International Union, UA, A. & A. Imp. Wkrs. v. NLRB

• Decision Date: 03 March 1967
• Docket Number: No. 19156.,19156.
• Citation: 381 F.2d 265
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, General Motors Corporation, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

381 F.2d 265 (1967)

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent General Motors Corporation, Intervenor.

No. 19156.

United States Court of Appeals District of Columbia Circuit.

Argued November 21, 1966.

Decided March 3, 1967.

Petition for Rehearing Denied April 4, 1967.

Certiorari Denied October 9, 1967.

Mr. John A. Fillion, Detroit, Mich., with whom Messrs. Stephen I. Schlossberg, Washington, D. C., Bernard F. Ashe, Detroit, Mich., Joseph L. Rauh, Jr., and John Silard, Washington, D. C., were on the brief, for petitioner.

Mr. Allison W. Brown, Jr., Atty., N.L. R.B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, were on the brief, for respondent.

Mr. Eugene L. Hartwig, Detroit, Mich., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Messrs. K. Douglas Mann and George Cherpelis, Detroit, Mich., were on the brief, for intervenor.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and WRIGHT, Circuit Judge.

Petition for Rehearing en Banc. Denied April 4, 1967.

Certiorari Denied October 9, 1967. See 88 S.Ct. 82.

EDGERTON, Senior Circuit Judge.

This case is here following our remand to the Board for clarification of its opinion which accompanied its order dismissing the union's complaint against the employer, General Motors. The union charged violation of § 8(a) (5) and (1) of the National Labor Relations Act, 61 Stat. 136, as amended, 29 U.S.C. § 158(a) (5) and (1).

New cars awaiting shipment at the company's Southgate, California, plant were parked in two successive steps. The first part of the parking operation was done by employees of the employer who were members of a unit with which the employer had a collective bargaining agreement. The second part of the operation was done by employees of a different concern which had a contract with the company. The agreement between the union and the employer provided that "the methods, processes and means of manufacturing are solely and exclusively the responsibility of the Corporation."

The Company has made a contract by which the entire parking operation is to be performed by employees of the concern which had been performing only the second part of it. In response to a question that we asked, the Board found on remand that the change in the company's method of shipping cars did not involve contracting out work formerly performed by the union. We think the evidence does not support this finding. Though the change of method "achieved substantial efficiencies," as the union concedes, the change was accomplished through a contracting out. It took away the jobs of six members of the union. Though these men got similar jobs elsewhere in the plant, the change had an adverse impact on the bargaining unit since it diminished by six the whole number of jobs performed by its members. This was not a mere "de minimis" violation of the employer's duty to bargain with the union.

In District 50, United Mine Workers v. NLRB, 358 F.2d 234 (1966), the Fourth Circuit Court of Appeals sustained the Board's approval of contracting out, on the ground that "the Board was entitled to conclude that there was no substantial adverse impact on the employees caused by the employer's subcontracting decisions." 358 F.2d at 237. And in Puerto Rico Telephone Co. v. NLRB, 359 F.2d 983, 988 (1966), the First Circuit overruled part of a Board order against an employer because the court found no evidence "that the bargaining unit or any employee in it" was "adversely affected as a direct result" of the contracting...