The Fafnir Bearing Co.

National Labor Relations Board - Board Decisions

Mar 1, 1965

151 N.L.R.B. 332 (N.L.R.B. 1965)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employee if serving in the Armed Forces
of the United States of his right to full reinstatement upon application 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, 528
Peachtree -Seventh Building, 50 Seventh Street NE., Atlanta , Georgia , Telephone No.
Trinity 6-3311 , Extension 5357, if they have any questions concerning this notice or
compliance with its provisions.
The Fafnir Bearing Company and International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America , Local No. 133, UAW, AFL-CIO . Cases Nos. 1-6'A-
4175,1-4361, and 1-CA-4477. March 1, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Samuel Ross issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed a
brief in support of the Trial Examiner's Decision, and later filed
cross-exceptions, a supporting brief, and an answering brief.
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 [Chairman McCulloch and Members Fanning 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
Trial Examiner's Decision, the exceptions, the briefs, and the
entire record in this case, and hereby adopts the findings, con-
clusions,) and recommendations of the Trial Examiner .2
1 The conclusions of the Trial Examiner are basically in accord with our recent decision
in Westinghouse Electric Corporation ( Mansfield Plant ), 150 NLRB 1574 Of par-
ticular significance in this case is the lack of adverse impact on unit employees of
the contracting out by Respondent
We do not, however, adopt the Trial Examiner 's conclusions as to the significance of
the general management rights clause in the contract . Cf. General Motors Corporation,
Buick Motor Division Part8 Warehouse, 149 NLRB 396 ; Shell Oil Company , 149 NLRB 283.
2 As the record , including the exceptions and briefs , adequately sets forth the issues
and the positions of the parties , the Respondent 's request for oral argument is hereby
denied.
151 NLRB No 40.
THE FAFNIR BEARING COMPANY 333
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 Recommended Order of the Trial Examiner,
and orders that the complaint herein be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on May 6 and October 31, 1963, and February 10, 1964, by
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, Local No. 133, UAW, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board issued a consolidated com-
plaint dated February 7, 1964, and amended on February 18 and March 12, 1964,
against The Fafnir Bearing Company, herein called the Respondent or the Company,
alleging that the Respondent had engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act, by unilaterally subcontracting or contracting out "bargaining unit work" with-
out notification to the Union and without giving the Union an opportunity to discuss
or bargain with the Respondent concerning its decision to do so. The Respondent
filed an answer denying the substantive allegations of the consolidated amended
complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held at Hartford, Connecticut, on April 6, 7,
22, and 23, 1964, before Trial Examiner Samuel Ross. All parties were afforded
full opportunity to be heard, to introduce evidence, to examine and cross-examine
witnesses, to present oral argument, and to file briefs. On May 26, 27, and 28, 1964,
respectively, the Charging Party, the General Counsel, and the Respondent filed
briefs which have been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses and
their demeanor, the Trial Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a Connecticut corporation whose principal office and place of
business is located in New Britain, Connecticut, is engaged in the business of manu-
facturing, selling, and distributing ball bearings and related products. In the opera-
tion of said business, the Respondent annually purchases and receives metals and
other materials valued at more than $50,000 from points and places located outside
the State of Connecticut, and annually ships products valued at more than $50,000
to points and places outside the said State. On the foregoing admitted facts, the
Trial Examiner finds that the Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent's answer admits and the Trial Examiner finds that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General background and collective-bargaining history
The Respondent operates 5 plants in the New Britain, Connecticut, area,I at which
it employs approximately 4,800 to 5,000 employees. About 3,800 of said employees
are in the production and maintenance unit for which the Union had been the
collective-bargaining representative pursuant to Board certification since March
1943.2 Since April 1944, the Respondent and the Union have been parties to suc-
1 One of the five plants is located in nearby Newington, Connecticut. The Respond-
ent also operates plants In West Germany.
2 47 NLRB 278. The Respondent also employs about 220 tool-and-die makers in the
New Britain area who are represented for collective-bargaining purposes by the Interna-
tional Association of Machinists.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cessive collective-bargaining agreements setting forth the terms and conditions of
employment of the employees in the said production and maintenance unit. The
contract which was in effect when the Respondent unilaterally contracted out the
work upon which the complaint in this case is based, had a February 16, 1964, expira-
tion date. Since then, the Union and the Respondent have executed a new collective-
bargaining agreement, effective until February 12, 1967.
B. The issue presented for decision
Between August 1962 and January 1964, without any notice to the Union, the
Respondent unilaterally contracted with outside contractors to perform certain work.
The specific work so contracted consisted of (1) the installation of 316 automatic
sprinklers in various areas of the Company's John Street plant in New Britain; (2)
the painting of the new portion of the sprinkler system at the Company's Newington-
plant; (3) the painting of shop windows, office partitions, ceilings, elevators, and
other areas of the main plant in New Britain; (4) the hanging and wiring of the
electrical fixtures in the fourth floor office of Respondent's main building on Booth
Street; and (5) the mechanical and electrical conversion of 20 Van Norman and
Landis grinding machines from manual to automatic operation. In respect to prac-
tically all of the work so contracted out, it is not disputed that at least some of the
pipefitters, painters, and electricians employed by the Respondent in the maintenance
unit represented by the Union were capable of performing the work involved, and
in the past had done the same or similar work. With one minor exception, no pipe-
fitter, painter, or electrician of the Respondent was in layoff status at the time the
work of his craft was thus contracted out, and none had his hours of work reduced
below his normal schedule as a result of the performance of said work by outside
contractors.
The General Counsel contends that the contracting out of this work without notice
to or bargaining with the Union constitutes a failure to bargain in good faith under
the principles set forth in the Board's decision in Town & Country Manufacturing
Company, Inc., and Town & Country Sales Company, Inc.,3 and its supplemental
decision in Fibreboard Paper Products Corpoiation4 However, he makes no con-
tention that the contracting out of this work was motivated by other than economic
considerations.5
C. Respondent's past practice in respect to contracting out similar work
1. The installation of sprinkler systems
In September 1962, pursuant to the request of its insurance carrier for additional
fire protection, the Respondent, without notice to or bargaining with the Union,
unilaterally contracted with the Grinnell Corporation for the installation of 316,
automatic sprinklers in various areas of the Company's John Street plant in New
Britain. The cost of this work to the Company was $8,800. The work was com-
menced by Grinnell in October 1962 and completed in January 1963.
At the time this job was contracted out, the Respondent employed 22 pipefitters,
in the bargaining unit represented by the Union, a substantial number of whom
admittedly were competent to do the work covered by this contract. However,
when this work was done by Grinnell, there was a substantial backlog of other work
for the Respondent's employees.6 Accordingly, none of Respondent's pipefitters was,
in layoff status when this work was commenced, and none was laid off or had his,
hours of work reduced below his normal schedule as a result of the performance of
this contract.
The Respondent's past practice in respect to the installation of sprinklers has not
been uniform. On some occasions, work of this nature was performed by Respond-
ent's own employees, and on others the work was done by outside contractors.
Thus, the record shows numerous examples, some as far back as 1956 and 1957,
when sprinkler installation work was performed by Respondent's pipefitter employees,
in the bargaining unit, and others where the work was done by outside contractors.-
In no case where the work was given to an outside contractor, did the Respondent
give notice to the Union of its intention to do so, or bargain with the Union regarding
its decision to contract out such work.
$ 136 NLRB 1022.
4138 NLRB 550.
5 No question has been raised by the pleadings regarding the appropriateness of the•
unit represented by the Union.
$ In December 1962 the backlog of work was 3,434 man-hours of work.
THE FAFNIR BEARING COMPANY 335
2. The painting of sprinkler pipes
In January 1963, the Respondent, without notice to or bargaining with the Union,
unilaterally contracted with the John Boyle Company for the painting of the new
portion of the sprinkler system at the Company's Newington plant. The cost of
that contract to the Company was $397. The work was completed on or about Janu-
ary 30, 1963.
At the time this work was performed, the Company employed 10 painters in the
bargaining unit represented by the Union, who admittedly were competent to do the
work which was contracted out to Boyle. However, at that time, the Company had
a large backlog of painting work for its painters Moreover, Ewell Solobodsian,
the maintenance employee who regularly worked in the Newington plant, had
objected to painting the sprinkler system because of its great height (18 feet above
the factory floor), and, in addition, it would have been necessary for the Respondent
to either purchase or rent special staging and ladders for this work. Consequently,
none of Respondent's painters was on layoff status, and none was laid off or had his
hours of work reduced below his normal schedule as a result of the performance of
this contract.
In the past, on some occasions the Respondent's painters had been utilized by it
to paint sprinkler systems, but on other occasions the Respondent had contracted out
the painting of sprinkler systems to outside painting contractors 7 In general, the
Respondent based its decision on whether to utilize its own painters or outside con-
tractors to do such painting work on the availability of its employees for the work.
However, in no case where the work was given to an outside contractor did the
Respondent give notice to the Union of its intention to do so, or bargain with the
Union regarding its decision to contract out such work.
3. General painting
From August 1962 through February 1963, without notice to or bargaining with
the Union, the Respondent entered into various contr, cts with Ideal Paint Company
for the painting of shop windows, office partitions, ceilings, elevators, and other areas
of the Company's main plant in New Britain. The total cost of these contracts to
the Company was $5,295.90.
As previously noted, at the time this painting work was contracted out to Ideal,
the Respondent employed 10 painters in the bargaining unit represented by the
Union. Some of the work so let to Ideal involved the use of multicolor and epoxy
paints, a type of material which the Respondent's painters had never previously used.
Nevertheless, it is not disputed that substantial portions of the work so contracted
out was of the type which Respondent's maintenance painters could perform and
had performed in the past. However, at the time this work was so contracted out,
the Respondent had a considerable backlog of other maintenance painting, and, in
addition, some of the work involved in these contracts to Ideal had to be performed
during periods when the areas to be painted were not occupied. Accordingly, none
of the Company's painters was in layoff status, and none was laid off or had his hours
of work reduced below his normal schedule as a result of the performance of these
contracts.
In the past, the Respondent has frequently contracted out similar painting work
to outside painting contractors.8 As in the case of painting sprinkler pipes, the
Respondent in general, based its decision on whether to utilize its own employees or
outside contractors on the amount and type of painting work which was needed, and
the availability of its employees to do such work. However, in no instance where
the work was given by Respondent to an outside contractor did the Respondent give
notice to the Union of its intention to do so, or bargain with the Union regarding
its decision to contract out such work.
4. The hanging and wiring of electrical fixtures in the fourth floor office
of Respondent's main plant
The Respondent employs 42 first-class maintenance electricians who are in the
bargaining unit represented by the Union. In July 1963, the Company was engaged
in remodeling the fourth floor office of its main building on Booth Street in New
7 The record discloses four instances between 1960 and 1962 on which the Respondent
awarded painting, including sprinkler systems, to outside painting contractors.
'The record discloses seven such examples of general painting work done by outside
contractors between 1960 and 1962.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Britain. This remodeling involved certain electrical work, for which the Respondent
utilized the services of its own maintenance electricians . When the Company shut
down for its annual 2-week vacation period on July 29, all of the electrical work
involved in the fourth floor office had been completed, except for the hanging of
electrical fixtures and the drawing of wires. Without notice to or bargaining with
the Union , during the latter part of the week of July 22, 1963 , the Respondent con-
tracted with Koss Electrical Service, of New Britain, Connecticut , for the completion
of the electrical work in the fourth floor office during the vacation period. The
amount of the contract for the installation of the electrical fixtures and the wiring
was $1,800. The work was done during the vacation period by four employees of
Koss who spent most of the 2 weeks ' vacation period or 313 man-hours to complete
the installation . It is not disputed that Respondent 's electricians were qualified to
perform the work so contracted to Koss.
It is the Respondent 's practice to accomplish as much electrical maintenance work
as possible during its annual vacation shutdown , and to utilize for such work as
many of its own electrical employees as are willing to work during this period. In
conformance with this practice, in late May or early June, all of the bargaining unit
electricians were asked if they desired to work during the vacation period . Only 10
agreed to work and did work during the first week of the vacation shutdown, and
8 during the second week of the vacation . According to the uncontroverted and
credited testimony of Roger F. Amidon, a foreman in Respondent's electrical depart-
ment, if a sufficient number of the Company 's electricians had volunteered to work
during the vacation shutdown , the work contracted to Koss would have been assigned
by Respondent to its own employees . Consequently , at the time the work was per-
formed by Koss, none of the bargaining unit electricians was in layoff status, nor,
after their return from vacation , was any such electrician laid off or had his hours of
employment reduced below his normal work schedule as a result of the performance
of this contract.
In the past, the Respondent frequently has let contracts to outside contractors to
do electrical work, both during vacation shutdowns as well as during regular work-
ing periods .9 In accordance with its general practice , in none of the cases where
the Respondent contracted out electrical work did it notify the Union of its inten-
tion to do so, or offer to bargain or bargain with the Union regarding its decision to
contract out such work.
5. The automation of grinding machines
The Respondent owns and operates approximately 300 bearing grinding machines
of various types, including Van Norman, Landis, and Brown and Sharpe machines.
Several years ago , the Respondent commenced a program to convert at least some of
its grinding machines from manual to automatic operation . The work of converting
the first four prototype Van Norman and Landis machines was performed in the
Respondent 's plant under the supervision of its production engineering department.
The project required both mechanical and electrical work. The mechanical por-
tion was performed by Respondent's tool-and-die workers represented by Interna-
tional Association of Machinists. The electrical work involved was done by main-
tenance department electricians whenever they could spare time from their regular
maintenance work. These electricians designed the electrical circuits necessary to
automate the machines, wired the machines, and when completed prepared sche-
matic drawings or plans for future use in automating additional Van Norman and
Landis grinding machines. The conversion of the four machines took about 2 years.
When completed, the machines were sent to the Respondent's Newington plant and
put into production.
In early January 1964, without notice to or bargaining with the Union, the
Respondent entered into a contract with Eastern Tool & Die Company of Newing-
ton, Connecticut , for the mechanical and electrical conversion by the latter of 20
of Respondent's Van Norman and Landis machines at Eastern's plant. Eastern
undertook to perform this work for $56,620 In addition to the 20 bearing machines
now being automated by Eastern, the Respondent's future plans envisage the like
conversion of 20 to 24 additional Van Norman and Landis machines, and the pos-
sible automation of 24 to 30 smaller bearing machines of a similar type, if that is
concluded to be economically feasible
9 The record discloses eight such contracts for electrical work which were performed
by outside contractors during the period between 1960 and 1962. Testimony offered by
Respondent regarding additional electrical work performed by outside contractors during
earlier vacation shutdowns and nonvacation periods was rejected as cumulative.
THE FAFNIR BEARING COMPANY 337
It is not disputed that Respondent's maintenance electricians, or at least a sub-
stantial number of them, are competent to do the electrical work required to con-
vert the 20 Van Norman and Landis machines to automatic operation. However,
the Respondent decided to let the conversion contract to Eastern Tool & Die,
because: (1) The schedule for completion of the conversion was 12 months and
the Respondent did not have sufficient electrical craftsmen available to do this work
in addition to their regular maintenance functions; (2) the electrical work, which
represents about 30 percent of the entire conversion process, had to be integrated and
coordinated with the mechanical work as the latter progressed, and thus could not
properly be performed separately; and (3) the project was of too great a "magnitude"
to be handled by the Respondent.
On January 10, 1964, about the time the above conversion contract was let to
Eastern Tool & Die, the Respondent laid off one bargaining unit electrician, Pecket.
He was later recalled by the Respondent on February 25, 1964. Another bargaining
unit electrician , Carl Dennis, was transferred on January 27, 1964, from an electrical
job to production work on an automatic screw machine in another department. This
layoff and transfer, according to the uncontroverted and credited testimony of the
Respondent, were part of a concerted effort, commenced in November 1963, to
reduce Respondent's indirect labor and overhead for greater efficiency of operations.
Except for these two employees, there is no evidence that any other electrician
employed by the Respondent was either laid off or had his hours of work reduced
as a consequence of the performance of the contract for the conversion of the Van
Norman and Landis machines.
In respect to conversion of machines to automatic operation, the record of
Respondent's past practice discloses only the following: As previously noted, the
Respondent utilized its own employees for the conversion of the four prototype Van
Norman and Landis machines. In 1963, the Respondent's manufacturing depart-
ment converted five Brown and Sharpe grinders to automatic operation. The
mechanical parts for this conversion was contracted out, but the electrical work was
performed in Respondent's plant by the maintenance electricians in the bargaining
unit represented by the Union. In the fall of 1963, after developmental work per-
formed in the Respondent's manufacturing department, the Company contracted
with the A & M Company of Southbury, Massachusetts, to build 43 honing machines.
To the extent that the above work was performed by outside contractors, the
Respondent, in accordance with its general practice, did not notify the Union of its
intention to contract out the said work or bargain with the Union regarding its deci-
sion to do so.
D. Collective-bargaining provisions regarding contracting-out work
As previously noted, the collective-bargaining contract between the Respondent
and the Union which was in effect when the Respondent unilaterally contracted out
the above-described work had a February 16, 1964, expiration date. The said con-
tract contained no provision which either prohibited the subcontracting or contract-
ing out of work by the Respondent, limited its authority to do so, or required the
Respondent to give prior notice to the Union before subcontracting or contracting
out. To the contrary, the contract contained a broad management-rights clause, as
follows:
ARTICLE III
Management Recognition
3.1 The management of the Company and the direction of the work force,
including, but not limited to, the right to hire, suspend or discharge for proper
cause, or to transfer, the right to relieve employees because of lack of work or
for other legitimate reasons, and the right to determine the extent to which the
plants shall be operated, including the determination of shift schedules, and
the right to change methods or processes or to use new equipment, is reserved
exclusively in the Company, except as specifically abridged or modified by this
agreement.
Admittedly, no proposal regarding subcontracting or limiting subcontracting has
ever been proposed by the Union or discussed by the parties in connection with the
negotiation of any of the collective-bargaining agreements between the Union and
the Respondent.
783-133-66-vol. 151-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Union's single protest regarding the Respondent's contracting practices
Prior to the specific unilateral contracts to outside contractors upon which the
complaint herein is based,10 the Union only once protested the failure of the
Respondent to give it notice or to bargain regarding the decision to contract out the
work." The sole union protest in this regard occurred when Respondent unilater-
ally contracted with the Pattengale Company for the installation of electric light
fixtures in the third floor office in building 19 during the summer vacation shutdown
period in 1962. The Union protested this award of work by Respondent to an out-
side contractor on the ground that unit employees could have done the work by
working overtime. Inter aha, the Union contended that prior notification of the
letting of the outside contract was required by virtue of a past grievance settlement
in 1958, and because the Board had held that subcontracting is a mandatory subject
for negotiation.12 The grievance was denied by Respondent and submitted to arbi-
tration. The arbitrator concluded,13 inter alia, that the 1958 grievance settlement,
which stated that notice would be given to the Union before Respondent contracted
out maintenance work, had not been incorporated in the collective-bargaining agree-
ment as provided therein, and, therefore, was not a part of the agreement of the
parties; that he was restricted to interpretation or application of the terms of the
collective agreement; that notice of subcontracting was not, therefore, required
either by the contract or by said grievance settlement; and finally, that he preferred
to defer to the Board's expertise, whether, as a matter of law, notice and bargaining
was required of Respondent before contracting out. In respect to the substantive
merits of the grievance, the arbitrator concluded.
. that the particular instance of sub-contracting here under protest violated
neither any reasonable construction of the contract's terms or implications nor
any established policy or practice ....
F. The contentions of the parties
As previously noted, the General Counsel and the Charging Union, relying on
the Board's decisions in Town & Country and Fibreboard, supra, contend that the
Respondent, by failing to give notice to and bargain with the Union before contract-
ing out the specific work hereinbefore described, engaged in a refusal to bargain
within the meaning of Section 8(a)(5) of the Act. The General Counsel and the
Union further contend that since the right to prior notice and bargaining before the
Respondent contracts out work did not exist before September '1962, when the
Board issued its supplemental Fibi eboard decision, the Union could not have waived
this right by its failure to protest the Respondent's unilateral contracting practices
before that date. On the other hand, the Respondent, relying on its past custom
and practice of unilaterally contracting out work of the types in question without
notice to or bargaining with the Union, contends that the work involved in the
instant case does not constitute "bargaining unit work" as alleged in the complaint.
G. Concluding findings
The initial question thus presented is whether, as alleged in the complaint, the
specific work in issue herein was "bargaining unit work," since quite obviously, if
it was not such, there could be no requirement that the Respondent notify or bar-
gain with the Union regarding matters outside the scope of its representative interest-
As previously noted, the Union represents, inter alia, the Respondent's mainte-
nance employees, including pipefitters, painters, and electricians. The function of
's In respect to each of the specific unilateral actions of Respondent upon which the
instant complaint is based, the Union has filed grievances with the Respondent, which
the latter has denied. Submission of these grievances to arbitration has been deferred
at the request of the Union.
ll The record discloses several additional union grievances regarding the Respondent's
contracting out of bargaining unit work. However, none of these grievances were
protests over the failure of the Company to give notice to or bargain with the Union
before so contracting, but instead were based on the fact that employees in the unit
were on layoff status, or were not working full time when the unit work was awarded
to outside contractors
12 Quite obviously, this contention was based on the Board 's Town & Country decision,
supra, which issued in April 1962.
13 The arbitrator' s decision was offered by all parties and numbered as General Coun-
sel's Exhibit No. 5.
THE FAFNIR BEARING COMPANY 339
the maintenance department, as the name implies, and as the uncontroverted record
discloses, is "to service the [Company's] buildings and equipment in order to keep
production lines and manufacturing operations going." 14
Viewed in the light of the foregoing, it is quite apparent that at least one of the
jobs contracted out on which the complaint herein is based, the electrical work
required to convert 20 Van Norman and Landis grinding machines to automatic
operation, was not either maintenance work or reasonably could be regarded as
such. As noted above, although some of the Respondent's maintenance electricians
were capable of performing this work, and had done so in connection with a few
prototype machines, they performed the work, not under their regular maintenance
supervisors, but under the direction of the production engineering department to
which they had been loaned whenever they could be spared from their regular main-
tenance duties. The fact that this work was not performed under the supervision of
the maintenance department persuasively indicates that it was not maintenance work.
Moreover, the electrical work involved in this machine conversion project was not
that of maintaining the machines to keep them in proper operating condition, but in
effect was part of the process of manufacturing completely different machines. Thus,
it is quite apparent that the conversion of these machines to automatic operation is
not maintenance work, and, therefore, not within the scope of the bargaining unit
represented by the Union. Accordingly, even apart from other considerations, the
Respondent was not required to notify or bargain with the Union before contract-
ing out this project. It will therefore be recommended that the complaint herein be
dismissed insofar as it is based on the Respondent's unilateral contract to Eastern
Tool & Die to perform the machine conversion work
However, the other four types of work upon which the instant complaint is based,
installing or extending sprinkler systems, painting sprinkler pipes, general painting
(including walls, partitions, and other surfaces), and installing and wiring electric
light fixtures, all clearly appear to be maintenance work. This conclusion finds
strong support in the Respondent's past practice in respect to work of the types
involved. Thus, the Respondent, on a recurring basis, has utilized its maintenance
pipefitters to install or extend sprinkler systems, its maintenance painters to paint
sprinkler pipes and to do general painting including walls, partitions, and other sur-
faces, and its maintenance electricians to install and wire electric light fixtures.
Moreover, the said types of work quite clearly appear to fall within the "service"
functions of the maintenance department as that term was defined by the Respond-
ent's factory manager. Accordingly, it is found that the four types of work described
above was and is maintenance work within the scope of the bargaining unit repre-
sented by the Union.15
The above conclusion, that four of the types of work unilaterally contracted out
by the Respondent was maintenance work customarily although not exclusively per-
formed by employees in the bargaining unit, is not, however, dispositive of the issue
presented for determination herein. It is true, of course, that in the Town & Coun-
try and Fibreboard cases, supra, the Board held that employers who subcontracted
or contracted out unit work without notice to or bargaining with the unions which
represented the employees affected thereby, engaged in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.16 In so holding, the Board said in
Town & Country,
... the elimination of unit jobs, albeit for economic considerations, is a matter
within the statutory phrase "other terms and conditions of employment" and is
14 Respondent's Factory Manager Brodsky so testified
15 Contrary to the Respondent's contention, the mere fact that on occasion, like main-
tenance work also is performed for Respondent by outside contractors, does not require
any contrary conclusion.
16 Section 8(a) (5) of the Act provides as follows:
Sac. 8 (a) It shall be an unfair labor practice for an employer-
s s s s * a t
(5) to refuse to bargain collectively with the representative of his employees,
subject to the provisions of Section 9(a).
Section 9(a) of the Act provides as follows:
Sac. 9. (a) Representatives designated or selected for purposes of collective bargain-
ing by the majority of the employees in a unit appropriate for such purposes, shall be
the exclusive representative of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or
other conditions of employment.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a mandatory subject of collective bargaining within the meaning of Section
8 (a) (5) of the Act.
Referring to its earlier contrary holding in its first Fibreboard decision ,17 the Board
further stated:
Upon reconsideration of the Fibreboard opinion , we are now of the view that
it unduly extends the area within which an employer may curtail or eliminate
entirely job opportunities for its employees without notice to them or negotiation
with their bargaining representative.
However, the principles enunciated in the above cases do not require a holding
that all unilateral subcontracting of unit work per se violates Section 8(a)(5) of the
Act. Since Town & Country and Fibreboard , the Board has had occasion to con-
sider additional cases involving the issue of whether unilateral subcontracting of
such work by employers violates that section . In Shell Oil Company , 18 a case involv-
ing the same question , the Board said:
The principle of these earlier cases [Town & Country and Fibreboard], how-
ever are not meant to be hard and fast rules to be mechanically applied irre-
spective of the circumstances of the case . In applying these principles, we are
mindful that the permissibility of unilateral subcontracting will be determined
by a consideration of the setting of each case .... In short , the principles in
this area are not , nor are they intended to be, inflexibly rigid in application.
A comparison of the setting in which the instant case arises with that in both
Town & Country and Fibreboard discloses substantial differences . In Town &
Country, the employer unilaterally contracted out its entire delivery operations pre-
viously performed by its own employees and terminated the jobs of all the employees
in the delivery unit . In Fibreboard, the employer similarly and unilaterally con-
tracted out all of the maintenance work previously performed by its own mainte-
nance employees and terminated the employment of said employees . Because the
subcontracts in the above cases represented substantial changes in the "conditions of
employment" of the affected employees , the Board concluded that the employers had
a mandatory obligation to notify and bargain with the representative of the employees
before taking final action on whether to contract out the work.
Unlike the said cases , the Respondent 's unilateral contracts of the unit work
involved herein represent no change in the "conditions of employment" of the
employees in the maintenance unit represented by the Union. For many years prior
to letting the specific unilateral contracts in issue herein , the Respondent had con-
tracted out similar occasional maintenance work without notice to or bargaining
with the Union . Notwithstanding the frequency of the Respondent 's such unilateral
subcontracts of occasional maintenance work, concerning which the Union evidently
had knowledge ,19 prior to the issuance of the Board 's Town & Country decision,
the Union never protested the unilateral nature of the Respondent 's contracting-
out practices . 20 Moreover, the Union also never sought to curtail or limit the
continuation of the Respondent 's unilateral subcontracting practices during the nego-
tiations for any of the collective -bargaining agreements between them . Under these
circumstances , it is fairly evident "that Respondent 's frequently invoked practice of
contracting out occasional maintenance work on a uilateral basis . . . had become
an established employment practice and, as such , a term and condition of employ-
ment." 21 Accordingly , in the light of its lack of impact on employment in the
bargaining unit , the Respondent 's action in contracting out, in accordance with its
established practice , the maintenance work in issue herein without prior notice to or
17 130 NLRB 1558.
18 149 NLRB 305
19 Since the maintenance work which was contracted out was performed in the Respond-
ent's plants , in which the Union ' s members , stewards , and other representatives were
employed , it is inconceivable that the Union did not have knowledge thereof That con-
clusion is further supported by the grievances which were filed by the Union and are
either exhibits in the record, or referred to in the stipulation of the parties
20 The contention of the General Counsel and the Union that the failure to protest the
Respondent ' s unilateral contracting -out practices is immaterial , because the Union's right
to notice and bargaining regarding such contracting did not "vest" before the Board's
'Town & Country and Fibreboard decisions , quite obviously has no merit The Union's
sight to prior notice and bargaining , to the extent that it does exist, was not created by
the said decisions , but by Section 8(a) (5) of the Act, which was enacted in 1935, and
by Section 8(d) of the Act , which took effect in 1947.
21 Shell Oil Company, 149 NLRB 283.
UNIVERSITY CLEANING CO. 341
bargaining with the Union , did not represent any change in the terms and conditions
of employment of Respondent 's maintenance employees.
Moreover , the right of Respondent to contract out occasional maintenance work
without notice to or bargaining with the Union appears to be sanctioned by the
collective-bargaining agreement which was in effect when the maintenance work in
issue was subcontracted . Not only did the said agreement contain no provision
prohibiting or limiting subcontracting by Respondent , but it did contain a broad
management-rights clause , reserving exclusively to the Respondent the right to
change its "methods or processes ... to determine the extent to which the plants
shall be operated ," and to transfer employees subject only to such factors as seniority.
In cases involving the same issue presented herein, the Board has held that similar
management-rights clauses in collective -bargaining agreements establish the employ-
er's "managerial perogative" unilaterally to make changes of work assignments in
the bargaining unit and to subcontract unit work without transgressing the bargain-
ing requirements of the Act , when no substantial impairment of the bargaining unit
results.22
Accordingly , for all the foregoing reasons and the lack of impact on unit employ-
ment, it is concluded that the Respondent did not violate Section 8(a)(5) of the
Act by unilaterally contracting out the maintenance unit work in issue herein. It
will therefore be recommended that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent , The Fafnir Bearing Company , is engaged in commerce and
in operations affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the
Act.
2. The Union , International Union , United Automobile , Aerospace and Agricul-
tural Implement Workers of America , Local No. 133, UAW, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. At all times material herein , the Union has been the representative for the
purposes of collective bargaining of a majority of the employees in the following
unit which is appropriate for such purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of Respondent employed at its New
Britain and Newington , Connecticut , plants including setup men, but excluding super -
intendents, foremen and assistant foremen , supervisors, instructors , office and cler-
ical employees , office executives , engineers , office workers and shop clerks, time-
keepers, mailmen , chauffeurs , production clerks, dratsmen , shop engineers and shop,
technicians , plant protection employees , nurses and first-aid employees, firemen, and'
also excluding all tool makers , diemakers , and apprentices , machinists and machin-
ists ' helpers employed in departments 61, N61, J61, and 74 together with all other
employees now in those four departments consisting of tool hardeners , cribmen,
stampcutters , errand boys , inspectors , sweepers , grinders , and spindlemen, as well as
those similarly classified workers employed in department 65.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (5) or ( 1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended than an order issue dismissing the complaint in its entirety.
22 General Motors Corporation (Buick Motor Division Parts Warehouse), 149 NLRB
40; Kenneeott Copper Corporation (Chino Mines Division), 148 NLRB 1653; Shell Oil
Company, 149 NLRB 283.
Local 254, Building Service Employees International Union, AFL-
CIO and Herbert Kletjian , d/b/a University Cleaning Co.
Case No. 1-CC-364. March 1, 1965
DECISION AND ORDER
On September 16, 1963, Trial Examiner Harold X. Summers
issued his Decision in the above-entitled proceeding, finding that
151 NLRB No. 32.