maintenance Webb's report on the grievance, dated
March 14, 1963, states that he told the grievant that he did not think the employee had
a grievance, that the Company was working "too much overtime," that its plan was to
operate the maintenance department "on a minimum of overtime," that it wanted to
prevent layoffs, that no one's job was jeopardized, that the backlog was climbing to
"unmanageable levels," and that "our responsibilities are the maintenance of the plant
and construction work is secondary ." The grievance was "denied" and "died" after
the third step meeting
3 It is clear that Fohl had little direct knowledge of the number of subcontracts let
before or after June 14 and was basing his testimony on the number of complaints re-
ceived from the employees. The latter, of course, would have no way of knowing the
number of contracts let but could observe an increase in the number of outside em-
ployees around the plant.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reason for the increase was probably due in part , if not primarily, to the
increase in the amount of maintenance work being done. This increase , it appears,
was caused by the Company's decision to renovate the plant because a considerable
portion of it was 8 or 10 years old .4
B. The contract signed on June 14, 1963
In May and June 1963, the Union and the Company negotiated a new contract.
One of the Union's demands was that the contract "Provide limitations on mainte-
nance work being done by construction employees." According to Superintendent
of Industrial Relations Melvin J. Dunklau, a witness for Respondent,
the first time the [subject of subcontracting was mentioned] the union explained
what they meant by the demand which was very clear from the writing. I think
at the second discussion, that item was discussed and the company informed the
union that this was as far as we were concerned a strike issue with us. That we
had a plant of the corporation which had taken a rather long strike rather than
to submit to such a demand. At the third discussion ... the company ... listed
certain items which we felt we were going to be very stubborn about and the
union in turn listed out of these one hundred and twelve items, a list of items
they were going to be stubborn on. And this was one of those. Then on the
very last meeting ... this ... item was again listed by the union as one of the
items that they had to have to get an agreement and it was not listed in our
proposal for settling the contract and it was dropped at that time, apparently,
because it was no longer discussed.
On June 14, 1963, the Union and the Company signed a contract which contained
no clause with respect to subcontracting. It did, however, contain a grievance pro-
cedure culminating in arbitration and a management functions clause which reads:
It is recognized that all management functions whether heretofore or hereafter
exercised, and regardless of frequency or infrequency of their exercise, shall
remain vested exclusively in the Company. It is expressly recognized that these
functions include, but are not limited to, (1) full and exclusive control of the
management and operation of the plant, (2) the direction and the supervision
of the working forces, (3) the scheduling of production, (4) the right to deter-
mine the extent to which and the means and manner by which the plant and the
various departments thereof shall be operated or shut down, (5) the right to
introduce new or improved methods or facilities, (6) the reduction or increase
of working forces or production, and (7) the right to hire, train, suspend, disci-
pline, discharge, promote, demote, transfer, release and lay off employees and
establish, schedule and assign jobs, subject to the provisions of this Agreement.
The above clause had appeared in every contract since 1955. In the 1963 negotia-
tions, the Company rejected a union proposal that the word "exclusively" be deleted
from the above clause.
At one point , Maintenance Superintendent Colmer was asked if painting had been
subcontracted in the past and he answered, "I don't know ." Later , he seemed to be
saying that painting, of the type which the employees could do, had been subcontracted
earlier. Colmer also testified , "I might add one more thing with respect to painting, our
plant is in the neighborhood of eight or ten years old, a good portion of it Although
there had been considerable expansion and as a result a lot of it is in need of paint.
This is the reason we had so many contract painters on the job for the series of time.
We are catching up but it just deteriorated over the years ." [ Emphasis supplied.]
Colmer began working at the plant in March 1963 and became superintendent on May 1.
It is doubtful whether he knew precisely how much work , comparatively , had been sub-
contracted prior to the spring of 1963 When Chief Engineer Fell was asked when the
renovating began, he answered , "I don't think I can pin that down by time . . . .
It Is also necessary to keep in mind that the instant case does not involve the subcon-
tracting of major construction work which has never been done by company employees
and has always been extensive because of the almost continuous expansion of the plant.
5 1 do not credit Dunklau's testimony that the Union , during the contract negotiations,
sought notification about each and every contract and objected to letting painting con-
tracts to a Mr . Thomas In the first place, his testimony set forth above makes it clear
that the only discussion concerned the Union ' s demand for a limitation- on-contracting
clause In the second place, when Maintenance Superintendent Colmer was asked if
Thomas started in July, he replied , "I'm not sure of the date . . . '
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 725
In the 1959 negotiations the Union had demanded: (1) contractors not to be
used on jobs repair section usually does; (2) union committee to be consulted in
anticipation of such work; (3) contractors to be given list of people on layoff to be
used on construction whenever possible. The contract as signed did not incorporate
any of the above provisions. However, on March 15, 1959, Plant Manager Maguigan
sent the Union a letter to "cover" the understanding reached during negotiations.
According to the letter: "During periods that employees are laid off and outside
contractors are perfoiming work in National Aniline Division's Chesterfield Fiber
Plant, the Company shall inform such contractors that there are laid off employees
available for employment."
C. The postcontract discussions with respect to subcontracting
On August 1 District 50 Union Representatives Robert R. Fohl and C Wayne
Gilbert and Local President Frank Bryant met with Superintendent of Industrial
Relations Melvin J. Dunklau and the then plant manager, C. R. Thomas. One of
the subjects discussed was subcontracting. The union representatives stated that the
Union wanted to be notified each time the Company planned to subcontract work
and wanted the opportunity to discuss it with the Company. Union Representative
Fohl told the Company that the subcontracting was causing confusion in the plant
and a "great amount of unrest" among the employees because of the acceleration of
subcontracting in the last few months. Fohl also expressed the opinion that notifica-
tion and bargaining would be in the Company's interest as well as in the interest of
the Union The management representatives answered that they did not know the
company policy but Dunklau said he would check into the matter and would let the
Union know.
Dunklau was about to go on vacation and when, on August 12, the Union had
received no statement from the Company, Union Representative Fohl wrote the
Company a letter in which he referred to the August 1 meeting and "advised" that
the Union was "objecting" to the effect on its members of subcontracting work and
was charging that the Company was "subcontracting work to other employers with-
out notifying this Organization, which represents the affected employees and without
giving this Union an opportunity to bargain concerning changes in working condi-
tions of the employees." The letter closed with a request for an immediate answer
to the Union's contentions and charges.
At a grievance meeting on August 26 at which management was again represented
by Dunklau and Thomas, the Union again raised the subcontracting question.° The
management representatives had nothing in writing to give the Union but stated that
the Company apparently was doing only what it had done for 8 years, that nobody
had been laid off, and that the maintenance employees were working overtime.
Finally, Dunklau said that the Company would advise the Union on jobs it wanted
to advise the Union on, that a Mr. Bishop and Maintenance Superintendent Colmer
would answer questions about the subcontracts after they were let, but that the Com-
pany would not notify the Union prior to letting the subcontracts. Fohl further tes-
tified that the Union had never been "advised" on any subcontract prior to its
execution.?
D. Analysis and conclusions
1. The statutory duty to bargain
Section 8(a) (5) of the Act requires an employer to bargain with respect to wages,
hours, or other terms and conditions of employment even though the action he pro-
poses to take is motivated by economic reasons. For example, no one would con-
tend at this late date that an employer is not required to bargain about wages because
the rates he proposes to put into effect are based upon his financial situation. Fur-
thermore, most if not all collective bargaining concerns subjects which were once
regarded as matters strictly within management's prerogative. This does not mean,
of course, that an employer is required to agree to the union's proposals but only that
he is required to explain his position to the representative of the employees and listen
to the union's arguments with an open mind.
9I credit the testimony of Union Representative Fohl that the grievance or grievances
discussed at the meeting had nothing to do with subcontracting.
7 The above findings are based on the virtually undenied testimony of Fohl which I
credit. In view of Dunklau's testimony on direct examination concerning what was said
during contract negotiations, I do not credit his testimony that the Union, during negotia-
tions, had requested consultation before individual contracts were let.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has held in a series of cases that the employer's duty to bargain created
by the statute includes the duty to notify the employee representative of his intention
to subcontract the work of an entire department and to give the Union an oppor-
tunity to bargain with respect to that decision.8 In my opinion, the reasoning on
which this holding is based is equally applicable to cases in which the employer plans
to subcontract only part of the work in the unit. To hold otherwise would mean
that an employer could achieve the same end, i.e., the subcontracting of all of the
work in the unit without having to bargain, if he did it piecemeal rather than all
at once.
The Board's holding with respect to the subcontracting of work is based on the
view that subcontracting is encompassed within the statutory definition of matters
concerning which the employer is required to bargain. It reasons that subcontracting
can and usually does affect the employees' wages, hours, and conditions of employ-
ment in that it can or may deprive them of work which they would otherwise
perform.
It is true that in the instant case no employee has lost his job (at least in the past
year) because of the Company's decision to subcontract some of the work and it is
clear that, notwithstanding the subcontracts, some of the employees have worked
many hours of overtime 9 This does not mean, however, that the employees and
their representative do not have a legitimate interest in the Company's subcontract-
ing policy and plans. It is possible, for example, as Maintenance Superintendent
Robert H. Colmer admitted, that some of the employees had lost overtime work
because of the subcontracting. The employees and their union might also take the
position that the Company was subcontracting the more desirable work and retain-
ing the less desirable work for its own employees or, they might argue that the
employees had the skill to do certain jobs which the Company believed they were
not capable of doing.
Nor does the fact that, thus far, the subcontracts probably had little adverse effect
on the employees' wages, hours, or terms and conditions of employment mean that
they cannot reasonably fear that the subcontracting, which was accelerated in the
summer of 1963, would or might jeopardize their jobs in the foreseeable future.'°
That the employees were distuibed is disclosed by Union Representative Fohl's state-
ment to management on August 26 that "it was causing confusion in the plant, with
people walking in there with rolls of copper tubing around their arm, pipe over their
shoulder, and our mechanics were greatly disturbed. There was a great amount of
unrest with the acceleration of the preponderance of this kind of work in the last
few months ......
Needless to say, the basic purpose of collective bargaining is to reduce or eliminate
employee unrest which can lead to labor disputes which affect commerce. A major
reason why collective bargaining reduces unrest is that it gives employees a sense of
security to know that their representative is being informed of the Company's plans
which could affect their job security or income and the reasons for such plans, and
is in a position to present, if necessary, the employees' "side" and/or alternative sug-
gestions before the plans have passed the point of no return. Indeed, one effect of
the Employer's refusal to notify the Union about its plans and to discuss them with
the Union is to create apprehension among the employees concerning the Company's
motives and the possible effect upon their job tenure and take-home pay. To put
it otherwise, the employees can reason that if the Employer's plans will not affect
them adversely, he would be willing to notify the Union concerning his plans and
assure the Union that the employees have nothing to fear.
2. Respondent's contentions
a. Respondent's "teiins and conditions of employment" argument
One of Respondent's arguments is that because the Company has always subcon-
tracted some of the work, subcontracting has become a "condition of employment"
8 See, for example, Fibreboard Paper Products Corp., 138 NLRB 550, enfd. 322 F. 2d
411 (C.A D C ), cert granted 375 U S 963; Town d Country Mfg Co, 136 NLRB 1022,
enfd. 316 F 2d 846 (C A 5) ; Stiller/ Plijicood Company, Inc., 94 NLRB 932, 969, enfd on
this point, 199 F 2d 319 (C A 4), cert. denied 344 U S 933; see also Local 24, Interna-
tional Brotherhood of Teamsters etc v. Oliver, 35S U S 283, 294-295
RAs set forth supra, some employees have had so much overtime they refused to accept
any more
m In the instant case, the employees could be apprehensive lest the Company continue
to subcontract work even when employees were available to do it, thereby leading to layoffs.
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 727
and, therefore, was not a subject about which it was required to bargain. The statute,
however, imposes upon employers the duty to bargain about terms and conditions
of employment, not merely about changes in terms and conditions of employ-
ment. Respondent itself concedes, at least tacitly, that it would be required to bar-
gain about subcontracting if requested to do so during contract negotiations. Indeed,
one of its major contentions is based on its claim that it did bargain about subcon-
tracting during the negotiations leading up to the 1963 contract and that the Union
waived its right to further bargaining by first seeking a limitation-on-subcontracting
clause and then signing a contract which was silent on the subject and which also
contained a management functions clause.
It seems to me, therefore, that Respondent's contention that it was not required
to bargain about subcontracting because subcontracting had become a condition of
employment is but a variation of its waiver contention which can be stated in a
number of other ways. One would be to say that the Union is estopped from making
a valid bargaining request on subcontracting during the term of the contract signed
in June 1963, because it had sought a limitation-on-subcontracting clause during
negotiations but, in the end, had signed a contract which contained no limitation on
the Company's right to subcontract. Another way would be to say that the Union's
failure to obtain the clause it sought meant that the contract, by its silence, gave the
Company the right to continue existing practices (terms and conditions of employ-
ment) throughout its term without bargaining even when requested to do so.
It also seems to me that Respondent's term and condition of employment argu-
ment treats as legally the same, situations which are or may be legally different.
The first situation arises when the employer acts "unilaterally"; i.e., he makes a
change in terms and conditions of employment, such as granting a wage increase,
without notifying the union. The holding in such cases means that the employer is
under a duty to notify the union before he makes the change and give it an oppor-
tunity to bargain with it." This duty, which is an exception to the general rule
which requires a bargaining request, is imposed because the union cannot request
bargaining about a change which it does not know is going to be made.
The second situation arises when the employer either continues to act in the same
way he has always acted or takes action after the union knows of a proposed change.
In such cases, the union has knowledge of the employer's practice or plan and, if it
remains silent, can be said to have agreed, by its conduct, that the employer can con-
tinue existing practices or make the proposed change.'2 Under these circumstances,
the employer is under no duty to notify the union that he intends to continue as in
the past or to effectuate a change and does not act "unilaterally" (in the illegal sense)
by in fact doing so.
The third situation is presented in a case in which there is no change in past prac-
tice and the union, instead of remaining silent, requests the employer to bargain
about it. Although, given union knowledge and no bargaining request, the employer
may continue as in the past without violating the Act, it does not necessarily follow
that he is under no duty to bargain once the union has requested bargaining. How-
ever, it is unnecessary to reach this question here for the instant case presents still
another situation.
In the case at bar, the Company increased the amount of subcontracting after
June 14, 1963, the Union requested notification and bargaining, and the Company
refused the Union's request.
Respondent's "waiver" contention is discussed in the next subsection.
b. Respondent's waiver argument
(1) The Union's demand for a limitation-on-subcontracting clause
According to the Company, the Union waived whatever right it had to bargain
about subcontracting by signing a contract which (1) contained no limitation on
the Company's right to subcontract, although the Union had sought such a limita-
tion, and (2) included the management functions clause set forth supra.
In the Company's view, the Union's demand for and failure to obtain an outright
ban upon or explicit limitation on subcontracting should be interpreted as a waiver
of its statutory right to bargain concerning specific subcontracts. I do not agree.
According to the testimony of Union Representative Fohl, which I credit, he was
never told by management that the reason the Company would not notify and bar-
gain with the Union about subcontracts was that the Union had waived its right to
11 N L.R B v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736.
12 Cf. Montgomery Ward & Co., Incorporated, 137 NLRB 418.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such notification and bargaining. Likewise, according to the credited testimony of
Fohl, the Union did not demand, during the 1963 negotiations, that the Company
notify it prior to letting subcontracts, its only demand being that the contract contain
some limitation on the Company's subcontracting.
Let us assume for the moment that the shoe was on the other foot. Let us suppose
that the employer, during contract negotiations, demands but fails to get a flat ban
or limitation on union stewards conducting union business on company time. It does
not choose to make a strike issue of the matter because such activity, although it has
occurred, has not been a "major problem." Then, after the contract is signed, the
stewards begin to conduct much more union business on company time. Surely, the
fact that the Company failed to obtain a limiting clause in the contract does not mean
that it waived its right to notification and discussion about specific activity by the
stewards. Similarly here, as previously noted, although the Union failed to obtain
a limitation clause, it could argue that the effect of a specific subcontract was to retain
less desirable work for the Company's employees and to give the more desirable work
to the employees of subcontractors.
More important still, the subcontracts are not for the same jobs year after year,
such as cleaning boiler A or painting building B. On the contrary, the testimony of
Respondent's own witnesses discloses that the decision to subcontract a particular
job depends upon the situation in the plant at the given moment This means that
the Union could not bargain intelligently during contract negotiations about the effect
on the employees of individual subcontracts because not even the Company knows
what, or how many, or when contracts will be let during the term of the bargaining
agreement.13
Finally, and most important of all, Congress created the Union's right to bargain
in the public interest so that the question of waiver must be determined in the light
of the policies of the Act. Thus the Board occasionally refuses to give effect to even
a specific waiver if, in its opinion, to do so would seriously interfere with the exercise
by employees of basic rights under the Act. See, for example, Gale Products, Div.
of Outboard Marine Corp, 142 NLRB 1246, 1247-1249. And it is for the same
reason that the Board, with court approval, holds that a waiver must be in "clear and
unmistakable" language Timken Roller Bearing Co. v. N.L.R.B., 325 F. 2d 746,
751 (C.A 6), enfg. 138 NLRB 15, cert. denied 376 U.S. 971.
In Timken, the union unsuccessfully sought a clause setting forth a statutory right.
In rejecting the employer's waiver contention, the court agreed that it would prob-
ably have merit "if the right or benefit sought by the Union was a right or benefit
which could only be acquired by virtue of the bargaining agreement" such as a wage
increase, longer vacations, and pension rights. However, where, as in the instant
case, the Union's right was one created by the statute and its "existence ... was not
dependent upon it being included in the bargaining agreement," the court held that
it was immaterial that it was not set forth in the contract. 325 F 2d at 751.14
In N.L.R.B. v J. H Allison & Company, 165 F. 2d 766 (C.A. 6), cert. denied
335 US. 814, the employer and the union had a contract which was silent on the
subject of merit wage increases. A few months after the contract was signed, the
company gave a number of merit increases "in conformity with its past practice "
When the union asked for the names of the employees and the amount of the
increases, the company refused to furnish the information. In contract negotiations
the next year, the union again sought to bargain about merit increases but dropped
its request because it appeared that the issue would be settled in the proceedings then
underway before the Board. In affirming the Board's findings and order, the court
asserted that it saw no "legal justification" for the view that because the union entered
into a contract which was silent on the subject, it "should be held to have waived any
rights secured under the Act, including its right to have a say-so as to so-called merit
increases. Such an interpretation would seem to be disruptive rather than fostering
in its effect upon collective bargaining, the national desideratum disclosed in the
broad scope of the first Section of the National Labor Relations Act." 165 F. 2d
at 768.
11 Cf. the statement in Respondent's brief that in a case in which the union does not
know what jobs may be contracted during the term of the contract, it "has not necessarily
acquiesced in the company's right to make a particular contract, because the Union did not
know at its negotiations what subcontracts would be let "
14 See also N L.R B v Gulf Atlantic Warehouse Company, 291 F 2d 475 (C.A. 5). In
The Jacobs Manufacturinq Company, 94 NLRB 1214, 1220, footnote 13, the Board was
concerned with the union's right to bargain about a new substantive term of employment.
And Speidel Corporation, 120 NLRB 733, dealt with bonuses, which is also a subject on
which the union's rights depended on the contract rather than on the statute.
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 729
As for the employer's argument in Allison that it had a right to give such increases
"unless there is an express stipulation in the bargaining agreement to the contrary,"
the court had this to say (165 F. 2d at 768) :
We think the logical deduction to be drawn from the opinions of the Supreme
Court is that by virtue of the National Labor Relations Act the obligation .. .
to bargain ... includes the duty to bargain ... concerning individual increases.
. [A merit wage increase] does, in actuality, effectuate changes in rates of pay
and wages, which are by the Act made the subject of collective bargaining.'5
Unquestionably, Respondent's contentions, including its waiver contention, would
have much more merit had there been no change in the level of subcontracting after
the 1963 contract was signed. Indeed, it seems clear that it was the increase which
gave rise to this case. In addition, bargaining might well have eliminated the
employee unrest described by Union Representative Fohl and might have prevented
the Union from filing the charge which set this case in motion. This is possible
because it is fairly clear that the increase in subcontracting in the summer of 1963
was due at least in part to the decision to renovate the plant. If so, once the reno-
vating was finished, the Company would probably do no more subcontracting than
it had done in the past. If this is in fact the case, the Union might well have accepted
the situation had the Company explained the reason for the increase, that it was
only temporary, and represented no basic change in policy. Of course, if the increase
did represent a change in basic policy, then there had been a change in "terms and
conditions of employment" which Respondent itself seems to concede created a duty
to bargain.
Although the Union knew that Respondent had done some subcontracting in the
past, nothing in the record suggests that when negotiations were in progress, in May
and June 1963, the Union had any reason to believe that subcontracting would
increase whereas the Company almost certainly was already making plans to reno-
vate the plant Although the Union had not been happy about past subcontracting,
the amount had not been such that the Union considered it a major problem. As a
result, it chose not to make subcontracting a strike issue. On the other hand, had
the Union known that the amount of subcontracting was to increase shortly, it might
well have acted differently.'( As a matter of fact, Union Representative Fohl testi-
fied that the Union did not "have the magnitude of the trouble" before the contract
was signed that it had afterward and added that if the problem had been as great,
"it [would] have been a strike issue, I guarantee you that."
Furthermore, a holding that a union waives its right to bargain by signing a con-
tract which is silent on a subject that is not regarded as a "major" problem would
clearly have an undesirable effect upon bargaining negotiations. Such a holding
would unnecessarily complicate and prolong negotiations for it would mean that
unions would feel obligated to insist on clauses to protect the employees from all
kinds of possible "adverse" changes even though it had no reason to suppose that
such changes would be likely to occur.17 In addition, unions which did not obtain
"protective" clauses would almost certainly insist on short-term contracts which would
require renewed bargaining perhaps every year. Furthermore, as the Board pointed
out in Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410:
To hold that mere failure . . . [to obtain a veto power over subcontracting]
operates as a forfeiture of a statutory right would have the effect of restricting
a Union's freedom in a legitimate area of collective bargaining. It would greatly
lessen the possibility that a union would bring up matters of this sort in the
hope and expectation that good faith exploration of the issues might result in
agreements which would eliminate future disputes, save in situations where a
union was sure it could achieve its demands or where it was willing to strike to
force employer concurrence. This would be "disruptive rather than fostering
in its effect upon collective bargaining," [footnote omitted] and hence contrary
to the broad policy directives of the Act.
15 Cf Armstrong Cork Companil v N L N B , 211 F. 2d 843, 848 (C.A. 5).
18 Unions, like other contracting parties , are influenced by practical considerations. For
example, if the employer has rarely operated on Sunday, the Union might well be willing
to accept time and a half for Sunday work whereas it would insist on double pay for
Sunday if it knew that the amount of Sunday work was to increase
17 Needless to say, unions have little information and are in a position to obtain little
advance information about company plans except through collective bargaining.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts and contentions in Cloverleaf are very similar to those in this case. In
Cloverleaf, the company entered into subcontracts which made a "substantial change"
in working conditions and the company argued that the union had waived its right
to bargain because of the bargaining history. Thus, during contract negotiations in
1959, the union proposed a "change in operations provision" which would have
required notice to the union and deferred changes until they were mutually agreed
to but had dropped its demand on receiving assurance that it was not needed because
a contract provision fully protected the employees. The union made the same pro-
posal in the 1961 negotiations but did not press it.
In the instant case, of course, the Union had demanded a limitation-on-subcon-
tracting clause and did not get it. Although in the case at bar, the Union had been
given no assurances at any time, the Board's Cloverleaf opinion is equally applicable
here. In its words-
The fact that the Union attempted unsuccessfully to include in its contracts
a statement of its statutory right to bargain about changes in working conditions,
coupled with a provision giving it a veto [power] over institution of any such
changes, is not evidence that the Union waived its statutory right to advance
notice and opportunity to bargain about such changes [footnote omitted]. All
that can be inferred from the negotiating history is that the Union has failed to
achieve a contractual veto over subcontracting changes. Any other reading of
the negotiating history would place the Union in the anomalous position of
losing its statutory right it would otherwise have to bargain over specific sub-
contracting changes as they might arise simply because it had sought unsuccess-
fully to achieve a specific contractual provision to regulate and govern all such
future situations. [Emphasis supplied.]
(2) The management functions clause
I also reject Respondent's contention that the management functions clause vested
in the Company the absolute right to subcontract work. Although certain of the
provisions therein could be so interpreted, the question to be decided is whether, in
view of all the circumstances, they should be so interpreted.
In the first place, there is no reference to subcontracting in the management func-
tions clause. In the second place, and more importantly, the same clause had been
in every contract since the first one in 1955 and there is no evidence that management
had ever advised the Union of the interpretation it now places upon it. Indeed, it
does not appear that the question of whether the clause applied to subcontracting
was discussed even at the meeting on August 26, when the chief subject was sub-
contracting. This omission is particularly significant since the management repre-
sentatives were not speaking "off the cuff" but after "checking it out with [the] legal
department." Under these circumstances, there is no showing that the parties
designed or understood the management functions clause to encompass any and all
forms of contracting out United Steelworkers of Ameitca v. Warrior & Gulf Navi-
gation Co ., 363 U.S. 574, 584.18
(3) Summary
It is true that a union, by its conduct, may waive a statutory right. But a waiver is
not to be lightly inferred and the record must show that the matter was "fully dis-
cussed" or "consciously explored" and that the union "clearly and unmistakably
waived its interest in the matter." See Proctor Manufacturing Corporation, 131
NLRB 1166, 1169; The Press Company, Incorporated, 121 NLRB 976, 977-978, and
cases cited therein; Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410.
In my opinion, the evidence upon which Respondent relies, i.e., the Union's request
for and failure to obtain a limitation-on-subcontracting clause and its signing of a
contract including the management functions clause set forth supra, "falls short" of
the requisite standard of proof required to establish a waiver by the Union of its
statutory right to advance notice and opportunity to bargain about specific subcon-
tracts. Cloverleaf Division of Adams Dairy Co., supra. Even assuming arguendo
that the Union had waived its right to notice and bargaining, had the amount of
subcontracting remained approximately the same, I am unable to find that it waived
its right when the amount increased substantially. And once the amount had
increased so that the effect upon the employees' terms and conditions of employment
increased, all subcontracts became legitimate subjects for notice and bargaining.
is In my opinion, LeRoy Machine Co., Inc, 147 NLRB 1431, is distinguishable in that
the management rights clause in that case explicitly included the right to "determine the
qualifications of employees "
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 731
E. Respondent's arbitration contention
Respondent also argues in its brief that the subcontracting issue is one which can
and should be handled under the grievance and arbitration provision of the contract.19
However, there is no evidence that management ever suggested to the Union that
the question should or could be settled via that procedure, notwithstanding consul-
tation with its legal department. On the contrary, the first mention of arbitration
appears in Respondent's brief to me.
In his concurring opinion in Cloverleaf, Board Member Brown expressed the view
that the Board "should not ... automatically dismiss a case because the dispute is
arguably subject to arbitration." In my view, this rule is particularly applicable
where, as here, neither party has ever indicated a desire to submit the dispute to
arbitration.
In addition, there is some doubt whether the Unio._ had the right to file and
prosecute a grievance since the grievance procedure is applicable only to differences
which may "arise between any employee and the Company" and the first step is a
discussion between the employee and his foreman although the union steward "may
be present . . . if requested by the employee." 20 It is also far from clear that an
employee grievance would lead to a determination of the basic dispute since it is
possible that no employee could establish damage caused by any particular contract.
Thus, the one grievance filed was disposed of by the assistant maintenance superin-
tendent on the grounds, inter alia, that no one's job was jeopardized.
More important, however, is the fact that the dispute "involves basically a dispute
over statutory rather than contractual obligations." The disposition of such a con-
troversy is "quite clearly within the competency of the Board, and not of an arbitra-
tor who would be without authority to grant the Union the particular redress it
seeks"; i.e., an order to bargain. Cloverleaf, supra; Smith Cabinet Manufacturing
Company, Inc, 147 NLRB 1506; Tunken Roller Bearing Co. v. N.L.R.B., 325 F. 2d
746 (C.A. 6), cert. denied 376 U.S. 971.
Here, as in Smith Cabinet, the Union's complaint is not directed at any asserted
violation or misapplication on the part of the Company of any provision of the con-
tract. Rather,
it is directed at-and seeks redress for-the denial of a statutory right guaran-
teed by Section 8(d) of the Act, namely, the right of the Union to bargain about
terms and conditions of employment which are not covered by the contract.
[Footnote omitted.] In these circumstances, to dismiss the complaint on the
ground the Board should defer to arbitration procedure would amount to an
abdication of [the Board's] responsibilities under the Act. The Board is not
disabled from resolving an unfair labor practice issue simply because as an inci-
dent thereto it may be necessary to construe a contract to determine whether
the right to take unilateral action has been contractually reserved to management.
Section 10(a) of the Act expressly provides with respect to the Board's power
to prevent unfair labor practices that "[T]his power shall not be affected by any
other means of adjustment that has been or may be established by agreement,
law, or otherwise." 21
F. Respondent's contention that bargaining would be burdensome
Respondent also points out that hundreds of contracts are let each year and that
to require the employer "to bargain over each would involve an enormous waste of
Company and Union time and money." The short answer to this contention is that
the size of the Company and the large amount of work to be done does not relieve
an employer of his obligation to bargain about matters which affect the employees'
terms and conditions of employment.22
10 There is something of an anomaly between Respondent's suggestion that grievances
could be filed and processed during the term of the contract and its contention that it is
not required to bargain for, as the Supreme Court has said, "arbitration of labor disputes
under collective-bargaining agreements is part and parcel of the collective bargaining
process itself." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363
U S 574, 578
20 Cf. Tenneco Oil Co., 40 Labor Arbitration Reports 707; Howell Electric Motors Co., 38
Labor Arbitration Reports 580
21 In the above case, the union filed a grievance which it did not follow through to
arbitiation
22 See J. I. Case Company v. N L.R.B., 253 F. 2d 149, 156 (C.A. 7).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , many of the contracts let are for work which the employees do not
have the skill to perform and in which the Union has disavowed interest . In addi-
tion, it is probable that the Union will not request actual bargaining about every
contract for work which the employees could conceivably do. In other words, there
is no reason to assume that the Union will seek to bargain simply in order to harass
the Company or to interfere with its operations for, as the Company notes , bargain-
ing would involve union, as well as company , time and money. In short, it seems
probable that although the Company would have to notify the Union about a num-
ber of subcontracts , the number about which there would be actual bargaining would
be much smaller than suggested by Respondent 's brief.23 As the court said in
Pacific Coast Association of Pulp and Paper Manufacturers v. N.L.R.B., 304 F. 2d
760, 766 (C.A. 9), I "venture to suggest that [the Company ] get into the water before
[it makes] an irrevocable decision that it is too cold. [It] may find, and not entirely
to [its] surprise , that it is tolerable, or even quite pleasant."
G. Conclusions with respect to Respondent's failure to notify and bargain
with the Union, on request, with respect to individual subcontracts
Respondent's statutory duty to bargain includes the duty to notify the Union and
to bargain with it, on request, before letting subcontracts for work which the Com-
pany's employees could and frequently do perform The fact that the Company has
always subcontracted some work of this type does not excuse it from that duty at
least where, as here, the amount of subcontracting increased substantially after
June 14, 1963, the date on which the bargaining contract was signed.
It has been found that the Union did not waive its right to bargain, that the exist-
ence of a grievance and arbitration procedure does not mean that the instant case
should be dismissed either "automatically" or at all, and that Respondent is not
relieved of its obligation to bargain because bargaining might involve a considerable
amount of time and effort.
It follows, therefore, and I find that Respondent violated Section 8(a)(5) and (1)
of the Act by refusing, in August 1963, the Union's request that it notify and bar-
gain with the Union before letting contracts for work of the type which could have
been, and frequently is, assigned to maintenance (or repair) department employees.
III. REMEDY
I shall recommend that the Company cease and desist from its unlawful conduct
and that it give the Union notice and opportunity to bargain before letting contracts
to outside contractors for work (of a nonemergency nature) which could be and
frequently is performed by its own employees.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Union is and has been at all times material herein the certified bargaining
representative of Respondent 's employees including those working in the maintenance
(or repair ) section.
4. By failing to notify and bargain with the Union before letting subcontracts
for work of the type which could have been and frequently is assigned to its main-
tenance (or repair) department employees, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Accordingly, upon the foregoing findings and conclusions and on the entire record
in this proceeding, I recommend, pursuant to Section 10(c) of the Act, that Respond-
ent Allied Chemical Corporation (National Aniline Division), its officers, agents,
successors , and assigns , shall:
21 If, as Respondent suggests , the Union and/or the employees could file grievances be-
cause of the subcontracts, the time spent in processing them would surely not be substan-
tially less , and might be substantially more, than the time spent in "negotiations" with
the Union.
ALLIED CHEMICAL CORP. (NAT'L ANILINE DIVISION) 733
1. Cease and desist from.
(a) Letting contracts for nonemergency maintenance or repair work at its Ber-
muda Hundred, Virginia, plant without prior notice to, and opportunity for negotia-
tion with, District 50, United Mine Workers of America, Local 13942, where such
contracts cover work of a nature which could be and at times is performed by its
employees in the maintenance (or repair) section who are represented by that Union.
(b) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively with the Company on behalf of the employees in the
bargaining unit.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Notify and, upon request, bargain with the above-named Union with respect
to whether particular contracts will be let for maintenance or repair work at its
Bermuda Hundred, Virginia, plant where such contracts cover work of a nonemer-
gency nature which could be and at times is performed by its employees in the main-
tenance (or repair) section.
(b) Post at its Bermuda Hundred plant, copies of the attached notice marked
"Appendix." 24 Copies of said notice, to be furnished by the Regional Director for
Region 5, shall, after being signed by a representative of the Respondent, be posted
by the Respondent at the Bermuda Hundred plant immediately upon receipt thereof
and be maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in writing, within 20 days from
the date of this Trial Examiner's Decision and Order, what steps the Respondent has
taken to comply herewith 25
24 In the event that the Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order "
25 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT, except in emergencies, let any contracts for maintenance or
repair work at our Bermuda Hundred, Virginia, plant covering work of a nature
which could be and at times is performed by the employees of the maintenance
(or repair) section without giving District 50, United Mine Workers of Amer-
ica, Local 13942, notice of our intention to let such contracts and an oppor-
tunity to bargain with us over the letting of such contracts
WE WILL, upon request, bargain in good faith with the above-named Union
before letting any such contracts.
ALLIED CHEMICAL CORPORATION (NATIONAL ANILINE DIVISION),
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, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. Plaza 2-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.