Torrington Industries

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 809 (N.L.R.B. 1992)

809
307 NLRB No. 129
TORRINGTON INDUSTRIES
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 All dates are 1988 unless otherwise indicated.
4 In May the cement blower used to remove cement powder from
the truck to watertight silos broke down and was not replaced.
Thereafter, suppliers provided cement powder to the Respondent’s
facility.
5 The Respondent’s president, Theodore Zoli, testified that the
dump truck was needed at another facility to meet peak-season de-
mand.
6 The record discloses that the Respondent paid Haywood’s living
expenses, including motel accommodations and meals, and travel ex-
penses for the 5-hour commute to his home on the weekends.
7 The judge found that, despite this ostensible offer, Blair was dis-
couraged from driving a ready-mix truck and that none was made
available to him.
8 According to Zoli, Blair’s truck had a state permit to carry a 15-
ton load although the truck’s capacity was far greater, and the Re-
spondent was in the process of applying to the State for an overload
permit to carry the truck’s capacity. In the meantime, however, be-
cause of the limited capacity, Blair was unable to keep up with the
increased demand occasioned by Marshall’s layoff and peak season.
9 The Respondent has not excepted to the judge’s finding that it
violated Sec. 8(a)(5) and (1) by failing to bargain over the effects
of its decisions.
Mid-State Ready Mix, a Division of Torrington In-
dustries, Inc. and Teamsters Local Union No.
182, a/w International Brotherhood of Team-
sters, AFL–CIO.1 Case 3–CA–14517
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On December 22, 1989, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied.
For the reasons stated below, we reject the Respond-
ent’s exceptions to the judge’s findings that the Re-
spondent violated Section 8(a)(5) by the following
conduct: (1) laying off unit employees and replacing
them with a nonunit employee, without first giving the
Union notice and an opportunity to bargain; and (2) re-
fusing to continue contract negotiations unless the
Union agreed to the Respondent’s proposal that the
Union’s job steward be jointly selected by the Union
and the Respondent.
1. The Respondent is engaged in the production and
sale of ready-mix concrete at its Oneida, New York fa-
cility. The Oneida facility, which the Respondent ac-
quired in January 1988,3 is one of nine such plants
owned by the Respondent in the northeastern New
York and Connecticut area. Following an election on
July 8, the Union was certified on July 18, 1988, as
the exclusive bargaining representative of drivers, me-
chanics, and yardmen at the Oneida facility.
The Respondent employed two full-time drivers,
William Marshall and Alton Blair, to haul sand, stone,
and cement powder to the Oneida facility. Marshall
was assigned to drive a 10-wheel dump truck hauling
primarily sand, but some stone. Blair drove a tractor-
trailer truck, also hauling stone, sand, and, until May
of that year, cement powder.4
On July 11, the Respondent laid off Marshall and
transferred the 10-wheel dump truck he had been driv-
ing to one of the Respondent’s other facilities.5 For
nearly 2 weeks after Marshall’s layoff, Blair worked
an extra 10 to 15 hours per week to maintain the
stockpiles. Thereafter, the Respondent transferred a
nonunit employee, Benny Haywood, and the tractor-
trailer truck driven by Haywood, from one of the Re-
spondent’s other plants to haul sand while Blair contin-
ued hauling stone.6
On July 27, the Respondent informed Blair that it
was transferring his truck to another facility and that
he could either take a layoff or drive a ready-mix
truck.7 The Respondent’s president, Theodore Zoli, tes-
tified that it transferred Blair’s truck to another of the
Respondent’s plants8 and that the task of hauling sand,
stone, and cement powder was reassigned to Haywood,
supplemented, as needed, by supplier deliveries of ce-
ment powder and independent contractors hauling sand
and stone. There is no dispute that the Respondent did
not inform the Union of the layoff of either Marshall
or Blair ahead of time, or of its plans to replace them.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) by laying off Marshall and Blair
and replacing them with a nonunit employee and inde-
pendent contractors, because it did not give notice to
the Union of the decisions that led to these actions or
an opportunity for the Union to bargain about the deci-
sions and their effects on the unit employees.9 Noting
that the Respondent regularly transferred vehicles and
drivers and used outside firms to supply its raw mate-
rials, the judge found that the Respondent’s decisions
at issue did not constitute a significant change in the
nature or direction of the business and were thus ame-
nable, as mandatory subjects of bargaining, to the col-
lective-bargaining process.
In finding the alleged violations, the judge relied on
Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), in
which the Court held that
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the replacement of employees in the existing bar-
gaining unit with those of an independent con-
tractor to do the same work under similar condi-
tions of employment—is a statutory subject of
bargaining under Sec. § 8(d).
379 U.S. at 215. In doing so, he also found that be-
cause the Respondent’s decisions did not turn on a
change in the scope, nature, or direction of the busi-
ness and were amenable to collective bargaining, his
conclusion that bargaining was mandated was not in-
consistent with either First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981), or Otis Elevator
Co., 269 NLRB 891 (1984).
The Respondent excepts to the judge’s decision on
the ground that its decisions to lay off Marshall and
Blair were entrepreneurial and did not turn on labor
costs and, thus, are outside the scope of Section 8(d).
We find no merit in the Respondent’s exception.
In Dubuque Packing Co., 303 NLRB 386 (1991),
we recently had occasion to reconsider the tests set
forth in Otis Elevator Co., supra, for determining
whether particular managerial decisions affecting em-
ployees are mandatory subjects of bargaining. With re-
spect to the kind of decision at issue in Dubuque—a
decision to relocate bargaining unit work—we aban-
doned the three distinct tests embraced by the plurality
opinion and two individual Board members in Otis El-
evator, in favor of a burden-shifting test with alter-
native grounds for the employer’s defense after the
General Counsel has made out a prima facie case. We
made clear, however, that that particular burden-shift-
ing test was devised for determining the nature of relo-
cation decisions, and we did not purport to extend it
to other types of management decisions that affect em-
ployees. Id. at 390 fn. 8.
Although that burden-shifting test was therefore not
made applicable to the kind of decision at issue in this
case, our review of Supreme Court precedent, and in
particular our acknowledgement that the Court’s deci-
sion in First National Maintenance had not repudiated
the principles of Fibreboard, is of relevance here. Id.
at 388–390.
We concluded in Dubuque (at 389–390) that the
Fibreboard Court had implicitly engaged in a bal-
ancing of factors before reaching the conclusion that
an employer had a duty to bargain over the kind of
subcontracting decision at issue there. As Justice Stew-
art explained the holding in his concurring opinion,
397 U.S. at 224, ‘‘all that is involved is the substi-
tution of one group of workers for another to perform
the same work at the same plant under the ultimate
control of the same employer.’’ Fibreboard, supra, 379
U.S. at 218. Such decisions, as the Court in First Na-
tional Maintenance agreed, do not involve ‘‘a change
in the scope and direction of the enterprise’’ and thus
are not core entrepreneurial decisions which are be-
yond the scope of the bargaining obligation defined in
the Act. 452 U.S. at 677, citing Fibreboard, 379 U.S.
at 223 (Stewart, J., concurring). Thus, when the record
shows that essentially that kind of subcontracting is in-
volved, there is no need to apply any further tests in
order to determine whether the decision is subject to
the statutory duty to bargain. The Supreme Court has
already determined that it is. See also First National
Maintenance, supra, 452 U.S. at 687–688 (emphasizing
that the decision at issue there involved discharging
employees without replacing them).
We believe, for the reasons stated below, that, with
the possible exception of one factor, we are presented
with what may be termed ‘‘Fibreboard subcontract-
ing’’ here. The Respondent, points out, however, that
in Fibreboard the Supreme Court had referred to labor
costs as a factor in the subcontracting decision at issue
there. The Respondent argues that labor costs were not
a factor in its decision here and contends that, for that
reason, Fibreboard is inapplicable. We agree that there
may be cases in which the nonlabor-cost reason for
subcontracting may provide a basis for concluding that
the decision to subcontract is not a mandatory subject
of bargaining. We do not reach that issue here, how-
ever, because the Respondent’s reasons had nothing to
do with a change in the ‘‘scope and direction’’ of its
business. Those reasons, thus, were not matters of core
entrepreneurial concern and outside the scope of bar-
gaining. First National Maintenance, supra at 677.
First, it is clear that employees Blair and Marshall
were simply replaced and that their discharge was thus
not the result of an elimination of the type of work
they performed. The Respondent continued to prepare
ready-mix concrete at the Oneida facility with the
same raw materials as it had prior to the layoffs. It did
not, for example, close down its Oneida operation. Cf.
First National Maintenance Corp. v. NLRB, supra.
Rather, it simply replaced the two employees hauling
sand and stone with a nonunit employee and inde-
pendent contractors, also hauling sand and stone.
Second, the Respondent has not shown that the rea-
sons it gave for the layoffs and subsequent reallocation
of the work to others involve entrepreneurial decisions
that are outside the range of bargaining or decisions
dictated by emergencies that render bargaining imprac-
tical. The Respondent argues that its decisions to lay
off Marshall and Blair were ‘‘caused by the seasonal
nature of [its] business and a mechanical breakdown.’’
We are not persuaded by this argument. Although the
seasonal nature of the Respondent’s business may ex-
plain its decision to transfer Marshall’s truck to an-
other of its facilities, the decision at issue is not the
transfer of the trucks, but the replacement of employ-
ees. An increase in workload does not logically require
a decrease in the number of workers to perform the
work. The seasonal nature of the business may require
811TORRINGTON INDUSTRIES
10 In this case, the ‘‘need’’ for the additional help may have arisen
as much from the Respondent’s layoff of Marshall as from the in-
creased seasonal demand.
11 Respondent’s president Zoli testified that the cement blower
broke down sometime in May and that, thereafter, the cement pow-
der was delivered to the facility.
12 The ready-mix truck Blair requested was being operated on a
part-time basis by a trainee.
13 Our concurring colleague argues that this case is factually distin-
guishable from Fibreboard because ‘‘[v]ehicles were transferred;
employees of the Respondent were transferred; employees of the Re-
spondent were given new job assignments.’’ We disagree. The fact
that the Respondent made certain tangential decisions—like transfer-
ring trucks—is immaterial because those decisions are not at issue
in this case and, as we have noted above, would not necessarily be
affected by bargaining over the question whether the two drivers
could still perform the work. That the Respondent replaced Marshall
and Blair with a combination of outside subcontractors and its own
transferred and reassigned nonunit employees, is also a distinction
without a difference. The fact remains that in this case, as in
Fibreboard, the Respondent replaced unit employees with nonunit
employees to do the same job.
14 This could be considered a ‘‘labor cost’’ matter in a broad sense
of the term, and to that extent we have made a finding that labor
costs are involved. We do not, however, see the usefulness of the
Dubuque ‘‘labor cost concession’’ test in cases involving decisions
that, unlike the plant relocation decision at issue in Dubuque, are not
likely to be entwined with changes in the operation of the enterprise
that go well beyond merely the replacement of one set of employees
doing work by another set of employees.
that outside contractors be employed to haul additional
stockpiles beyond that hauling which its own employ-
ees can perform, but this possibility does not entitle
the Respondent to lay off unit employees and replace
them with nonunit employees or independent contrac-
tors without bargaining with the collective-bargaining
representative.10 Nor does the fact that the Respond-
ent’s cement blower broke down in May provide a rea-
son for the Respondent’s layoff of Blair in late July.11
Blair continued to haul sand and stone until his layoff,
working overtime during the period after Marshall’s
layoff. We therefore agree with the judge that the
breakdown of the cement blower was not a factor in
Blair’s layoff.
Similarly, the reason given to Blair and advanced by
the Respondent’s president Zoli at the hearing—that
Blair’s tractor did not not have a state permit to carry
capacity—may explain the reason it transferred the
truck, but it does not explain Blair’s layoff. The Re-
spondent offered no explanation why it transferred the
truck and the driver to the Oneida facility rather than
let Blair drive the new truck, a result which ultimately
occurred when the Respondent recalled Marshall in
November. Nor does it explain why the Respondent
would not put Blair on the ready-mix truck he re-
quested.12 Finally, the Respondent’s claim that Mar-
shall’s layoff was necessary because his arthritic condi-
tion prevents him from operating many vehicles has
nothing to do with core entreprenurial considerations.
In any event, it was refuted by Marshall at the hearing
and by the fact that he had operated both a dump truck
and a ready-mix truck during the 2 years he had been
employed at the Oneida facility.
In examining the Respondent’s proffered reasons,
we do not suggest that the Respondent was acting for
unlawful motives or that it was not free to layoff these
two employees. We simply find that the Respondent
has not shown that its decision to replace them through
subcontracting was dictated by any core entrepre-
neurial reasons. No substantial commitment of capital
or change in the scope of the business would be in-
volved in negotiating with the Union over, for exam-
ple, transferring the truck, but not the driver, or mak-
ing a ready-mix truck available to Marshall and Blair.
Thus, whether or not the Respondent’s decision to re-
place them with nonunit personnel was motivated by
labor costs in the strictest sense of that term, the fact
remains that the decision clearly involved unit employ-
ees’ terms of employment and it did not ‘‘lie at the
core of entrepreneurial control.’’ Fibreboard, supra,
379 U.S. at 223 (Stewart, J., concurring).
Contrary to our concurring colleague, we are not
fashioning a per se rule that any subcontracting deci-
sion that does not involve a significant change in scope
and direction of the enterprise is a mandatory subject
of bargaining. As noted above, we are dealing with
only those cases, factually similar to Fibreboard, in
which virtually all that is changed through the subcon-
tracting is the identity of the employees doing the
work.13 In such cases we see no need to reinvent the
wheel by rebalancing the factors weighing for and
against a finding that the decision is subject to the bar-
gaining obligation. Of course, in determining that the
Respondent’s reasons for subcontracting were not en-
trepreneurial decisions affecting change in scope and
direction of the enterprise, we have considered a factor
which our colleague appears to be addressing under his
separate amenability-to-bargaining test. We have noted
that, even assuming that choice of equipment for the
work was for the Respondent to determine, the ques-
tion of whether Blair and Marshall were capable of ef-
ficiently operating the new trucks was a reasonable
topic for bargaining about with the Union that rep-
resented the two employees.14 Accordingly, although
we may not have considered the facts under the same
labels as our colleague, we believe that in determining
that this is essentially Fibreboard subcontracting and
therefore a mandatory subject of bargaining, we have
kept faith with Fibreboard as reaffirmed in First Na-
tional Maintenance.
Accordingly, we find that the Respondent had a duty
to provide notice to and bargain on request with the
Union concerning its decisions to lay off Marshall and
Blair and replace them with nonbargaining unit em-
ployees and independent contractors. Because the Re-
spondent failed to provide the Union with that notice,
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I join my colleagues in affirming the judge’s finding that the Re-
spondent also violated Sec. 8(a)(5) by refusing to meet and negotiate
with the Union unless the Union agreed to joint employer-union se-
lection of the Union’s job steward.
2 These decisions have a direct impact on employment but have as
their focus the economic profitability of the employing enterprise.
FNM, supra, 452 U.S. at 677.
we affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(5) and (1). We shall modify the
Order to conform to our findings.
2. The Respondent makes essentially three argu-
ments in its attack on the judge’s finding that it vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
meet and negotiate unless the Union agreed to joint
employer-union selection of the Union’s job steward.
We find no merit to any of them.
First, we disagree with the Respondent’s contention
that the judge erred in declining to dismiss this allega-
tion on the basis of Good GMC, Inc., 267 NLRB 583
(1983), and Nordstrom, Inc., 229 NLRB 601 (1977).
We agree with the judge that those cases are inap-
posite. There the Board found that the employers had
not violated Section 8(a)(5) by refusing to execute con-
tracts where the unions agreed only to the mandatory
subjects of the employers’ offers. The Board reasoned
that the employers’ offers on those subjects would be
different depending on changes in the resolution of the
nonmandatory subject. Standing alone, the packages of
mandatory subjects did not represent the employers’
agreements. By contrast, the Respondent here refused
to bargain at all so long as the Union refused to agree
to the Respondent’s position on a nonmandatory sub-
ject.
Second, the Respondent contends that its position
was justified because the Union’s steward proposal had
cost aspects (use of worktime to process grievances)
and was therefore a mandatory subject. This argument
lacks merit because the Respondent did not, in declin-
ing to bargain, single out the cost aspect as the source
of its objection. It was plainly insisting on intruding
into the Union’s choice of grievance representative. As
explained in Missouri Portland Cement Co., 284
NLRB 432, 434 fn. 13 (1987), the fact that proposals
on union grievance representatives may have manda-
tory aspects does not make the identity of the rep-
resentative a matter on which the employer has any
right to insist.
Finally, the Respondent reiterates the contention it
made to the judge that the complaint allegation relating
to the steward proposal should have been dismissed on
the ground that the Respondent withdrew its steward-
selection proposal on October 18 without qualification.
We find no merit to this. The violation occurred upon
the Respondent’s unlawful act of conditioning further
bargaining on the Union’s agreement to the Respond-
ent’s proposal. It is immaterial that the Respondent
withdrew its proposal nearly 2-1/2 months after it was
proposed and after the Union had filed the unfair labor
practice charge.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mid-
State Ready Mix, A Division of Torrington Industries,
Inc., Oneida, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Cancel, withdraw, and rescind the layoff of
unit employees and the transfer of the work of hauling
cement, sand, and stone previously performed by em-
ployees employed at its Oneida, New York facility
who are represented by the Union to other employees
who are not so represented and notify and on request
bargain with the Union with respect to the subcon-
tracting out of any such work.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER RAUDABAUGH, concurring.
I concur in my colleagues’ finding that the Respond-
ent violated Section 8(a)(5) by failing to bargain about
its decisions to lay off two unit employees and to as-
sign their work to a nonunit employee and independent
contractors.1 I disagree, however, with their failure to
apply the test of Dubuque Packing Co., 303 NLRB
386 (1991), to resolve the issue of whether the deci-
sions in dispute involved a mandatory subject of bar-
gaining. The majority has erroneously imposed an in-
flexible rule on a broad variety of employer subcon-
tracting decisions that do not involve a change in the
scope or direction of the employer’s enterprise. The
majority says that the decision to engage in such sub-
contracting is a mandatory bargaining subject, even if
labor costs do not influence the decision and even if
labor cost concessions could not change the decision.
I disagree. To apply such a flat rule would require bar-
gaining even where the decision is not amenable to the
collective-bargaining process. This is directly contrary
to Supreme Court precedent.
In First National Maintenance Corp. v. NLRB
(FNM), 452 U.S. 666 (1981), the Court said that bar-
gaining over a certain category of management deci-
sions2 would be required only if the potential benefits
of bargaining would outweigh the burdens that bar-
gaining would place on the business. The Court said
that this balancing test was implicitly applied in
Fibreboard Corp. v. NLRB, 379 U.S. 203 (1984), to
find that the subcontracting there was a mandatory
subject of bargaining. That is, in Fibreboard, the sub-
contracting was motivated by labor cost considerations
and hence the subcontracting was particularly ame-
813TORRINGTON INDUSTRIES
3 303 NLRB 386, at 391.
4 In a case presenting facts identical to those in Fibreboard, appli-
cation of the Dubuque test would lead to the identical conclusion
that the employer’s subcontracting decision was a mandatory bar-
gaining subject. That is, (1) the case involved ‘‘the substitution of
one group of workers for another to perform the same task in the
same plant under the ultimate control of the same employer,’’ and
thus, prima facie, is not ‘‘a basic change in the nature of the em-
ployer’s operation’’; (2) the employer failed to rebut this evidence
or to probe that labor costs were not a factor; and (3) there was no
showing that the Union could not have offered labor cost conces-
sions that could have changed the decision to subcontract.
5 My colleagues seek to separate these matters from the decision
to replace the unit employees. In my view, a determination of
whether a particular decision is a mandatory subject should take into
account the larger context in which the decision is made.
6 My colleagues ‘‘have noted’’ that the Respondent’s decision was
‘‘a reasonable topic for bargaining.’’ However, they fail to make
‘‘amenability to bargaining’’ an essential part of the test. In my
view, amenability to bargaining derives from that part of FNM
which weighs the potential benefits of bargaining, and the ‘‘labor
cost’’ portion of the Dubuque test is a way of measuring amenability
to bargaining. That is, to the extent that a decision is motivated by
labor costs, that decision is amenable to bargaining. And, to the ex-
tent that the decision is amenable to bargaining, there is a benefit
to be derived in subjecting it to the bargaining process.
nable to the bargaining process. As to the other side
of the balance, the subcontracting there did not involve
a change in the scope or direction of the business, and
thus a bargaining requirement would not burden the
employer’s enterpreneurial freedom to run the enter-
prise.
Contrary to FNM and Fibreboard, the majority here
turns a two-factor test into a one-factor test. These two
Supreme Court decisions stressed extent of entrepre-
neurial change and amenability to bargaining. The ma-
jority here says that if the entrepreneurial change is
slight, that is the end of the matter. That is, if the sub-
contracting decision does not involve a significant en-
trepreneurial change, it is per se a mandatory subject
of bargaining. Clearly, however, the Supreme Court re-
quires another step in the inquiry, viz., whether the de-
cision is amenable to bargaining. If the decision is not
amenable to the bargaining process, the potential ad-
vantages to bargaining would not outweigh the burdens
that bargaining would place on the enterprise, even if
those burdens are slight. Phrased differently, there is
no point in requiring bargaining where such bargaining
can have no meaningful result other than to delay the
effectuation of the employer’s decision.
The difficulties presented by the majority’s approach
can be avoided by the application of the Board’s rule
in Dubuque. In that case, the Board announced the fol-
lowing test for determining whether an employer’s
economically motivated decision to relocate unit work
is a mandatory subject of bargaining:
Initially, the burden is on the General Counsel to
establish that the employer’s decision involved a
relocation of unit work unaccompanied by a basic
change in the nature of the employer’s operation.
If the General Counsel successfully carries his
burden in this regard, he will have established
prima facie that the employer’s relocation deci-
sion is a mandatory subject of bargaining. At this
juncture, the employer may produce evidence re-
butting the prima facie case by establishing that
the work performed at the new location varies sig-
nificantly from the work performed at the former
plant, establishing that the work performed at the
former plant is to be discontinued entirely and not
moved to the new location, or establishing that
the employer’s decision involves a change in the
scope and direction of the enterprise. Alter-
natively, the employer may proffer a defense to
show by a preponderance of the evidence: (1) that
labor costs (direct and/or indirect) were not a fac-
tor in the decision or (2) that even if labor costs
were a factor in the decision, the union could not
have offered labor cost concessions that could
have changed the employer’s decision to relo-
cate.3
Thus, the Dubuque approach takes into consideration
entrepreneurial prerogatives and amenability to bar-
gaining. Further, the Dubuque approach is not a test
that is new and different from FNM and Fibreboard.
Rather, it is based squarely on these cases. It is a bur-
den-of-proof mechanism for applying the balancing
test of FNM. In addition, the application of Dubuque
eliminates the confusion of having a different test for
subcontracting decisions. Finally, the Supreme Court
said in FNM that the balancing test set forth therein
was implicitly used in Fibreboard, a subcontracting
case. Because the Dubuque approach is a mechanism
for applying that balancing test, it is clear that the Du-
buque approach should be used in subcontracting
cases.4
My colleagues argue that the instant case is essen-
tially a Fibreboard case and thus there is no need to
‘‘reinvent the wheel’’ by applying the Dubuque test.
They use the term ‘‘Fibreboard’’ to refer to those
cases ‘‘in which virtually all that is changed through
the subcontracting is the identity of the employees
doing the work.’’ The instant case shows the danger
of using a label to decide a case. This case involves
more than ‘‘Fibreboard’’ as defined by my colleagues.
Vehicles were transferred; employees of the Respond-
ent were transferred; and employees of the Respondent
were given new job assignments.5 None of this was
true in Fibreboard. In these circumstances, I would not
simply utter ‘‘Fibreboard’’ and let that decide the
case. Rather, I would apply the test of Dubuque, a test
which considers and weighs all relevant factors.6
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Contrary to the Respondent, the May breakdown of a cement
blower seems to have been no factor at all in the subsequent chal-
lenged decisions. Unit employees Marshall and Blair continued to
work for at least a month after this breakdown.
Based on the above, I would apply Dubuque here
and I now proceed to do so. In the present case, the
General Counsel has presented sufficient proof, which
the Respondent has failed to rebut, that the decisions
of the Respondent, which resulted in the replacement
of unit employees Marshall and Blair by a nonunit em-
ployee and by independent contractors, did not involve
any basic change in the nature of the Respondent’s op-
eration. The Respondent merely used different workers
to haul the same raw materials to the same ready-mix
concrete facility in Oneida. Furthermore, the Respond-
ent has not shown that labor costs were not a factor
in its challenged decisions. The need to transfer Mar-
shall’s truck to another facility, the failure to secure an
overload hauling permit for Blair’s truck, and nonunit
employee Haywood’s receipt of living expenses and a
higher rate of pay do not prove that labor costs were
not a factor.7 This is particularly so with respect to the
decision to use independent contractors to perform at
least some of the work previously performed by the
laid-off unit employees. Finally, Respondent had not
establishd that the Union could not have offered labor
cost concessions that could have changed the decisions
involved here. In sum, I disagree with the majority’s
analysis of the Respondent’s obligation to bargain
about its decisions here, although I concur in the con-
clusion that the Respondent’s failure to bargain vio-
lated Section 8(a)(5).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Teamsters Local Union No. 182, a/w International
Brotherhood of Teamsters, AFL–CIO as the exclusive
representative of our employees in the following unit
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment:
All full-time and regular part-time drivers, me-
chanics and yardmen employed by the Employer
at its Oneida, New York facility, excluding all of-
fice clerical employees, confidential employees,
professional employees, guards and supervisors as
defined in the Act.
WE WILL NOT lay off unit employees; transfer the
work of hauling cement, sand, and stone previously
performed by employees employed at our Oneida, New
York facility, who are in the bargaining unit described
above and represented by the Union to other employ-
ees who are not in the unit and not represented by the
Union; subcontract out such work, or change any other
terms or conditions of employment of employees in the
above-described unit without first notifying the Union
and affording it an opportunity to bargain about such
change.
WE WILL NOT bargain to impasse and refuse to meet
and negotiate with the Union unless the Union agrees
to joint selection of its job steward and our right to re-
move the steward after 1 year on 30 days’ notice to
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
WE WILL, on request, bargain with the Union con-
cerning the wages, hours, and other terms and condi-
tions of employment of the employees in the unit set
forth above.
WE WILL cancel, withdraw, and rescind the layoff of
unit employees and the transfer of the work of hauling
cement, sand, and stone previously performed by em-
ployees employed at our Oneida, New York facility
who are represented by the Union to other employees
who are not so represented and notify and on request
bargain with the Union with respect to the subcon-
tracting out of any such work.
WE WILL offer to employees William Marshall and
Alton Blair, if we have not already done so, immediate
and full reinstatement to their former positions or, if
they no longer exist, to substantially equivalent ones
without prejudice to their seniority or other rights and
privileges.
WE WILL make whole William Marshall and Alton
Blair for any loss of earnings suffered as a result of
their unlawful layoffs, with interest.
MID-STATE READY MIX, A DIVISION OF
TORRINGTON INDUSTRIES, INC.
Alfred M. Norek, Esq., for the General Counsel.
Robert H. Basso, Esq. (Bryant, O’Dell & Basso), of Syra-
cuse, New York, for the Respondent.
Frederick W. Murad, Esq. (Murad & Murad), of Utica, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. The hear-
ing in this case was held on January 9, 1989, on a complaint
and notice of hearing which issued on September 21, 1988.
The complaint alleges that Mid-State Ready Mix, A Division
of Torrington Industries, Inc. (Respondent or Mid-State), by
815TORRINGTON INDUSTRIES
1 All dates herein are in 1988 unless otherwise indicated.
laying off two employees and subcontracting certain unit
work without prior notice or an opportunity to bargain about
these acts or their effects being provided to the Charging
Union as exclusive representative of Respondent’s employees
in the appropriate unit, and, further, by bargaining to impasse
and refusing to meet and negotiate with the Union unless the
Union agreed to joint selection of the Union’s job steward
and its right to remove the steward on notice, committed vio-
lations of Section 8(a)(1) and (5) of the Act. By answer
dated October 3, 1988, Respondent denied the conclusionary
allegations of the complaint and interposed certain affirma-
tive defenses, among them that the transaction at issue was
entrepreneurial in nature not subject to the bargaining obliga-
tion, that it was consistent with the past practices of the Re-
spondent, that the Union waived its right, if any, to bargain
over the transaction, and that Respondent has at all times
been ready and willing to bargain over the effects of the
transaction. Following close of hearing, briefs were filed on
behalf of the General Counsel and the Respondent.
On the entire record in this proceeding, including consider-
ation of the briefs filed on behalf of the parties, and after
close observation of the witnesses and their demeanor while
testifying, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a Connecticut corporation engaged in the
production and sale of ready-mix concrete with its principal
office and place of business located in Glens Falls, New
York, and a place of business located at 306 East Walnut
Street in Oneida, New York (the Oneida facility). During the
12-month period preceding issuance of the complaint, Re-
spondent derived gross revenues in excess of $50,000, of
which an amount in excess of $50,000 was derived from
sales directly outside the State of New York. The complaint
alleges, Respondent admits, and I find that it is, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, the answer admits, and I find that
Teamsters Local Union No. 182, a/w International Brother-
hood of Teamsters, AFL–CIO (Local 182 or Union), and has
been at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union’s Status as Exclusive Bargaining
Representative
Following a secret ballot election conducted on July 8,
1988,1 under the supervision of the Regional Director for Re-
gion 3 of the National Labor Relations Board in Case 3–RC–
9248, in which the Union secured a majority of the votes,
the Union was certified on July 18, 1988, as the exclusive
collective-bargaining representative of Respondent’s employ-
ees in a unit of all full-time and regular part-time drivers,
mechanics, and yardmen employed at its Oneida, New York
facility. The unit comprised approximately 10 employees.
The complaint alleges, Respondent admits, and I find that
these employees constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
B. The Positions of the Parties on the Article Relating
to Job Steward
The first bargaining session was held on July 15, 1988, at
the Union’s offices. Appearing for Respondent were Theo-
dore Zoli, president, Joseph Dubey, vice president, and Bill
Ward, area manager of Respondent’s ready-mix plants.
Present for the Union were Frank Parks, Local 182 vice
president and longstanding business agent, and Doug Wilson,
another Local 182 business agent. At this and all succeeding
sessions, Zoli and Parks were the chief spokesmen for their
respective sides. The following recital is based on Parks’
uncontroverted testimony. Each party presented the other
with a set of bargaining proposals. The Union’s was the
areawide ready-mix contract which it then had in effect with
other companies. The particular contract tendered was one
running from March 1, 1985, for 3 years with N. D. Peters
Co., Inc., a local ready-mix employer. Article III seniority
provided, inter alia, in subparagraph 1, ‘‘The principle of se-
niority shall prevail at all times,’’ and in subparagraph 2,
‘‘Any employee granted a leave of absence shall retain his
seniority rating providing he does not work at the craft. Lay-
off due to seasonable reasons shall not terminate the employ-
ees’ seniority,’’ and in subparagraph 6, ‘‘Seniority roster
shall be posted as of May 1st annually.’’ Article IV, subpara-
graph 5, provided for the Local’s appointment of a steward
whose duties shall not conflict with his duties to the Em-
ployer. The subparagraph also provided for the Employer to
take up the matter with local officers before discharging the
steward and for a duty of every foreman to cooperate with
the steward on enforcing union as well as company rules.
Article V, grievance and arbitration procedures, provides, in
section 2 that ‘‘Any Shop Steward shall be permitted to
leave his or her work to investigate and adjust the grievance
of any employee within his jurisdiction, after notification to
his Supervisor. Employees shall have the Shop Steward or a
representative of the Union present during the discussion of
any grievance with representative of the company.’’
Mid-State presented a proposed agreement, which, at arti-
cle 2, provided as follows:
Article 2: Job Stewards
2.1: Stewards shall be mutually agreed upon by the
Employer and the Union, and shall serve for a period
of not less than one (1) year. After one (1) year, either
the Employer or the Union can cause the removal of
the steward within 30 days after serving a written no-
tice on the other party of the desire to have a new stew-
ard appointed.
Each side agreed to review the other’s proposal and to
meet again on July 26. On July 26 again at the Union’s of-
fices, the parties reviewed the proposals. Parks agreed to
work from Mid-State’s submission. When they come to arti-
cle 2, Parks and the Union couldn’t agree to that language.
He added that he felt the language was illegal. Zoli dis-
agreed. Each agreed to check with their attorneys before the
next meeting. During the meeting, which lasted about an
hour, Zoli stated he was dead set against the Union’s senior-
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ity clause. Although there is no indication that Zoli at this
meeting referred specifically to a so-called management-
rights provision contained in Respondent’s submission, my
attention has since been drawn to paragraph 1.4 of article I:
Union Security which provided that ‘‘The Union recognizes
that the responsibility of management of the working forces,
including the right to hire, transfer, lay-off, discipline or dis-
charge, and the maintaining of order and efficiency is vested
exclusively in the employer.’’
At the third session, held on August 3, also at the Union’s
offices, Zoli first stated he had made a few changes in the
agreement, mentioning one in which he had agreed to the
Union’s proposal regarding protection to be accorded em-
ployees who honor a picket line. Zoli then said, ‘‘I’ve got
a real hang-up on this steward language and seniority clause
in the contract and either we have to agree with that or we
have nothing else to talk about.’’ Parks replied he could not
agree that the Company had a mutual right to pick or dis-
charge the Union’s steward and agreed they had nothing else
to talk about. Zoli rose to leave, stating that ‘‘[I]t’s in your
ballpark now, do whatever you want to do.’’ The meeting
had lasted about 10 minutes. No further meeting was dis-
cussed or scheduled. On direct examination, Zoli was not
asked and so did not respond to the statement attributed to
him by Parks insisting on the Respondent’s steward language
as the price of continued negotiations. Zoli’s unsure recollec-
tion was that by the August 3 meeting he had learned that
the steward language the Respondent had proposed ‘‘was not
a good framing of that kind of language and there was some
conversation between counsel and us.’’ (Tr. 121.) During his
cross-examination, Zoli confirmed the language was with-
drawn at a later date. See infra at 5.
By letter dated August 18, addressed to Zoli, Frederick W.
Murad, the Union’s counsel, stated, inter alia, ‘‘that the
Union stands ready to return to the bargaining table in order
to negotiate the terms of a collective bargaining agreement
including seniority rights. However, the issue as to the selec-
tion of union stewards is an intra-union matter outside the
scope of collective bargaining.’’ Robert H. Bosso, counsel
for Respondent, in a responsive letter to Murad, dated Sep-
tember 13, made no reference to the Respondent’s demand
for joint authority to appoint or remove the union steward or
the Union’s rejection of it. By letter dated September 14,
Murad again sought to get the parties back to the table, ad-
vising he was asking a union representative to contact Zoli,
and repeated his prior position that the Union will not nego-
tiate over the naming of a steward. In a letter dated October
5, addressed to the Regional Director for Region 3, copies
to Union Counsel Murad and Zoli, Bosso acknowledged that
the subject of the Employer’s right to select the union stew-
ard is a permissive subject of bargaining and noticed that the
letter was to serve as the Employer’s unilateral and voluntary
withdrawal of any and all proposals concerning the matter of
the Union’s steward. In his testimony, on cross-examination,
Zoli finally acknowledged that the steward’s language in Re-
spondent’s proposed article II was not withdrawn until after
the exchange of letters between counsel and ‘‘probably’’
took place after the August 3 session. (Tr. 122.)
Following the exchange of letters, the parties resumed ne-
gotiations on October 18 at which time Mid-State withdrew
its steward’s proposal at the bargaining table.
C. The Facts Relating to the July Layoffs and Alleged
Subcontracting of Unit Work
William Marshall was first employed by Respondent’s
predecessor in April 1986 as a yardman, and then as a dump
truck driver and driver of a ready-mix concrete mixer truck.
After Respondent’s purchase of the Oneida facility effective
January 29, 1988, Marshall subsequently became employed
by Respondent. For a 2-month period prior to July 11, Mar-
shall drove a 10-wheel dump truck for Mid-State hauling
mainly sand, but also some stone, to the Oneida facility.
On July 11, before fueling up for his last trip of the day,
Marshall was called into the office to see Plant Manager
Mark McCraith. McCraith told him the truck was needed up
north and that he was going on layoff. Later that day Mar-
shall saw the truck being driven out of the yard after he re-
moved his tools. Marshall, although burdened by an arthritic
condition of his hands, was able to operate the dump truck
and had driven and handled a concrete mixer for 2 years
prior to Respondent’s purchase of the facility. At the time of
his layoff, Respondent had six or seven ready-mix vehicles
at the Oneida facility with all but one usually in use.
Alton Blair had been employed by Respondent’s prede-
cessor, Mid-State Ready Mix, since 1974, driving a tractor-
trailer, concrete mixer dump truck, and running the yard. He
had been one of the prior employees hired by Respondent
from the outset of its operations in Oneida. In the summer
of 1988, for 5 or 6 days a week, he had been driving a Mack
tractor with Summit Trailer hauling mostly stone and some
sand into the Onedia facility. On Marshall’s layoff on July
11, Blair was assigned all the hauling of stone and sand into
the plant, working an average 10 to 15 more hours per week.
On or about Monday, July 25, Blair was joined in the work
by Benny Haywood, a driver employed by Torrington Indus-
tries, Inc., who resided in Keesville, New York, 5 hours driv-
ing distance north of Oneida. Haywood drove down an Inter-
national make tractor-trailer owned by Torrington and began
hauling sand while Blair continued hauling stone. Blair had
not seen this particular tractor-trailer previously at the Onei-
da facility.
Late in the day on July 26, Blair testified he was called
into the office and McCraith told him that they were parking
the truck. McCraith responded to Blair’s exclamation of sur-
prise by stating ‘‘do you think it’s profitable driving a trac-
tor-trailer up and down the road for 15 tons?’’ Blair replied,
‘‘we’ve been doing it for five months. So now we’re parking
the truck.’’ McCraith told Blair he could go on a mixer, what
his old job used to be, or go on layoff. Blair asked how long
it was going to take to get an overload permit for the Mack
tractor, the problem which was limiting the Respondent’s use
of the truck’s maximum hauling weight. McCraith replied
they didn’t know. When Blair suggested he be allowed to
take off a couple of weeks, McCraith said, ‘‘no, he had to
know Blair’s decision by the following day.’’
Blair came in the next day, Wednesday, July 27, and told
McCraith he changed his mind and wanted a mixer.
McCraith asked him the concrete mixing truck number and
Blair gave him the number of his old truck. McGraith told
him he couldn’t have that one because another guy was driv-
ing it and he didn’t know when it was available. Then Blair
asked him how long before he gets a truck. McCraith said
that he didn’t know. Blair testified that there were no other
ready-mix trucks available for him to drive at that time.
817TORRINGTON INDUSTRIES
McGraith then said, ‘‘in the meantime, we can’t have any
problems with phone calls from customers that you didn’t
back right or mix right or gave them a hard time.’’ Blair told
McCraith if he thought it was going to be a problem, give
him his layoff. Blair was given a layoff slip and asked that
when you get the permit back, could he come back.
McGraith said that he would have his job back when they
got his tractor-trailer back. Zoli since confirmed this in con-
versation with Blair, informing Blair he’d have a tractor-trail-
er in the spring one way or another. Respondent failed to ad-
duce any evidence relating to any shortcomings of Blair as
a driver of ready-mix cement and Blair denied any problems
arising during his 14 years delivering mix. During that pe-
riod, Blair recalled he had only been laid off once, years ago,
by Respondent’s predecessor. Usually, he and the owner,
Skinner, worked together through the winter, the slow season
in the industry.
By letter dated September 8, Zoli informed Blair that the
state would not issue the appropriate permit for the Mack
tractor and ‘‘the only work we have for you would be oper-
ating a ready mix concrete truck as you did from time to tim
previously at Mid-State . . . .’’ Zoli hoped to acquire a trac-
tor with a permit in the spring and offer Blair a job operating
it. Later after receiving the letter, Blair went in and asked
what was wrong. They were letting everyone else back in
and why couldn’t he go back on the tractor-trailer. Appar-
ently, by this time, Marshall had been recalled. McCraith
told him there would be no changes made in what they were
doing. McCraith did not say anything about Blair driving a
ready-mix truck.
Haywood, who continued hauling sand and stone after
Blair’s layoff with the International rig, received a higher
rate of pay than Oneida’s drivers, was compensated by
Torrington for his weekly stays at a local hotel while work-
ing at the Oneida facility, and commuted the 5-hour distance
to and from his home at Keesville on weekends, also at
Torrington’s expense.
At some point after Haywood started hauling sand and
stone alone on July 27, he could not bring in sufficient
stockpile to fill ready-mix orders from customers and Re-
spondent then made arrangements with a number of outside
contractors to haul materials in their own trucks, among them
Charles Staught, Frances Fawley, and Atlas Oil.
Marshall was recalled to the Oneida facility on November
14, replacing Haywood in the tractor-trailer brought from
Keesville and has continued hauling sand and stone into the
facility.
At no time prior to the summer of 1988 had outside con-
tractors been utilized to haul sand and stone to the Oneida
facility.
Parks testified that at no time prior to the layoffs of Mar-
shall and Blair did the Respondent contact the Union con-
cerning their possible layoffs or terminations or offer to bar-
gain over the decisions involving these two unit employees
or the affect of its actions regarding them. Zoli acknowl-
edged that he never informed the Union at any of the bar-
gaining sessions after Haywood started hauling sand and
stone that Respondent had brought Haywood and the Inter-
national rig down to do this unit work. Neither did Zoli dis-
cuss subcontracting of any kind with the Union at the bar-
gaining sessions.
After learning about their layoffs from calls the two em-
ployees had placed with his office, Parks brought up these
actions at the negotiating sessions but was met by the re-
sponse from Zoli that he had a right to let whoever he want-
ed go and to hire whoever he wanted to get himself the most
efficient work force and that it was his prerogative to do so.
Parks learned from Zoli that the 10-wheel tandem dump
truck was needed at another location and that the tractor-
trailer was taken off the runs, because it did not have a per-
mit to haul over a certain amount.
Parks recalled that at the July 26 meeting the Union had
discussed its proposal regarding seniority, see above, but that
the Respondent wouldn’t hear anything about it. The Em-
ployer then left this meeting and laid off Blair, the most sen-
ior employee. At the August 3 session, when Parks raised the
matter of Blair’s layoff, Zoli told him about the tractor lack-
ing an overload permit, so he brought another truck and driv-
er on. Parks then testified, ‘‘If he brought another truck, we
would have been able to discuss it [Blair’s retention], but no,
he brought another driver and laid our guy off.’’ (Tr. 38.)
Zoli testified about a problem which developed with a ce-
ment blower which Respondent had inherited from the prede-
cessor owner of the Oneida facility. As a result of the blower
becoming inoperative in May, Mid-State became fully de-
pendent on suppliers for delivery of cement powder which
had previously been hauled, in part, by its own drivers. Blair
had hauled the cement tanker with the Mack tractor when the
blower had been used to remove the powder for storage at
the facility in a silo.
Zoli also related that Parks had called him on Friday, July
29 complaining that Respondent had laid off one of his peo-
ple. Zoli testified he told Parks, ‘‘Frank, we didn’t lay off
one of your people. We offered him a job on the Ready-Mix
truck and he refused it.’’ Parks told him, ‘‘that’s not my un-
derstanding.’’ Zoli ended by saying, ‘‘He can report Monday
if he wants to drive a Ready-Mix truck.’’ Blair did not re-
port.
McCraith testified that after giving Blair 1 day to decide
whether to go on a mixer or take a layoff, Blair came in the
next day and decided to take the layoff. McCraith could not
recall any discussion with Blair about which ready-mix truck
he would drive but affirmed that a ready-mix truck could
have been made available to him if he had wanted one.
McGraith said that Blair did not ask for a ready-mix truck
then or later when he came to complain after Marshall was
driving the tractor-trailer.
On cross-examination, McCraith acknowledged that a
trainee was operating Blair’s old ready-mixer on a part-time
basis and the trainee was later hired full time. Further, when
asked if there was a specific discussion about a particular
truck, McCraith noted that if there was another truck avail-
able, Blair was welcome to it but he did not indicate in so
many words whether there was another truck available.
McCraith also indicated that Blair had been bothered by his
own insistence that he did not want any major complaints
from customers.
In the conflict as to Blair’s conversation with McCraith on
July 27, Blair is credited that he opted to drive a ready-mix
truck but none was made available to him. The cir-
cumstances surrounding this conversation make evident the
Respondent’s reluctance to offer a ready-mix delivery job to
Blair, that no unmanned truck was then made available for
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although not directly proposed, it may be reasonably inferred
that the Union’s grievance and arbitration provision, to the extent it
authorizes the steward to investigate and adjust grievances away
from his workplace, authorizes continued payment of wages during
the time necessary to conduct these activities.
his use and by dwelling on issues involving customer rela-
tions without evidence of any prior short comings on his
part, Blair was made to feel uncomfortable in continuing to
seek such a placement. Given this resolution, Zoli is not
credited as to his version of the Blair, McCraith interchange
which he reported to Parks on December 29, and Zoli’s offer
made to Blair through Parks suffers from the same defects
inherent in McCraith’s response to Blair on July 27. Parks
recalled calling Zoli on the July 29 in regard to bringing in
another truck and driver—probably Haywood—to perform
Blair’s work and did not recall but Zoli could have told him
to get ahold of Blair to put him on the ready-mix truck.
Parks noted here that the Union’s claim was that Respondent
had taken Blair off the job covered under the unit and gave
it to an outside carrier, and the Union wanted Blair back on
the job.
Zoli also testified that it was routine to switch equipment
among Torrington’s multiple facilities as needed. Zoli later
clarified that a nucleus of equipment is maintained at each
location but that changes are made between them from week
to week and month to month. Besides the facility at Oneida,
Torrington has nine other ready-mix concrete plants, mostly
in northeastern New York, and five sand and stone proc-
essing plants. It has been the Company’s practice in the past
to maintain a separate payroll for such employees as Benny
Haywood who are assigned to different facilities on an as
needed basis.
Analysis and Conclusions
I turn first to the issue concerning Respondent’s participa-
tion in the selection and removal of the Union’s steward. In
uncontroverted testimony, at the bargaining session held on
August 3, Respondent’s president, Theodore Zoli stated, in
so many words, that unless the Union agreed with Mid-
State’s proposal on job stewards and withdrew its seniority
provision, there was nothing further to talk about at the table,
when Union Business Agent Frank Parks protested the Com-
pany’s intended role in selecting or removing the union stew-
ard.
Zoli cut short the meeting with the statement that the mat-
ter was now up to the Union to do whatever it wanted,
strongly implying that any further negotiations were depend-
ent on the Union’s acquiescence to the Respondent’s position
on the two issues.
By conditioning further bargaining on union assent to joint
selection, with the Employer, of the job steward and to the
Employer’s right of removal of the steward after 1 year, Re-
spondent interjected itself forcefully into a subject—the se-
lection of the agents of its employees’ collective-bargaining
representative—which the Act enjoins is strictly an internal
union matter. See Howland Hook Marine Terminal Corp.,
263 NLRB 453, 454 (1982). In accord: Native Textiles, 246
NLRB 228 (1979), where the Board at 229 commented,
‘‘The right of employees to designate and to be represented
by representatives of their own choosing is a basic statutory
policy set forth in Section 7 of the Act and a fundamental
right guaranteed employees by Section 7 of the Act.’’
The Board has clearly recognized that while certain as-
pects of proposals concerning grievances are mandatory sub-
jects of bargaining, e.g., whether employees will be paid for
time spent on grievance negotiations, the determination of
the identity of a party’s bargaining representative is a non-
mandatory subject of bargaining, and, as such, may not be
insisted on, to impasse in bargaining. Missouri Portland Ce-
ment Co., 284 NLRB 432, 434 fn. 13 (1988); Idaho States-
man, 281 NLRB 272, 275 (1986); NLRB v. Borg-Warner
Corp., 599 F.2d 92, 94 (5th Cir. 1979).
Respondent’s error was in coupling the selection of stew-
ard with its opposition to the Union’s seniority provision, a
mandatory subject, in taking its adamant position. This error
is compounded in its brief where Respondent argues at page
13 that because the Union’s proposal clearly had costs at-
tached to it (payment for time devoted to union business),2
the Employer could lawfully link its willingness to negotiate
on this voluntary [permissive] subject with its position on a
mandatory subject which also has a cost impact (i.e., senior-
ity or wages), as a package of conditions. The teaching of
Missouri Portland Cement Co. supra, is directly to the con-
trary, on the very subject matter—the determination of the
identity of the Union’s representative—which the Respondent
here insisted on including in any resulting agreement. Neither
of the two cases Respondent cites supports its erroneous
proposition. Neither Nordstrom, Inc., 279 NLRB 601 (1977),
nor Good GMC, Inc., 267 NLRB 583, 584 (1983), dealt with
the issue as to whether a party’s insistence on acceptance of
its package including both mandatory and permissive sub-
jects constitutes a refusal to bargain in good faith, the issue
here, but rather both dealt with whether a party may be com-
pelled to execute an agreement where the other party has
agreed only to the mandatory subjects encompassed in the
first party’s offer.
Inasmuch as Respondent’s insistence on the contract’s in-
clusion of its steward proposal continued, by its admission,
from August 3 until well into October, when the parties next
resumed bargaining, I conclude that Respondent’s demand,
as a condition of agreement on terms of a collective-bar-
gaining agreement, that it jointly select the union steward
and retain rights of removal of the steward violated its obli-
gation to bargain in good faith under Section 8(a)(1) and (5)
of the Act.
As to the Respondent’s alleged conduct in laying off two
unit employees and subcontracting unit work, it is clear from
the record that both Marshall and Blair were laid off during
July, without advance notice or opportunity to the Union to
bargain about the decisions or their effects, and, further, that
Respondent assigned unit work to nonunit employees and
contracted out unit work to third parties also without prior
notice or opportunity to bargain about these decisions or their
impact on unit employees having been provided to the
Union.
Marshall’s layoff, on July 11, took place after the Union’s
winning of the election and before its certification. This fact
is no impediment to concluding that his removal from the
payroll constitutes a refusal to bargain with the duly des-
ignated representative of the employees, who, on July 8,
chose the Union to represent them, Bay Diner, 250 NLRB
187 fn. 2 (1980); Mike O’Connor Chevrolet, 209 NLRB 701,
703 (1974).
819TORRINGTON INDUSTRIES
An employer violates Section 8(a)(5) and (1) of the Act
when it unilaterally institutes a material change in the terms
and conditions of employment which is a mandatory subject
of collective bargaining, regardless of the nature of its moti-
vation. Office Workers Local 512 v. NLRB, 795 F.2d 705
(9th Cir. 1986); NLRB v. Katz, 369 U.S. 736, 747 (1962).
It is clear that layoffs of unit employees are subjects of man-
datory bargaining and require the employer to notify the des-
ignated bargaining agent and offer to bargain prior to imple-
menting the layoff. Pent Mfg. Co., 261 NLRB 240 fn. 2
(1982). On reaching its decision to layoff ‘‘the employer
must notify the Union, and, upon request, bargain with it
concerning the layoffs, including the manner in which the
layoffs and any recalls are to be effected.’’ Clements Wire
& Mfg. Co., 257 NLRB 1058, 1059 (1981). Respondents ex-
pressed willingness to bargain over the effects of its decision
after the fact of the layoffs, recited in its brief at page 20,
does not satisfy its duty owed prior to the decision’s imple-
mentations.
Here, the Respondent coupled its layoffs with its removal
of vehicles to another location outside the bargaining unit,
coupled in one instance with its reassignment of the work to
another employee brought in from outside the unit from an-
other location and its later use of other outside employees
and subcontractors to perform the work. Respondent claims
that the decisions necessarily implicated in the employee lay-
offs of reassigning vehicles and outside drivers lie at the
‘‘core of entrepreneurial control’’ as discussed in Otis Eleva-
tor Co., 269 NLRB 891 (1984) and Fibreboard Products
Corp., 379 U.S. 203, 225 (1964), and were consistent with
its past practices and thus not subject to bargaining. Neither
argument provides a valid defense to the conduct alleged as
violative of the Act.
Although it is true that ‘‘where a decision turns on a
change in the scope, nature or direction of a significant facet
of the enterprise, the Act does not impose an obligation to
bargain.’’ Morco Industries, 279 NLRB 762 (1986), the de-
termination as to whether bargaining is required turns on
‘‘the substance of the decision itself and its amenability to
resolution through collective bargaining’’ Collateral Control
Corp., 288 NLRB 308 (1988), not the name by which it is
characterized.
The evidence that Respondent has regularly transferred ve-
hicles and drivers and utilized outside firms to supply its raw
material needs as the situation warrants it, aids in estab-
lishing that the layoffs and reassignment of driving work to
employers and firms outside the unit were a routine part of
the business not constituting a significant change in its direc-
tion. As the same work continued to be performed by other
employers and firms delivering to the same facility at which
the bargaining unit members remain employed, Respondent’s
decisions were, and continued to be, subject to the bargaining
obligation. Pertic Computer Corp., 284 NLRB 810 (1987).
Respondent makes much of its discontinuance of the ce-
ment blower. That decision, by itself, did not dictate Blair’s
layoff, the reassignment of his tractor-trailer did, and al-
though Mid-State no longer transported cement powder in its
own truck, it continued to use the same products, stone, sand,
water, and cement, and to engage in the same manufacturing
process and technology of mixing the product to form con-
crete and delivering it to customers in its own ready-mix
trucks. Under these circumstances, its layoff of employees
and its reassignment of work from employees represented by
the Union to unrepresented employees and outside firms
without affording notice of an opportunity to bargain to the
Union constitute violations of the bargaining obligation with-
in the meaning of Section 8(a)(1) and (5) of the Act. Techni-
color Government Services, 271 NLRB 1220, 1224 (1984);
Collateral Control Corp., supra. Neither has Respondent
shown that bargaining to impasse or agreement over the deci-
sions it made would have jeopardized its business in any
way. Pertic Computer Corp., supra. From all that appears,
including the credited testimony of Frank Parks, Zoli did not
believe that Mid-State owed any duty to consult the Union
or negotiate about these matters. I also conclude that inas-
much as the decisions Respondent made here did not change
the scope or direction of the enterprise and were amenable
to bargaining, my conclusion that bargaining was mandated
is not inconsistent with either First National Maintenance v.
NLRB, 452 U.S. 666 (1981), or Otis Elevator Co., 269
NLRB 891 (1984).
In Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), which
decision was reaffirmed and explained in First National
Maintenance Corp., involving facts very similar to those
present here of ‘‘the replacement of employees in the exist-
ing bargaining unit with those of an independent contractor
to do the same work under similar conditions of employment
. . .’’ the Court held that such ‘‘contracting out’’ or ‘‘sub-
contracting’’ is a mandatory subject of bargaining. Id. at 215.
Justice Steward’s concurring opinion, on which Respondent
relies at page 18–19 of its brief, notes that ‘‘all that is in-
volved is the substitution of one group of workers for an-
other to perform the same task in the same plant under the
ultimate control of the same employer.’’ Id. at 224. While
the subcontractor here did not work at the facility, they de-
livered materials to it under arrangements and schedules set
by Respondent. As the Board found in Collateral Control
Corp., supra at 2, nothing in the opinions expressed by
Board members in Otis Elevator Co., supra, should disturb
the principles of the Supreme Court’s decision in
Fibreboard. Thus, Respondent’s decision to transfer the unit
work to other employees, and to subcontract the unit work
and to layoff employees and the effects of those decisions,
were and continue to be, violations of the Act.
Finally, as there was no history of prior subcontracting or
layoffs of unit employees at the Oneida facility, Respond-
ent’s practices at its other locations are unavailable to it as
a defense for its actions in the unit limited to the Oneida fa-
cility in which the Charging Union was selected and certified
as the affected employees’ bargaining representative.
CONCLUSIONS OF LAW
1. The Respondent, Mid-State Ready Mix, a Division of
Torrington Industries, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2) and (6) of the Act.
2. Teamsters Local Union No. 182, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As noted earlier, the record discloses that Marshall was recalled
to employment as a tractor-trailer driver on November 14, 1988, and
Alton Blair had not been recalled to work as either a ready-mix or
tractor-trailer driver by the close of hearing.
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment) shall be computed as in
Florida Steel Corp., 231 NLRB 651 (1977).
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
All full-time and regular part-time drivers, mechanics
and yardmen employed by Respondent at its Oneida,
New York facility; excluding all office employees, con-
fidential employees, professional employees, guards and
supervisors as defined in the Act.
4. At all times material since July 8, 1988, the Union, by
virtue of Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the employees in the aforesaid appro-
priate unit for the purpose of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment within the meaning of
Section 9(a) of the Act.
5. By unilaterally laying off unit employees William Mar-
shall and Alton Blair and by transferring the work of hauling
cement, sand, and stone previously performed by employees
employed at the Oneida, New York facility who are rep-
resented by Teamsters Local Union No. 182, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO, to other em-
ployees who are not so represented and by subcontracting
out such work without notification to on affording the Union
an opportunity to bargain, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
and Section 2 (6) and (7) of the Act.
6. By bargaining to an impasse and refusing to meet and
negotiate with the Union unless the Union agreed to joint se-
lection of the Union’s job steward and Respondent’s right to
remove the steward after 1 year on 30 days’ notice to the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action, in-
cluding the posting of the customary notice, designed to ef-
fectuate the policies of the Act.
Having found that Respondent has unlawfully made unilat-
eral changes in the employees’ terms and conditions of em-
ployment, I shall recommend that Respondent be ordered to
restore the status quo ante by assigning all work of hauling
cement, sand, and stone to employees employed at its Onei-
da, New York facility, and that Respondent be ordered to
cease and desist from implementing unilateral changes in
terms and conditions of employment of unit employees with-
out first bargaining with the Union which represents them.
I shall further recommend that Respondent be ordered to
make William Marshall and Alton Blair whole for any loss
of earnings or benefits they may have suffered as a result of
their unlawful layoffs,3 less interim earnings, if any, with in-
terest thereon as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).4
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Mid-State Ready Mix, a Division of
Torrington Industries, Inc., Oneida, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters Local
Union No. 182, a/w International Brotherhood of Teamsters,
AFL–CIO as the exclusive representative of its employees in
the following unit, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment:
All full-time and regular part-time drivers, mechanics
and yardmen employed by Respondent at its Oneida,
New York facility; excluding all office clerical employ-
ees, confidential employees, professional employees,
guards and supervisors as defined in the Act.
(b) Laying off unit employees, transferring the work of
hauling cement, sand, and stone previously performed by
employees employed at the Oneida, New York facility who
are represented by the Union to other employees who are not
so represented, subcontracting out such work, or changing
any other terms or conditions of employment of employees
in the above-described unit without first notifying the Union
and affording it an opportunity to bargain about such
changes.
(c) Bargaining to impasse and refusing to meet and nego-
tiate with the Union unless the Union agrees to joint selec-
tion of its job steward and Respondent’s right to remove the
steward after 1 year on 30 days’ notice to the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing any employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request bargain collectively with the Union with re-
spect to the wages, hours, and other terms and conditions of
employment of the employees in the unit described above.
(b) Cancel, withdraw, and rescind the transfer of any unit
work of hauling cement, sand, and stone to employees not
represented by the Union in the unit described above and the
subcontracting out of any such work.
(c) Offer to employees William Marshall and Alton Blair,
if it has not already done so, immediate and full reinstate-
ment to their former positions or, if they no longer exist, to
substantially equivalent ones, without prejudice to their se-
niority or other rights and privileges.
(d) Make whole William Marshall and Alton Blair for any
loss of earnings or benefits they may have suffered as a re-
sult of their unlawful layoffs in the manner set forth in the
remedy section of this decision.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
821TORRINGTON INDUSTRIES
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Oneida, New York facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places in both plants including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.