Union Carbide Corp.

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Carbide Corporation , Carbon Products Division, Clarksburg Works and Oil, Chemical and Atomic Workers International Union , Local 3-276, AFL-CIO. Case 6-CA-4191 September 19. 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On October 1, 1968, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, and the Respondent filed a brief in answer to the exceptions and brief of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs. and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders the complaint herein be. and it hereby is, dismissed in its entirety. MEMBER BROWN, concurring: The matters considered in this proceeding, in my opinion. should be disposed of by the parties within the framework of the grievance and arbitration provisions of their current bargaining agreement. For over two decades these parties have maintained a generally amicable bargaining relationship while coping with problems arising from product and operational changes similar to those involved herein. Subcontracting has been practiced by Respondent in various forms in many differing circumstances over the years. and the parties have disposed of problems arising therefrom on a voluntary basis. Where the change was not within the contract's management rights provision, the 'While Member Zagoria also subscribes to the principle set forth in Member Brown's concurring opinion, he agrees with the Trial Examiner that Respondent's subcontracting did not, in any event, constitute a violation of the Act matter has been handled by advance bargaining, while disagreements have been settled through utilization of grievance, arbitration, and postevent bargaining. There is no suggestion that the changes which are the subject of the instant charge were other than economically motivated. There is disagreement on whether some of the changes are within the scope of the management rights contract provision and whether prior notice was required or adequate. However, each was made the subject of a grievance which was carried through the second step of the contract grievance procedure, when the charging party chose a change in forum, and Respondent remains willing to meet and discuss the changes and their effects as a grievance or otherwise. In these circumstances, I believe these matters should be settled through the procedures the parties themselves have voluntarily established. Accordingly, I would dismiss the complaint without deciding the merits of the controversy. TRIAL EXAMINER'S DECISION STATFMFNT OF THE CASE HENRY L. JALETTE, Trial Examiner: This case was tried in Clarksburg, West Virginia on July 31, 1968,' pursuant to a charge, filed on March 18 by Oil, Chemical and Atomic Workers International Union, Local 3-276, AFL-CIO, herein called the Union, and pursuant to a complaint issued on June 10 The issue presented is whether Union Carbide Corporation, Carbon Products Division, Clarksburg Works, hereinafter referred to as Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by subcontracting the work of repairing wooden shipping pallets and dividers, the fabrication of stainless steel bolts. and the manufacture of furnace side blocks. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following:' FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a New York corporation engaged in the production and nonretail sale of carbon and graphite anodes and electrodes at a plant located in Clarksburg, West Virginia. Respondent annually purchases directly from points outside the State of West Virginia, goods valued in excess of $50,000 and annually ships directly from said plant to points outside the State of West Virginia, goods valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of 'Unless otherwise indicated , all dates refer to the Year 1968 'Motions to correct the record filed by General Counsel and Respondent are hereby granted 'Respondent's motion to dismiss made at the close of trial, on which I reserved ruling, is disposed of in accordance with the findings and conclusions herein 178 NLRB No 81 UNION CARBIDE CORP. 505 the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR I ABOR PRACTICES A. Background Since April 1946, the Union has been the certified bargaining representative of Respondent's employees at its Clarksburg plant in a production and maintenance unit Since that time, the Respondent and the Union have been parties to a series of collective-bargaining agreements and there has been only one strike which lasted approximately 10 days The relationships of the parties have been generally amicable and there is no contention that the subcontracting in issue herein was motivated by other than economic considerations. The current agreement has a term from June 26, 1967, to June 25. 1970. It contains a "-Management Functions" clause,' but does not contain any provision dealing specifically with subcontracting The issue has been raised by the Union in past contract negotiations, the last time being in 1962 At that time no agreement was reached to include a provision in the contract prohibiting subcontracting and the Union dropped the matter. However, the negotiations had resulted in Respondent's agreement to a special job classification to cover items about which the Union had complained. In the many years that the Union has been the exclusive bargaining representative of Respondent's employees. the Respondent has subcontracted work which was performed by unit employees or which they could perform For example, for many years Respondent made its own shipping boxes, but in 1961 it discontinued the operation and purchased boxes. Maintenance and construction work has been done by both unit employees and subcontractors. Contractors have been used to install new piping or repair leaks in the water main. Although Respondent employs garage mechanics and helpers to maintain its rolling stock, major repairs are subcontracted. Stainless steel saggars have a welded seam which fails occasionally and repairs are made both by Respondent's own welders and subcontractors. Coke is a basic ingredient of the electrodes manufactured by Respondent, but it must be calcined Respondent purchases both raw and calcined coke. When purchased raw, it must be calcined by unit employees. The surface of electrodes sometimes becomes crystallized and must be "skinned" to permit impregnation. The skinning is done both by subcontractors and unit employees. The same is true in the machining of head electrodes. Although Respondent employs approximately 17 electricians who frequently wind the armatures of electrical motors, on many occasions that work has been subcontracted. Respondent contends that the Union has been aware of the foregoing, and, as pointed out above, the Union complained about subcontracting in the 1962 negotiations In 1961, the Union grieved over the operation of a crane by contractors, but the grievance was denied because the operation of the crane related to the installation of new steam lines and was unrelated to production work or work of any kind normally performed by bargaining unit employees. An Arbitration Panel upheld Respondent, noting that the contract contained no prohibition on subcontracting and that the Union had not objected to the subcontracting of the installation of the steam lines but only to the operation of the crane The gravamen of the instant case is the Respondent's subcontracting of work on three specific items which had been performed exclusively by unit employees. B. The Subcontracting 1 Pallet repair Respondent uses wooden dividers and pallets for the storage and transportation of its product. The pallets are used both for the shipment of goods to customers as well as for intraplant transportation of materials For its intraplant use alone, Respondent employs about 25.000 pallets. most of which are acquired through purchase. Since these pallets are made of wood, they are frequently damaged; however, a certain number can be repaired and salvaged Respondent's witness, William Haller, estimated that 5 percent of the 25,000 pallets were obtained through the salvage and repair of damaged pallets. The current contract contains a classification of pallet repairman and until May 1967 this classification was filled by one man who spent most of his time repairing pallets In May 1967. pursuant to a cost study made by its Industrial Engineering Department, Respondent decided to discontinue the repair of pallets because it concluded that it was more economical to discard broken pallets and purchase new replacements This decision was made and implemented without notice to or consultation with the Union. As a result of the decision, the pallet repairman was forced to bid into some other job classification There is no evidence that he complained to the Union or that the Union was aware of what had happened Thereafter, damaged pallets were destroyed, generally by burning in a dump adjacent to Respondent's plant This procedure continued from May 1967 until January 1968, at which time it was decided to solicit bids for the repair of pallets. The bid by M & M Contractors was at a price less than, or just about, half the cost of a new pallet. The first purchase order was approved on February 19, and the first shipment of repaired pallets was received by Respondent on March 13 Between February 19 and July 26, the contractor repaired 777 pallets and 1,971 dividers at a cost of $932.40 and $1635.93 respectively.' According to the Union, the first notice it had of the subcontracting of the repair of pallets was in late January when a member of the negotiating committee advised Union President Ashcraft that yard personnel had reported to him that pallets were leaving the plant. Thereupon, Ashcraft called John Arnold, assistant plant manager in charge of Industrial Relations. Arnold told him he knew nothing about the matter, but that he would check and call back. According to Ashcraft, Arnold never did return the call. and Ashcraft talked to him in late February, but Arnold still could give him no answer. The next time the issue was discussed was at a March 14 grievance meeting 'Article 11, Section 1 "The Company's right to manage its plants and affairs, to hire, discharge , promote, demote, and direct the working forces is unqualified as long as this right is not used in violation of any provision of this Contract." 'These totals may not be entirely accurate, but they have been computed from exhibits which are not too legible. Since neither General Counsel nor Respondent has totaled the figures , any inaccuracy in my calculations would appear to be of little moment 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Arnold, the issue was first brought to his attention by a union steward on or about February 16 and this was followed by a call from Ashcraft on or about February 18 or 19. Arnold told Ashcraft he would have to check and return to him after he had obtained sufficient information. Arnold testified that within a day thereafter he talked to Ashcraft and told him that the reason pallets were being sent out was that the Company could realize a savings through having pallets rebuilt rather than repairing them with its own employees. According to Arnold, between February 16 and March 14, he and Ashcraft had about six conversations about the pallets, and in each one he told Ashcralt that the Company had decided to have the pallets repaired by M & M Contractors because of the savings. 2. The fabrication of stainless steel bolts Stainless steel bolts consist of rods of 1 inch diameter which are threaded on each end and which vary in length from 6 to 18 inches. These bolts are used in the connection of copper rods in the Respondent's graphite furnace. The job performed by unit employees with respect to the stainless steel bolts consisted in machining about a 3-inch common thread on each end of the bolt. This was done on a pipe threader on a nonscheduled, or as required, basis by employees in various classifications, but principally by hourly rated employees such as copper repairmen and maintenance helpers. According to Respondent, in the summer of 1967 a study was made of its costs to manufacture the stainless steel bolts and it was determined that a vendor named General Machine Company could machine the bolts at an annual saving of $1.500.6 General Machine Company's first bid was dated January 22, 1968, and the first delivery of bolts was made on February 23, 1968. Between February 23, 1968 and July 22, 1968, Respondent received 1,090 bolts which were fabricated for it by General Machine Company at a cost of $1,725.05 Respondent estimated that the fabrication of steel bolts by its own employees required approximately 250 man hours annually. The record does not indicate how long the Respondent had used its own employees to do this work prior to contracting it out. According to the Union, the first knowledge it had that stainless steel bolts were being purchased from General Machine was in late February as a result of a report to Union President Ashcraft from Committeeman Carvelli who, in turn, had learned about the purchase from a storeroom clerk Ashcraft called Arnold. and, as in the case of the pallets, was informed that Arnold had no knowledge of the situation, but that he would check. According to Ashcraft, Arnold never contacted him and the issue was not discussed again until the grievance meeting on March 14. According to Arnold, his first conversation with Ashcraft occurred on or about February 21. Between February 21 and March 14, Arnold testified Ashcraft spoke to him at least 5 or 6 times requesting that Respondent reconsider the decision, and in a conversation on March 11, he requested that it be prepared to give the Union a final answer at the meeting scheduled for March 14 Arnold testified that in every conversation with `This saving did not take into account the saving resulting from the reduced wear on the pipethreading machine which was designed to machine soft iron pipe Ashcraft concerning the bolts and pallets, he went into detail explaining to Ashcraft why the Respondent had made the decisions in question. 3 The manufacture of furnace side blocks Side blocks are used on the sides of graphite furnaces to contain the product during the firing of the furnace which is done at a temperature ranging from 2 to 3 thousand degrees centigrade. From 1942 to the mid-50's, Respondent purchased all its side blocks. Beginning in the mid-50's until about 1963, Respondent made the side blocks in the plant, including mixing its own concrete in 1963, it discontinued the mixing and purchased ready mixed material. As a result, the side block crew was reduced from five to three. There is no evidence that Respondent notified the Union of that decision or that the Union protested. Side blocks were not customarily made by Respondent on a year round basis due to a problem of freezing during winter Respondent estimated that the job required three employees, full time, for about 6 or 7 months Whenever it became time to start manufacture, employees could bid for the three available jobs which are described in the contract as Block Plant Truck Operator, Block Plant Operator, and Head Block Plant Operator. No special skills were required and the crew changed constantly. The last time side blocks were fabricated by Respondent was during the period from approximately May 1966 through October 1967. According to Respondent, it had long been experiencing a gradual deterioration in the life of the side blocks, from 36 bakes per block to 18 bakes. In addition, according to Industrial Engineer Haller, improperly fabricated blocks presented a safety hazard due to the possibility of explosions from air pockets in the block Haller testified such explosions had occurred at the Clarksburg plant and that such an explosion had caused a loss of life in one of Respondent's plants in England. Haller could not specify when any explosion had occurred at Clarksburg. To solve the side block problem, Respondent consulted with professional concrete manufacturers and specifications were developed to attain the conditions desired by Respondent The record does not indicate when these consultations took place, nor when the specifications were prepared. Haller testified that Respondent fabricated blocks according to these specifications using its own employees, but there was no increase in the blocks' bake life. Accordingly, bids were solicited from concrete manufacturers and were received on February 15. The low bidder was Clyde Shrum, a general contractor, who appears to have been contracting with Respondent on various matters for a number of years. The first purchase order was approved on March 6, 1968. The first delivery was made on April 4, 517 blocks were delivered between April 4 and July 15, at a total cost of $42,081. According to Haller, Respondent estimated a $15,000 annual saving by contracting out the work, assuming no improvement in block life. An increase in block life to 36 bakes would represent an additional saving of $40,000 The Union first received notice of the side block developments at a regularly scheduled grievance meeting on March 14. According to Ashcraft, after the discussion of some pending grievances, Arnold told the union representatives that Respondent had gone out of the block business. Arnold explained why and that Clyde Shrum was the contractor. UNION CARBIDE CORP. 507 According to Arnold. he initiated the discussion on side blocks by stating to the Union that ". . . the Company was formulating a decision to purchase side blocks from a vendor rather than manufacture them in the plant " In reply to a question by Ashcraft, Arnold stated Shrum had placed the most favorable bid and would be the vendor. He explained in detail Respondent ' s reasons for the conclusion it had reached. On March 25, the Union filed grievances at the second step over the subcontracting of the three foregoing items. Respondent rejected the grievances. Since March 14, the parties have not met to discuss the grievances which have been held in abeyance pending decision herein. In none of the discussions, either prior to or on March 14 , did the Union suggest alternative courses of action Respondent could adopt to achieve its objectives. Its only reply to Respondent 's statement of position on all three items has been that the Respondent was contracting out bargaining unit work and that there were laid-off employees who could perform the work. The normal complement of production and maintenance employees at the Clarksburg plant is 675. Between July 28. 1967, and September 15, 1967, 134 employees were laid off. Respondent began recalling employees on January 15, 1968, and by the end of January, 59 employees had been recalled , by the end of February, 54 more had been recalled and by March 14, all but 4 had been recalled . Those four were recalled on April 8 Iil. ANALYSIS AND CONCLUSIONS The first issue is whether Respondent did in fact subcontract any of the work here in issue without notice to or consultation with the Union. Respondent contends that whatever obligation it may have had to notify the Union that obligation was fultilled. According to Respondent. the subcontracting was not a fait accompli until: iii the case of the bolts, February 23; the pallets, February 28; the side blocks, April 25. These are the dates on which the first deliveries were made of each item, pursuant to previously validated purchase orders, and Respondent contends that there was no contract by the very terms of the purchase orders until shipment of the goods ordered. Inasmuch as it had discussed the matters with the Union prior to any of the deliveries, Respondent submits it had fulfilled its bargaining obligation. I find no merit to this contention. Whether Respondent had finalized its decision and contracted out unit work before discussing them with the Union does not depend on when a formal contract came into existence. See American Oil Company, 155 NLRB 639, 648. It depends rather on all of the facts of the case, and in the instant case, it is clear that Respondent had finalized its decisions long before the delivery dates on any of the items. In the case of the pallets, there is uncontradicted testimony that in late January or early February, employees were loading trucks with damaged pallets for delivery to the contractor. On February 16, the repair of pallets was requisitioned and the purchase order was approved on February 19. On the basis of these facts, I find that Respondent had "contracted out" the pallet repair work by February 16. There is no evidence that Respondent had notified the Union of its plans, even less its decision , at any time prior to February 16 As to the bolts, the contractor's bid was made on January 22 and the first delivery was on February 23. It is evident, therefore, that the Respondent had contracted out the work some time before February 23. The earliest date given by Respondent of a conversation with the Union on the matter was February 19 when a steward mentioned it to Arnold. The next time it was mentioned was February 21 in a conversation initiated by Ashcraft In order for the bolts to have been delivered February 23, an order must have been issued a reasonable time before that date. I conclude that the fabrication of bolts was contracted out before February 19 and that this action was taken without notice to the Union. As to the side blocks, the first requisition was approved on March 6 and the purchase order validated March 12, by which date I conclude Respondent can be deemed to have contracted out the manufacture of side blocks. There is no evidence that Respondent had notified the Union of the contracting out prior to the meeting of March 14 In short, I find as alleged in the complaint that Respondent contracted out pallet repair work, the fabrication of bolts, and the manufacture of side blocks without notice to the Union and without affording the Union an opportunity to bargain over the decision or its effects on unit employees prior to its decision.' This finding, however, does not dispose of this case Not every unilateral subcontracting of unit work is to be held violative of an employer's obligations under Section 8(a)(5) of the Act In Shell Oil Company, 149 NLRB 305, the Board indicated that the principles governing the subcontracting of unit work set forth in its earlier decisions in Town & Country Manufacturing Co , Inc, 136 NLRB 1002, enld. 316 F.2d 846 (C A. 5), and Fibreboard Paper Products Corp . 138 NLRB 550, enfd. sub nom. East Bay Union of Machinists Local 1304. United Steelworkers of America, AFL-CIO, etc v. N.L R B, 322 F.2d 411 (C.A D C.) affd. 379 U S 203, were not meant to be hard and last rules to be mechanically applied irrespective of the circumstances of the case. Rather the Board stated at page 307, "In applying these principles, we are mindful that the permissibility of unilateral subcontracting will be determined by a consideration of the setting of each case. Thus, the amount of time and discussion required to satisfy the statutory obligation `to meet at reasonable times and confer in good faith' may vary with the character of the subcontracting. the impact on employees, and the exigencies of the particular business situation involved. In short, the principles in this area are not, nor are they intended to be, inflexibly rigid in application." The importance of this approach to subcontracting cases is no better illustrated than in this case. Several of the factors present in this case, if taken singly. could arguably he discounted as a defense to Respondent's 'In submitting that it had fulfilled its obligation to notify the Union of the subcontracting prior to reaching a final decision , Respondent adverts to the testimony of Industrial Relations Manager Arnold that he had discussed the matter of the pallets and bolts with Ashcraft 5 or 6 times before March 14 Ashcraft denied having the discussions described by Arnold, and General Counsel submits he should be credited. My conclusion that the Respondent subcontracted the work in question without notice to the Union is not dependent on a credibility determination Both Ashcraft and Arnold appeared truthful and nothing in the demeanor of either suggested that he was not testifying truthfully. In any event, in none of the conversations did Respondent fulfill its obligation to notify the Union. rather, it is evident from Arnold's testimony and affidavit that whatever discussions he had with kshcraft were merely to explain what Respondent had done. I do not accept Arnold's testimony that he told 4shcraft that Respondent was "considering contracting ' or "formulating a decision" as an accurate representation of the situation existing when he claims to have made such statements 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unilateral conduct; yet cumulatively their presence persuades me that Respondent did not violate the Act, as alleged For example, the fact that the contract contains a management rights clause is not necessarily a defense. Compare The Fafnir Bearing Company, 151 NLRB 332, fn. 1, and General Motors Corporation, etc , 158 NLRB 229, reversed sub nom. V.A. W. v. N L.R B., 381 F.2d 265 (C.A.D.C ). Nor does the fact that the contract contains a grievance and arbitration procedure justify a finding of waiver, Eaton, Yale and Towne, Inc., 171 NLRB No. 73, nor the fact that the Union has been unsuccessful in prohibiting subcontracting through negotiations. American Oil Company, supra, 652. However, each of the foregoing factors is entitled to some weight in determining whether the employer in any given case has failed to fulfill his statutory obligation to bargain. In this case, they tend to support a finding that the Respondent was justified in acting unilaterally. Further support for such a finding is to be found in the Respondent's past practice of subcontracting unit work Such practice may be no defense to subcontracting that represents a departure from, or is dissimilar to. past subcontracting. Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574. In this case, there is testimony that the past practice consisted in subcontracting work for which the Respondent did not have the necessary equipment or the immediacy of its need required that it be subcontracted. Moreover, it appears that the subcontracting did not eliminate job classifications, and unit employees continued to do their share of the same kind of work. Examples of this situation would be the skinning of electrodes, repair of vehicles, carpentry work, repair of buildings, and welding of saggars. The instant subcontracting differs in that it completely eliminated unit work and had the effect of abolishing job classifications described in the contract. Yet, there is some evidence that Respondent had acted similarly in the past. In 1961, Respondent had discontinued the operation of its box shop. In 1963, in the manufacture of the very item here in question, side blocks, Respondent discontinued making its own concrete and purchased ready mix material. As a result, the block crew was reduced from five to three employees. This action was undertaken unilaterally with no evidence of a protest. In short, whatever differences that may exist between the subcontracting here in question and Respondent's past practice, they are not such to warrant a finding that they constituted a significant departure from past practice. In Westinghouse Electric, supra, the Board indicated that another factor to be considered before it will find unilateral subcontracting violative of the Act is whether the action resulted in a "significant impairment" of job tenure, employment security, or reasonably anticipated work opportunities for those in the bargaining unit. What constitutes significant impairment has been left to the refining process of case by case decisions, no formula being given by which one can divine whether in a given case subcontracting has resulted in the required significant impairment. It is noted, however that almost without exception, where the Board has concluded that there was no significant impairment the subcontracting had not involved elimination of job classifications. E.g., American Oil Company, supra, Superior Coach Company, 151 NLRB 189; Fafnir Bearing, supra; Central Soya, 151 NLRB 1691; Westinghouse Electric, 153 NLRB 446. Where the unilateral action consisted in the elimination of a job classification, however, the Board has found a violation even though the change affected only one employee. In the Weston and Brooker Company, 154 NLRB 747, the job of canteen-air compressor operator was abolished and the operator was terminated. In Eaton, Yale and Towne Inc, supra, the employer eliminated the classification of shipping loader and the earnings of the employee in that classification were substantially reduced. In the latter case, the Board did not even mention significant impairment. Despite the foregoing, which certainly appear to have had minimal impact in terms of the number of employees affected, I do not believe that the Board has adopted a hard and fast rule that unilateral subcontracting is violative of the Act whenever it results in the elimination of job classifications. Rather, that fact must be weighed along with all other facts in the case. In both Weston and Brooker and Eaton, Yale and Towne, Inc., the elimination of job classifications was not as a result of subcontracting, but a change in methods of operation. More analogous to this case is General Motors, supra, where a department was eliminated by reason of the subcontracting. Nonetheless, the Board found no significant detriment since the employees were reassigned to other jobs. In the instant case, although there is no contention that any employee was laid off as a result of the subcontracting, General Counsel submits that at the time of the contracting out there were numerous laid-off employees who could have been recalled to perform the pallet, bolt, or block work Granted that such was the case, the facts do not warrant a finding that any of the laid-off employees were not recalled, or that their recall was delayed, because of the subcontracting. The fabrication of bolts was not regularly scheduled or assigned work and was not susceptible to assignment so as to permit recall of a laid-off employee. As to pallet repair, although assigned to one man in the past, it had not provided him with full-time employment e As to the side blocks, although the work had not required any special skills, it was this very lack of skill of the employees assigned to the job in the past that had contributed, at least in part, to the problem Respondent hoped to correct. In this circumstance, a finding that the employees still on layoff as of March 12, none of whom was shown to be skilled for this type of work, would have been recalled but for the subcontracting is at best speculative. Finally, it must be noted that the Respondent has been willing to meet and discuss the subcontracting and its effects, apparently within or without the grievance procedure. On March 14, Respondent explained its reasons for its actions and gave the Union an opportunity to present its position. The Union has not requested any further meetings. I consider this conduct of the Respondent, although belated. to be entitled to some weight in an evaluation of its overall conduct. Hartmann Luggage Company, 145 NLRB 1572 For all the foregoing reasons, it is found that Respondent has not violated the provisions of Section 8(a)(5) and (1) of the Act, as alleged in the complaint, and I will therefore recommend that the complaint be dismissed in its entirety. 'in the view I take of the case, it is unnecessary to analyze the significance of the fact that pallet repair work had been discontinued more than 6 months prior to the filing of the charge herem. UNION CARBIDE CORP. 509 CONCLUSIONS OF LAW the conduct alleged in the complaint. 1. Respondent, Union Carbide Corporation , Carbon Products Division , Clarksburg Works, is an employer RECOMMENDED ORDER engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and 2 Respondent has not engaged in unfair labor practices conclusions of law, it is recommended that the complaint within the meaning of Section 8(a)(5) or ( 1) of the Act by be dismissed in its entirety.