District 50, United Mine Workers, Local 13942 v. NLRB, No. 10056.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtSOBELOFF and BRYAN, Circuit , and MAXWELL
Citation358 F.2d 234
PartiesDISTRICT 50, UNITED MINE WORKERS OF AMERICA, LOCAL 13942, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Allied Chemical Corporation, Intervener.
Docket NumberNo. 10056.
Decision Date14 March 1966

358 F.2d 234 (1966)

DISTRICT 50, UNITED MINE WORKERS OF AMERICA, LOCAL 13942, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

Allied Chemical Corporation, Intervener.

No. 10056.

United States Court of Appeals Fourth Circuit.

Argued December 8, 1965.

Decided March 14, 1966.


358 F.2d 235

Beecher E. Stallard and Alexander B. McMurtrie, Richmond, Va., for petitioner.

Solomon I. Hirsh, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Linda R. Sher, Atty., National Labor Relations Board, on brief), for respondent.

John H. Morse, New York City (Melvyn Freeman, and Cravath, Swaine & Moore, New York City, on brief), for intervener.

Before SOBELOFF and BRYAN, Circuit Judges, and MAXWELL, District Judge.

SOBELOFF, Circuit Judge.

This is a union's petition to set aside a Board order which reversed the trial examiner and cleared the Allied Chemical Corporation of charges that it had violated section 8(a) (5) and (1) of the National Labor Relations Act by refusing to notify and bargain with the union respecting certain subcontracting decisions.

The company began operations at its Bermuda Hundred, Virginia, plant in 1955, and since then has recognized and bargained with District 50 as the representative of its production and maintenance employees.

The maintenance department has grown from three employees in 1954 to 244 employees in 1963. The company engages in maintenance and repair work of three types: 1) routine and preventive maintenance — which is always performed by the company's employees; 2) major construction, such as painting high water towers and specialized electrical work — which is always performed by outside contractors; and 3) scheduled repairs, such as machine improvement and minor construction — which is performed both by company employees and outside contractors. Personnel of the company and of outside contractors have worked side by side on scheduled repairs; and

358 F.2d 236
company employees have sometimes started jobs that were completed by outside contractors, and vice-versa. The third mentioned category of maintenance and repair work is the subject of the controversy

In August, 1963, two months after the latest collective bargaining agreement was signed, the union requested the employer to notify and bargain with it respecting the company's decisions to subcontract this third type of maintenance work.1 The company replied that it would answer questions about subcontracts after they were let but would not notify the union beforehand. Thereupon the union filed charges with the National Labor Relations Board.

Concededly, no employees in the maintenance department have been laid off or discharged as a result of the company's unilateral decisions. It is also undisputed that some employees in that department have performed so much overtime work that they have refused additional overtime assignments. However, the company insists on making its subcontracting decisions without first consulting the employees as to whether they want overtime work, and Maintenance Superintendent Robert Colmer admitted that in the past some employees may have lost overtime because of the subcontracts. Employees fear future loss of overtime, and ultimately loss of jobs as well. This fear, generated by the employer's refusal to disclose its intentions before taking action, is the nub of the issue.

In determining whether the employer has violated its duty to bargain about "wages, hours and other terms and conditions of employment," the Board and the courts must examine the impact of the employer's unilateral decisions on the employee unit involved. The Board noted, and the union concedes that since the establishment of the Bermuda Hundred plant in 1955, the company's practice has been to make a choice, without prior consultation with the union, between assigning this type of work to its own employees and contracting it out. The National Labor Relations Board argues that under Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), and subsequent Board decisions the employer's duty to bargain over a decision to subcontract arises only where the employer purposes to take action which will effect some change in existing employment terms or conditions which adversely affects the employee unit. Westinghouse Electric Corp. (Mansfield Plant), 150 N.L.R.B. No. 136, 58 L.R.R.M. 1257 (1965).2 The Board concluded in this case that there was no evidence of a significant impact on the employees from which it could find that the employer, by unilaterally deciding to subcontract, violated its duty to bargain.

The union contended, and the trial examiner found, that there was a substantial increase in the amount of subcontracting after the execution of the most recent collective bargaining agreement, on June 14, 1963, and that, therefore, the impact on the employees of the company's unilateral decisions to subcontract has been more significant than in the past. This finding...

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14 practice notes
  • Raytheon Network Centric Systems, 25-CA- 092145
    • United States
    • National Labor Relations Board
    • December 15, 2017
    ...190 NLRB 161, 164 (1971). [90] 151 NLRB 718, 720-721 (1965), review denied sub nom. District 50, United Mine Workers of Am., Local 13942, 358 F.2d 234 (4th Cir. 1966). [91] 156 NLRB 350, 351-353, 365-367 & fn. 13 (1965). [92] 154 NLRB 747, 749 (1965). [93] 369 U.S. at 743, 747. [94] DuP......
  • Safeway Stores, Incorporated v. FTC, No. 19325.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 25, 1966
    ...to the Commission. The case was resubmitted to the court en banc and the panel decision sustained with four of our nine judges dissenting. 358 F.2d 234. 366 F.2d 804 In the present proceeding the Commission made two decisions. The first, ordering the petitioners to cease and desist from fix......
  • Fire Fighters Union v. City of Vallejo, AFL-CI
    • United States
    • United States State Supreme Court (California)
    • October 2, 1974
    ...and conditions of their employment. (Cf. District 50, United Mine Workers, Local 13942 v. Page 514 [526 P.2d 978] N.L.R.B. (4th Cir. 1966) 358 F.2d 234.) Similar proposals for union hiring hall arrangements have been held to involve terms and conditions of employment under the National Labo......
  • AMCAR Div., ACF Industries, Inc. v. N.L.R.B., AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 6, 1979
    ...Cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); District 50, United Mine Workers of America, Local 13942 v. NLRB, 358 F.2d 234 (4th Cir. 1966). See also Puerto Rico Telephone Co. v. NLRB, 359 F.2d 983 (1st Cir. 1966), which uses the term "immediate" adverse effe......
  • Request a trial to view additional results
14 cases
  • Raytheon Network Centric Systems, 25-CA- 092145
    • United States
    • National Labor Relations Board
    • December 15, 2017
    ...190 NLRB 161, 164 (1971). [90] 151 NLRB 718, 720-721 (1965), review denied sub nom. District 50, United Mine Workers of Am., Local 13942, 358 F.2d 234 (4th Cir. 1966). [91] 156 NLRB 350, 351-353, 365-367 & fn. 13 (1965). [92] 154 NLRB 747, 749 (1965). [93] 369 U.S. at 743, 747. [94] DuP......
  • Safeway Stores, Incorporated v. FTC, No. 19325.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 25, 1966
    ...to the Commission. The case was resubmitted to the court en banc and the panel decision sustained with four of our nine judges dissenting. 358 F.2d 234. 366 F.2d 804 In the present proceeding the Commission made two decisions. The first, ordering the petitioners to cease and desist from fix......
  • Fire Fighters Union v. City of Vallejo, AFL-CI
    • United States
    • United States State Supreme Court (California)
    • October 2, 1974
    ...and conditions of their employment. (Cf. District 50, United Mine Workers, Local 13942 v. Page 514 [526 P.2d 978] N.L.R.B. (4th Cir. 1966) 358 F.2d 234.) Similar proposals for union hiring hall arrangements have been held to involve terms and conditions of employment under the National Labo......
  • AMCAR Div., ACF Industries, Inc. v. N.L.R.B., AFL-CIO-CL
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 6, 1979
    ...Cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); District 50, United Mine Workers of America, Local 13942 v. NLRB, 358 F.2d 234 (4th Cir. 1966). See also Puerto Rico Telephone Co. v. NLRB, 359 F.2d 983 (1st Cir. 1966), which uses the term "immediate" adverse effe......
  • Request a trial to view additional results

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