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

• Decision Date: 06 February 1979
• Docket Number: I,AFL-CIO-CL,No. 77-1713,77-1713
• Citation: 592 F.2d 422
• Parties: 100 L.R.R.M. (BNA) 2710, 85 Lab.Cas. P 11,097 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 422

592 F.2d 422

100 L.R.R.M. (BNA) 2710, 85 Lab.Cas. P 11,097

AMCAR DIVISION, ACF INDUSTRIES, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Brotherhood of Railway Carmen of the United States and Canada, Lodge 365, AFL-CIO-CLC, Intervenor-Respondent.

No. 77-1713.

United States Court of Appeals Eighth Circuit.

Submitted May 16, 1978.

Decided Feb. 6, 1979.

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

John H. Ferguson, Atty., N. L. R. B., Washington, D. C., for respondent; Frederick Havard, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on the brief.

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

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and VAN PELT, Senior District Judge. ^*

VAN PELT, Senior District Judge.

This matter is before the court upon the petition of AMCAR Division, ACF Industries, Inc. (AMCAR) for review and on cross-petition of the National Relations Board (NLRB) for enforcement of an NLRB Order. ¹

The NLRB affirmed the rulings, findings and conclusions of the Administrative Law Judge who heard this case. The Administrative Law Judge concluded that AMCAR had violated Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), ² by subcontracting out bargaining unit production work without notifying the union, by refusing to furnish the union with requested information concerning the subcontracting, and by refusing to provide the union with a requested copy of a handwriting analysis. In a footnote, the NLRB specifically agreed with the Administrative Law Judge's finding that the six month statute of limitations under the National Labor Relations Act, 29 U.S.C. § 160(b), did not begin to run in this case until the union discovered the subcontracting.

The NLRB also adopted the Order of the Administrative Law Judge which provided in substance that AMCAR would cease and desist from (1) unilaterally subcontracting bargaining unit work without notice to the union, and (2) failing or refusing to supply the union with lawfully requested information concerning subcontracting or the processing of grievances. In addition, AMCAR was required to take certain affirmative action, including the following:

(a) Reinstate the trailer hitch and hitch components assembly operation and parts fabrication previously performed by its employees represented by the Union, to the extent that Respondent has customer orders, or will have customer orders, or stockpiles, for sale or repair of trailer hitches or components or parts, and uses or will use or stockpiles for use such products in its completion or repair of railroad flatcars.

(b) Offer to those employees, who were discharged or laid off as a result of the subcontracting of the trailer hitch related work, immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered . . ..

(c) Bargain collectively with the Union as to any continuing unremedied effects on the bargaining unit as a result of the unlawful subcontracting of the hitch-related work not remedied by the preceding subparagraphs (a) and (b) of this paragraph 2, with respect to wages, hours, and other terms and conditions of employment.

(d) Give notice to the Union and bargain collectively with it concerning any future subcontracting of work performed by bargaining unit employees, unless specifically provided otherwise by the collective bargaining contract between the Union and Respondent.

(e) Comply with lawful requests of the Union for information concerning subcontracting, processing of grievances, and like matters pertaining to the Union's participation in administering the collective bargaining contract or in collective bargaining negotiations.

Joint Appendix at 59-60. We enforce the order of the Board.

FACTS

We believe the primary facts set forth in this section are not in dispute. The principal office and plant of the Amcar Division is in St. Louis, Missouri. The St. Louis AMCAR has been engaged in the manufacture, sale, and distribution of railroad freight cars and related products, including trailer hitches. These trailer hitches are installed on flatcars used to transport trailers from tractor-trailer trucks.

AMCAR has made five different models of trailer hitches. The models vary only in size and not in style. In order to assemble the hitches, fixtures called jigs hold the various parts in place. As the Administrative Law Judge found:

Respondent has produced, in its plant with its own employees, all of the (fabricated) parts, components, and completed hitches for all five models, and has also produced the various jigs for assembling the different model components and final assemblies. The parts are made from raw steel by the Fabrication Department, where they are punched, formed, and sheared. From Fabrication the parts are moved to the hitch area or areas of Department 125, where the assembly of parts into components and the assembly of components into completed hitches is performed. The main work in assembly is performed by welders who place the parts, and later the components, in suitable jigs for tack welding and final welding. Some of the work is also performed by employees classified as fitters, tackers, and drill press operators. The jigs used in assembly are made in Respondent's tool and die shop.

Joint Appendix at 37.

During the last half of 1972, the company began phasing out the production of Model 4 trailer hitches in order to start the production of Model 5 hitches. In January, 1973, daily production of Model 5 hitches was between 5 and 10, and in March between 25 and 30. In order to produce more Model 5 hitches, the company expanded the hitch department and bought additional equipment. One additional building was equipped to perform final assembly of the Model 5 hitch. In addition, an area used to perform boxcar roof assembly was transformed into an area for performing sub assembly work for the Model 5 hitch by adding various equipment. Once this was completed, the production requirements increased to 50 hitches per day, six days a week, or 300 hitches per week. This continued through April of 1974. The hitch department was not able to meet this requirement; it requested and received better assistance in receiving parts and moving them. In April of 1974, the department was meeting the quota requirement. However, starting in May, 1974, the quota was changed to 60 hitches per day with a five day work week in order to avoid Saturday overtime. Production of 60 hitches per day was never achieved, although production did reach somewhere between 52 and 55. Two shifts daily were being used.

In November, 1974, the production quota was reduced to 30 hitches per day. According to the testimony of Mr. Meacham, who had been superintendent of the trailer hitch department during this time, the reduction was due to cancellations of orders for Model 5 hitches, and the 30 per day quota was largely for stockpiling for future use. The biggest portion of the second shift was eliminated according to Superintendent Meacham. In March, 1975, production of the Model 5 hitch was stopped altogether.

During the 1974-75 time period, the company was subcontracting out hitch components and parts. These subcontracts involved components for both the current Model 5 and for earlier Models A and 2. The contracts involved in excess of 18,000 manhours of work.

The Administrative Law Judge found that:

There were 14 groups of subcontracts (grouped by subject and contractor) totalling 35 subcontracts, the first let on March 25, 1974, the second on June 14, 1974, the next 29 in the period between July 1 and December 31, 1974, and additional two subcontracts in January and March, 1975, and the last two in May and August 1975, when the plant was on strike.

Joint Appendix at 40. The General Counsel for the NLRB has not complained of the first two subcontracts, which were small. The bulk of the subcontracting started in July of 1974, two months after AMCAR eliminated the Saturday shift for the 120 employees working in the hitch assembly section. As nearly as the union was able to tell from what may have been incomplete records, the first lay-offs from the hitch department occurred in September of 1974. The Administrative Law Judge found that between September, 1974 and November, 1975, there were layoffs of 113 welders, 16 fitters, 6 tackers, and 11 drill press operators and transfers of 5 welders and 1 fitter, either directly from Department 125 or related departments. While it was not clear that all of these persons were engaged in trailer hitch or hitch component production, approximately 120 of them were. ³

A union employee first discovered the subcontracting near the end of September, 1975. The employee talked to hitch department superintendent Meacham, who told him that no more work would be subcontracted out and that they would try to bring back some of the subcontracted work. The employee did not notify the union officials of the subcontracting at this time. In December, 1975 there was only one hitch welder working in Department 125 and he was told he was being removed from his job because AMCAR had decided to subcontract the work. This was reported to the union agent who for the first time learned of possible subcontracting and began to try to verify it with the company.

On December 19, 1975, when the subcontracting was verified, the union agent requested employee compensation for loss of work and earnings, and was informed that there would be no...