Superior Coach Corp.

National Labor Relations Board - Board Decisions

Feb 19, 1965

151 N.L.R.B. 188 (N.L.R.B. 1965)

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., Inc., or any other employer, to engage in a strike or refusal
in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services, or threaten
or coerce or restrain Robert R. Wright, Inc., Fremder Electric
Co., Eichler Co., Edward C. C. Reisel Plumbing Company, Boyd
Construction Co., and Morie & Willems Painting & Decorating
Co., Inc., or any other employer, where an object thereof is to
force or require Wright, Fremder, Eichler, Reisel, Boyd, and
Morie, or any other person, to cease doing business with Dreh-
mann-I-Iarrall Undertaking Company.
MISCELLANEOUS DRIVERS AND HELPERS UNION
LOCAL 610, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA,
Labor Organization.
Dated---------------- Bi--------------------------------------
(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, 4459 Federal Building, 1520 Market Street, St. Louis, Mis-
souri, Telephone No. Main 2-4142, if they have any question con-
cerning this notice or compliance with its provisions.
Superior Coach Corporation and International Union , United
Automobile, Aerospace and Agricultural Implement Workers
of America , and its Local 711, AFL-CIO. Case No. 8-CA-3411.
February 19, 1965
DECISION AND ORDER
On August 24, 1964, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed excep-
tions to the Trial Examiner's Decision and briefs in support thereof.
The Respondent filed cross-exceptions and an answering brief.'
I Respondent's request for oral argument is hereby denied as the record, the exceptions,
and the briefs adequately present the issues and the positions of the parties.
151 NLRB No. 24.
SUPERIOR COACH CORPORATION 189
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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
entire record in this case, including the Trial Examiner's Decision,
the exceptions, and the briefs, and hereby adopt the findings,` con-
clusions,3 and recommendations of the Trial Examiner with the
following additions and modifications.
At issue here is whether Respondent violated Section 8(a) (5) of
the Act by failing to bargain with the Union before contracting out
certain work, i.e., the installation of a new wash system, the installa-
tion of a new gas heating system, and general construction work in
Respondent's Mandeville Building. We agree with the Trial Exam-
iner that Respondent did not violate its bargaining obligation.
In Westinghouse Electric Corporation (?Mans field Plant), 150
NLRB 1574, the Board stated that "our condemnation in Fibre-
board and like cases of unilateral subcontracting of unit work was
not intended as laying down a hard and fast new rule to be mechani-
cally applied regardless of the situation involved," and that "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 bargain-
ing agent." The Board also stated that it was pertinent to the issue
before it in that case "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." We believe this observation is equally
pertinent here.
As noted in the Trial Examiner's Decision, the Respondent fol-
lowed it longstanding practice of subcontracting work which pos-
sibly could have been performed by its maintenance employees, but
for the fact that such work would have interfered with their primary
duties and the normal operation of the plant.4 It is apparent from
2 The Thal Examiner designates the local union as Local 460 instead of Local 711 on
page 191 of the Decision ; additionally, the Trial Examiner reports that the contract be-
tween the parties terminates March 27, 1964, instead of March 27, 1965. We hereby
correct these inadvertent errors.
3 In adopting the Trial Examiner ' s conclusions , we do not rely upon the Trial Examiner's
comments relating to the effects of the doctrine enunciated in Fibreboard Paper Products
Corporation, 138 NLRB 550 Nor do we adopt the Trial Examiner's comments with re-
spect to the wisdom of the application of the Fibreboard doctrine by the General Counsel
in this case.
4 In this connection the Trial Examiner found that the number of contracts let by the
Respondent during the past 5 years were as follows' 124 in 1963 , 102 in 1962 ; 196 in
1961 , 313 in 1960 , and 290 in 1959.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record that the Respondent followed this practice for purely
economic reasons, and not because of any desire to undermine or to
avoid dealing with the Union. It is equally apparent that neither
the Respondent's general practice of subcontracting nor the letting
of the contracts at issue here caused any change in the existing
employment terms and conditions of the unit employees. In this
connection, we particularly note that the maintenance force has
remained at a constant level of approximately 27 employees for the
past 5 years, and that none of these employees was terminated or
laid off as a result of the contracting-out of work. Indeed, the rec-
ord shows that during this period the maintenance employees con-
sistently worked overtime. We further note that while the subcon-
tracted work involved the use of skills likewise possessed by the
maintenance employees, in each instance the work was temporary in
nature and not the type normally associated with the Respondent's
day-to-day operation.
In all the circumstances of this case, including Respondent's past
practice, the lack of discriminatory motive, and the absence of sig-
nificant impact upon unit employees or change in their terms and
conditions of employment, we find that Respondent did not violate
the Act as alleged, and, accordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed.
'The General Counsel and the Charging Party contend that production employees on
layoff status could have performed portions of the demolition work at the Mandeville
Avenue Building However, there is no probative evidence in the record indicating that
these employees possessed the skills necessary to perform such work, or that this type of
work was customaiily peformed by the production employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed February 7, 1964, by International Union , United Automobile,
Aerospace and Agricultural Implement Workers of America, and its Local 711, AFL-
CIO,' herein called Local 711 or the UAW, against Superior Coach Corporation,
herein called the Respondent , the General Counsel issued a complaint alleging the
Respondent committed unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act.
The answer of the Respondent denies the commission of unfair labor practices.
This proceeding , with all parties represented , was heard before Trial Examiner
John F. Funke at Lima, Ohio, on June 30, 1964. The parties neither submitted oral
argument nor filed briefs.2
1The name of the Charging Party appears as it was amended at the hearing.
2 All motions upon which decision was reserved at the hearing are disposed of in accord-
ance with the findings of this Decision.
SUPERIOR COACH CORPORATION 191
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation duly organized under and existing by virtue of the laws
of the State of Ohio. Respondent maintains its principal office and place of business
in Lima, Ohio, where it is engaged in the manufacture and distribution of buses and
funeral cars. It annually ships from its Lima, Ohio, plant finished products valued in
excess of $100,000 directly to points outside the State of Ohio.
Respondent is an employer engaged in commerce within the meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
Local 711 is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
The issues in this case are framed largely by the pleadings and the exhibits and, as I
suggested at the hearing , the case might properly have been submitted directly to the
Board by way of stipulation . The complaint alleges three specific instances of failure
on the part of Respondent to bargain with Local 460, the contractual representative of
its employees ,3 regarding the subcontracting of certain work. Paragraph 7 of the
complaint reads as follows:
7. Commencing on or about August 15, 1963, and at all times thereafter,
Respondent did refuse , and continues to refuse , to bargain collectively with the
Union as exclusive collective bargaining representative of all of the employees
in the unit described above in Paragraph 5, in that the Respondent has refused,
and continues to refuse , to bargain with the Union with respect to the contracting
to outside contractors of work of a nature which had been performed , and was
able to be performed , by employees in the unit described above in Paragraph 5,
which work includes , but is not limited to:
(A) the installation of a new wash system;
(B) the installation of a new gas heating system throughout the entire
plant, including piping, welding and electrical work, and the tearing out of
the old heating system including the plumbing , heating and electrical work;
(C) the work in Respondent 's Mandeville Building involving tearing out
of the area formerly occupied by the maintenance department.
The defenses of the Respondent are set forth in paragraphs 4 and 5 of its answer,
which read:
4. The Company admits that it has, except as hereinafter set forth in paragraph
5 (d) hereof , refused to bargain collectively with the Union with respect to the
projects set forth in paragraph 7 (A) (B) (C) of said Complaint but specifically
denies that the maintenance employees have heretofore done work of the scope
and magnitude of the work involved in the three projects outlined in paragraph 7
of said Complaint, though conceding that said maintenance employees have done
work of a similar nature.
5. The Company says that it is not obligated to engage in collective bargaining
with the Union prior to determining , as a matter of business judgment, to let
contracts to independent contractors for the projects involved herein rather than
having the work performed by the maintenance employees , for the following
reasons:
(a) It has been the policy and practice of the Company during its entire
history to determine , as a matter of business judgment, particularly with
reference to the construction of new buildings , new facilities , new equipment
and new installation , whether it is more advisable to have the work per-
formed by outside contractors or by the maintenance crew.
(b) In determining whether to sub-contract the three projects com-
plained of, the Company did give consideration to the question of whether
such work could be done by the maintenance crew without interfering with
the primary function of the maintenance crew, to maintain existing
3 The unit of production and maintenance employees is admittedly appropriate
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machinery, buildings and equipment so that there would be no interruption
of production schedules. It was determined in each of the three instances
involved that it could not be done.
(c) For economic reasons, the Company determined to sub-contract the
three projects involved and decided that it was not good business judgment
to have such work performed by the maintenance crew, which was needed to
do maintenance work on existing equipment in order to maintain produc-
tion; to have had such work done by maintenance employees would have
necesitated the hiring of many additional employees for short periods of
time and then laying them off immediately upon completion of such projects.
(d) The Labor Contract presently in effect contains no restrictions on
the right of the Company to sub-contract. During the negotiations which
culminated in the present contract, the Union insisted on the inclusion of a
clause restricting the Company's right to sub-contract. The Company did
bargain collectively with the Union on this matter but declined to include
any restrictions with reference thereto in such contract.
(e) During the past ten years there have been no layoffs in the Mainte-
nance Department and all maintenance employees have been maintained on
a full time basis. The number of employees in the Maintenance Department
has remained fairly constant at twenty-seven during the past five years.
(f) All maintenance employees have not only been fully employed for a
forty-hour week during the past five years but have, during said period,
worked a substantial number of overtime hours. During this period the
maintenance employees as an entire group, have received, in overtime pay,
the following percentage of total wages: 1959-10.74%, 1960-17.92%,
1961-29%, 1962-26.10%, 1963-22.65%, and four months to May 1,
1964-13%.
(g) The Company says that it determined to sub-contract the three
projects referred to in paragraph number 7 of the Complaint herein for
sound economic and business reasons and that such decision was not moti-
vated to any extent by any unlawful or improper motive or intent to inter-
fere with any of the Union's rights by coercing, interfering or restraining
the maintenance employees in the exercise of their rights, nor is there any
discriminatory result from such decision; no such claim is even asserted by
the Union.
On March 27, 1962, the parties entered into a contract which terminated on
March 27, 1964.4 At the time negotiations leading to the contract were being held
Local 711, according to A. Phillip Treglia, chairman of the bargaining committee, had
presented three grievances relating to the subcontracting of work which normally
would be performed by Respondent's employees. At this time Local 711 submitted
its proposal No. 40 5 which read:
The Company agrees that no maintenance or construction work will be per-
formed in its plant by contractor's labor or other persons not covered by this
agreement , until after the matter has been discussed between the Shop Committee
and the Industrial Relations Director or his designee. The purpose of the fore-
going is to utilize to the fullest , employees covered under this agreement.
The Respondent refused to accept this proposal but Treglia testified that William
Lore, the chief negotiator for Respondent,° told him "The contractors would get the
hell out of the shop as soon as they completed their respective jobs, and in the future
the Company would meet with the Union on problems as they arose." 7 On the basis
of this presumed oral agreement Local 711 dropped the grievances.
4 General Counsel's Exhibit No 2.
5 Respondent's Exhibit No 1, General Counsel's Exhibit No 3.
0 Lore was no longer in the employ of Respondent at the time of the hearing and did
not appear as a witness
7 Respondent objected to the admission of this testimony It was received to show the
position of the parties during negotiations but not to establish, by parol evidence, any
variation from the terms of written agreement. Joe Tomasi, assistant director of
region 2-b, UAW, corroborated this testimony, stating that it was only when the UAW
received assurances that subcontracting would be discussed with the UAW prior to con-
tracting did it withdraw its insistence on proposal and the grievances
SUPERIOR COACH CORPORATION 193
As to the three subcontracts which are the source of dispute herein, it is the con-
tention of the General Counsel and the UAW that Respondent was bound to discuss
the question of subcontracting before the contracts were executed, largely for the
purpose of determining whether any of the work to be subcontracted could have been
performed by either its production 8 or its maintenance employees.9
Respondent's response was that the maintenance department could perform certain
skilled work and that if work of this type could be worked into its schedule during the
slack season it would be performed by the maintenance crew but that if it could not
be worked into the schedule without interfering with production, the work would be
subcontracted. This decision would be made by management without consultation
with the UAW. It does not appear that management ever considered using produc-
tion employees on construction work.
As to the general past and present practice of Respondent with respect to subcon-
tracting, Respondent's Exhibit G summarizes the subcontracting as follows.
Number and Amount of Contracts by Years
1959 1960 1961 1962 1963
Number-------------------------
Amount-------------------------
290
$243,977
313
$276 , 677
196
$1,196,247
102
$244, 033
124
$180, 699
I believe this includes the facts required to reach decision in the case.
B. Conclusions
When the floodgates of Section 8(a) (5) were opened by the Town & Country 10
and Fibreboard 11 decisions the instant case was among those which inundated the
Board with the multifarious subcontracting problems perhaps unwittingly unloosed.
Unlike the Daily Mirror 12 case there is no easy avoidance of the issue since there is
no so-called wrap-up or zipper clause in the contract precluding the Union from the
right to bargain on issues not covered by the contract during its term. It is also
clear, in view of the credited testimony of the union negotiators , that, far from waiving
its claim to the right to be consulted prior to subcontracting , the UAW relinquished
its demand for clause 40 only upon what it understood to be assurances that the
Respondent would negotiate before subcontracting in the future.13
s The General Counsel strenuously contended that the knocking down of walls could
have been performed by production employees in a layoff status. I find none of this
relevant-the issue is whether this was a mandatory subject of collective bargaining assum-
ing production employees could knock down walls.
0 As the maintenance employees , Respondent's Exhibit No. A-1 , indicates that this force
remained rather constant from 1959 through 1964. None of these employees was laid off
while work on the subcontracts was being performed and, according to Respondent ' s testi-
mony , none was laid off during the winter slack season
10 Town & Country Mfg. Co., Inc ., 136 NLRB 1022 , affd. 316 F. 2d 846 (CA. 5).
11 Fibreboard Paper Products Corporation, 138 NLRB 550 , affd. sub nom . East Bay Union
of Machinists, Local 1304 , et at. v. N.LR .B., 322 F. 2d 411 (C.AD.C.), cert. granted 375
U.S. 963
12 New York Mirror, Division of Hearst Corporation, 2-CA-9619 et al, 151 NLRB 834.
13 See The Press Company , Incorporated, 121 NLRB 976 , where the Board held that
there must be a clear and unmistakable waiver of the right to reopen as to issues not
embraced in the contract before they would be removed from the realm of collective
bargaining during the contract term. Cf. Spesdel Corporation, 120 NLRB 733, where
such a waiver was found . No case has come to my attention since Speidel in which such
a waiver has been found although the dissent of Member Fanning in Sohio Chemical Com-
pany, 141 NLRB 810, indicates that he believed the Board was mistakenly applying the
waiver theory . The majority , as I understand it, was holding that the right of the union
to process grievances at an early stage of the procedure was not contained in the contract
grievance clause The union was allowed to participate in later stages so the grievance
machinery adequately protected the union ' s rights. For a thorough analysis of the waiver
issue see Trial Examiner Blake's Decision in Allied Chemical Corporation, 151 NLRB 718.
783-133-66-vol. 151-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An immediate distinction may be found between this case and Town & Country and
Fibreboard for in the case presented the subcontracting did not take over nor encroach
upon the work performed by employees of the employer . This, then, presents a situa-
tion upon which the Board has not passed.14
The instant case may represent the reductio ad absurduin of Fibreboard . It does
indicate the lengths to which the General Counsel is willing to go in an effort to find
violation of the Act when management subcontracts work without negotiation with
the incumbent union . In subcontracting the three jobs to which complaint is directed
Respondent followed a practice it had established of making a unilateral management
decision as to whether it was practical , under the immediate circumstances at the time
of decision , to subcontract the work or to have it performed by its maintenance crew.
There is no evidence from which it may be inferred that Respondent ever contem-
plated using production employees for construction work. There is no evidence and
General Counsel makes no claim that Respondent was at any time motivated by
discrimination within the meaning of the Act by granting subcontracts . These nega-
tives narrow the issue.
The three contracts which the General Counsel has attacked as having been made
in violation of the contractual obligation to bargain are:
38236-1-159-6829-Peterson Construction Co.: General construction
of Mandeville Ave. Bldg_____ _______________________________ $ 175,000.00
30264-1-409-6821-George Koch Sons, Inc.: Convert present bus
washing system to five-stage system ___________________________ 49, 082. 00
38030-1- 159-6828-B . F. Kohli , Inc.: Labor and material for instal-
lation of piping of the new gas heating system_________________ 37, 804. 00
The General Counsel does not contend , if I understand him, that work of such
magnitude could be performed by a maintenance force of some 27 men or that the
maintenance force possessed the skills necessary to complete these contracts . Instead
the contention is advanced that Respondent should have consulted with the UAW
prior to the letting of each contract in order to determine whether or not any of the
heavy physical unskilled labor 15 to be performed could have been performed by its
employees . 16 Whether or not it would have been feasible to eliminate from the con-
tract coverage a job here and a job there following consultation with the UAW is
hardly a decision within the province of the Trial Examiner or the Board. If the
Board is to hold that the Respondent was obligated to bargain in such detail on all
phases of subcontracting it necessarily must hold that he was obligated so to bargain on
each and every subcontract Respondent made. This plainly means that Respondent
was obligated to engage in itemized bargaining respecting 290 subcontracts in 1959,
313 contracts in 1960, 196 contracts in 1961 , 102 contracts in 1962 , and 124 contracts
in 1963. This would, in effect, sentence the Respondent and the UAW to round-the-
clock, round -the-year bargaining . Multiplying this small employer by all the other
employers , small and large, in the land and actual production , maintenance , construc-
tion, and repair might well be subject to prolonged suspension until negotiations
respecting production , maintenance , construction , and repair had been completed
The caseload of the Board would flourish like the green bay tree. Perhaps extremism
in the pursuit of the solution to the problems presented by Fibreboard is not a virtue.
A rational approach to the problem indicates that certain factors should be con-
sidered when the issue of subcontracting has not been immunized from negotiation by
the contract between the parties. Where the subcontract does not encompass or
seriously encroach upon work performed by employees ; where the work to be per-
formed is customarily subcontracted by the employer ; where the work subcontracted
is temporary in nature and does not involve an accretion of work similar to that per-
formed by employees ; where there is an absence of discriminatory motive within the
meaning of the Act; then I would hold the employer is not obligated to bargain with
11 The following cases pending before the Board bear some analogy to each other and to
the instant case in that each represents an extension of the Fibreboard doctrine Shell
Oil Company, 149 NLRB 283 , Shell Oil Company, 149 NLRB 298 ; Westinghouse
Electric Corp ., 153 NLRB No. 33 ; American Oil Company , Issued April 11, 1964; and
Allied Chemical Corporation, supra.
15 There was a great deal of testimony, establishing nothing, respecting the ability of
production workers to use sledgehammers in breaking down walls and of some production
workers to do welding work. It was not shown that any production worker had the skill
necessary to perform any welding that might have been required under any contract
15 The record indicates that some of the maintenance crew worked for a subcontractor
on at least one weekend with the permission of the Respondent.
SHEET METAL WORKERS INT'L ASSOC., LOCAL 162 195
any labor organization which represents his employees . I would substitute a rule
of reason for a doctrinaire approach , for this is an area in which Board policy must
rest on the facts of the particular case.
Upon the basis of the foregoing findings of fact and upon the entire record in this
case , I make the following:
CONCLUSIONS OF LAW
Respondent has not engaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of theAct.17
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
17 The General Counsel asks for a backpay order . Apart from the fact that the employees
for whom such an order would provide are unnumbered and unidentifiable and could not be
ascertained at any stage of the proceeding , I consider the request for backpay for employees
from whom no work was taken and against whom no discrimination is claimed as a
flagrant attempt to abuse the Board 's remedial powers . It is not only punitive, it is
unconscionable.
Sheet Metal Workers International Association , Local 162, AFL-
CIO ; Sheet Metal Workers International Association, Local
150, AFL-CIO; and Sheet Metal Workers International Asso-
ciation , AFL-CIOI and Lusterlite Corporation and United
Brotherhood of Carpenters and Joiners of America , Local 470,
AFL-CIO; Sacramento-Yolo-Amador District Council of Car-
penters, AFL-CIO; and United Brotherhood of Carpenters
and Joiners of America , AFL-CIO. Cases Nos. 0O-CD-120
and 19-CD-87. February 19, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National Labor
Relations Act, as amended, following charges filed by Lusterlite
Corporation, herein called Lusterlite or the Company, alleging that
Sheet Metal Workers International Association, AFL-CIO, and its
Locals 162 and 150, herein respectively called Respondent Interna-
tional, Respondent Local 162, and Respondent Local 150, or collec-
tively Respondents, had violated Section 8(b) (4) (D) of the Act by
inducing and encouraging employees of Lusterlite and its subcon-
tractors to strike, and by coercing and restraining Lusterlite and its
subcontractors for the purpose of forcing or requiring Lusterlite to
assign certain work to employees represented by Respondents rather
than to employees represented by Local 470, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and Sacramento-
1 Since the issues and parties in Cases Nos . 20-CD-120 and 19-•CD-87 are substantially
the same and the disposition of these cases would be facilitated if they are considered to-
gether , we have granted the Charging Party's motion to consolidate these cases for pur-
poses of decision.
151 NLRB No. 21.