AMCAR Div., ACF Industries, Inc. v. N.L.R.B.

Citation596 F.2d 1344
Decision Date11 June 1979
Docket NumberNo. 78-1386,AFL-CIO-CL,I,78-1386
Parties100 L.R.R.M. (BNA) 3074, 85 Lab.Cas. P 11,209 AMCAR DIVISION, ACF Industries, Incorporated, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Brotherhood of Railway Carmen of the United States and Canada, Lodge 365,ntervenor-Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John E. Jay, of Parker, Chapin, Flattau & Klimpl, New York City, for petitioner, AMCAR Division; Johnna G. Torsone, New York City, on briefs.

Andrew Tranovich, Atty., Appellate Section, N.L.R.B., Washington, D.C., for respondent, N.L.R.B.; John H. Ferguson, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief.

Charles A. Werner, of Schuchat, Cook & Werner, St. Louis, Mo., for intervenor-respondent.

Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, * District Judge.

HEANEY, Circuit Judge.

This matter is before the Court upon the petition of AMCAR Division, ACF Industries, Incorporated, for review of an order of the National Labor Relations Board and the cross-application of the Board for the enforcement of the order. 1 The Board found that AMCAR had violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), by letting ten contracts for bargaining unit maintenance work without first bargaining with the intervening unions and by failing to provide the unions with a detailed list of maintenance contracts for a two-year period. The Board ordered AMCAR to make the employees whole for the bargaining unit maintenance work contracted out, to bargain with the unions with respect to bargaining unit work contracted out in the future, to promptly furnish the unions a detailed list of all such contracts let, together with the number of man-hours involved in each contract, for the period July 20, 1974, through July 20, 1976, and to post appropriate notices. The Board's decision and order is reported at 234 NLRB No. 158, 98 L.R.R.M. 1287 (1978). 2 We modify the Board's order and, as modified, enforce it.

AMCAR manufactures railroad rolling stock and related items at a large plant in St. Louis, Missouri. It employs skilled tradesmen to maintain its premises. The intervening unions represent these employees as part of an overall production and maintenance union. The collective bargaining agreement in effect when the disputes involved in this proceeding occurred did not contain an explicit reference to contracting out of maintenance work. The agreement defines the bargaining unit to include maintenance employees at the plant, including welders, cutters, burners and electricians. It does not otherwise define the work to be done by the maintenance employees. The agreement contains a narrow management rights clause. 3

AMCAR has frequently used independent contractors to make some capital improvements and to perform some maintenance work. It usually informed the unions that it intended to do so and sometimes bargained with them concerning its decision.

From January 1, 1976, through July 12, 1976, AMCAR let fifty-six contracts for maintenance projects in the plant. It failed to notify the unions of some of the contracts or to afford the unions an opportunity to bargain over all of the decisions to let them. In July, 1976, the union protested the letting of some of the contracts and asked AMCAR to furnish it with a list of all maintenance contracts let during the preceding twenty-four months. AMCAR contended that it had a right to let the maintenance contracts and refused to furnish the list requested. It did agree to furnish a list of all maintenance work contracted out for the preceding six months.

On September 3, 1976, the unions filed an unfair labor practice charge with the Board. They charged that AMCAR had violated § 8(a)(1) and (5) of the Act by failing to notify the unions of and refusing to bargain with them about the contracting out of ten maintenance projects, 4 and by refusing to furnish the unions with a complete list of all maintenance work contracted out in the preceding two years, together with the number of man-hours involved with each contract. A complaint generally consistent with the charges was issued by the Board on March 15, 1977. 5

The Administrative Law Judge heard the matter in April, 1977, and on July 29, 1977, issued an order finding that AMCAR had violated § 8(a)(1) and (5) of the Act by unilaterally contracting out four 6 of the ten maintenance projects without giving the unions adequate prior notice of its intentions and without affording them an opportunity to bargain collectively with respect to such work. He further found that AMCAR had engaged in unfair labor practices within the meaning of § 8(a)(5) by refusing to furnish the unions with information as to the number of man-hours involved in each contract on the six-month list. He recommended that AMCAR be required (1) to make whole its employees for any loss of earnings they suffered by reason of its unlawful conduct, together with interest at the rate of six percent per annum, (2) to cease and desist from contracting out bargaining unit work without giving the unions notice and an opportunity to bargain with respect thereto, and (3) to furnish the unions with a list of the maintenance contracts with the man-hours involved in each contract for the six-month period prior to the filing of the charge and (4) to post appropriate notices.

On February 27, 1978, the Board modified the findings of the Administrative Law Judge by holding that the six remaining contracts 7 were also violative of the Act and by extending the period for which AMCAR was required to furnish a list of maintenance contracts from six months to two years. It adopted the order of the Administrative Law Judge as modified.

AMCAR asks us not to enforce the Board's order. It contends that its decisions to contract the maintenance work were not mandatory bargaining subjects under § 8(a)(5). It also contends that it is unreasonable to require the requested list for a two-year period and to advise the unions before it contracts for any maintenance work. It argues, alternatively, that the union had prior notice of the contracts at issue and waived its right to bargain with respect to them, and that § 10(b) barred the issuance of the complaint as to some contracts.

The United States Supreme Court, in Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), held that

the "contracting out" of the work previously performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representatives of their employees to bargain collectively.

Id. at 209, 85 S.Ct. at 402.

Mr. Justice Stewart, joined by Justices Douglas and Harlan, concurred noting that the decision was limited to situations where employees in an existing bargaining unit were replaced by an independent contractor doing the same work under similar conditions of employment. See also N.L.R.B. v. King Radio Corporation, 416 F.2d 569, 571 (10th Cir. 1969), Cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); Puerto Rico Telephone Company v. N.L.R.B., 359 F.2d 983 (1st Cir. 1966); District 50, United Mine Workers Local 13942 v. N.L.R.B., 358 F.2d 234 (4th Cir. 1966).

The National Labor Relations Board in Westinghouse Electric Corp.,150 N.L.R.B. 1574, 58 L.R.R.M. 1257 (1965), specifically set forth the factors it follows in determining whether an employer has a duty to bargain about decisions to contract out maintenance work. The Board stated:

(W)here the Board has found unilateral contracting out of unit work to be violative of Section 8(a)(5) and (1), it has invariably appeared that the contracting out involves a departure from previously established operating practices, effected (sic) a change in conditions of employment, or resulted (sic) in a significant impairment of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit.

58 L.R.R.M. at 1258 (footnote omitted).

In our view, the Westinghouse "guidelines" substantially comport with Fibreboard and fairly set forth the factors which should be considered in determining whether an employer has violated the Act by contracting out of work.

Applying Westinghouse to the facts of this case, we find that there is substantial evidence in the record as a whole to support the Board's finding that AMCAR violated § 8(a)(5) of the Act by contracting out the (1) rebuilding of Erie Presses 7053 and 7054, (2) installation of hydraulic controls for the N/C Multiple Punch, (3) installation of new grease lines on the east transfer table in Building 266, and (4) installation of a new guard house. There is no substantial evidence to support a violation based on the plumbing contracts, and § 10(b) of the Act barred the issuance of a complaint with respect to the rebuilding of Machine 7124, Burning Machine 5901 and Punch No. 7111.

The Erie Presses

With respect to the Erie Presses, AMCAR argues that it was engaged in their complete, complex rebuilding. It maintains that its employees lacked the skills necessary to do the work, that there were insufficient unit employees to complete the job within a reasonable period of time, and that the job was scheduled for completion during the annual two-week shutdown period when so much other maintenance work existed that unit employees were not available to undertake the rebuilding.

Substantial evidence in the record as a whole supports the Board's finding that unit employees had performed, from time to time, all of the separate elements of the job required to rebuild the presses and that the contracting out...

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