Bethlehem Steel Corp.

BETHLEHEM STEEL CORP. Bethlehem Steel Corporation (Shipbuilding Depart- ment) and Beaumont Metal Trades Council, AFL-CIO. Case 23-CA-3881 June 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS, KENNEDY, AND PENELLO On June 22, 1971, Trial Examiner Thomas F. Maher issued the attached Decision On Motion To Dismiss in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. The Board has considered the record and the Trial Examiner's Decision on the motion to dismiss in light of the exceptions and briefs and decided to affirm the Trial Examiner's rulings, findings, and conclusions and adopt his recommended Order, as modified below. The Trial Examiner granted the Respondent's motion, made at the conclusion of the General Counsel's case-in-chief, to dismiss the complaint in its entirety on the grounds that the unfair labor practice alleged therein involved a question of contract interpretation which the parties had con- tractually agreed to resolve exclusively through their grievance-arbitration procedures, and that the Charging Party had failed to avail itself of that procedure although the Respondent indicated will- ingness to do so. For the reasons fully set forth in our recent Collyeri decision, we agree with the Trial Examiner that because this dispute involves interpretation of the contract between the parties, and arises from the parties' relationship under the contract, it should be resolved in the manner which that contract pre- scribes. As we said in Collyer, supra, involving facts not unlike those here, the Board is vested with authority to withhold its processes in cases, such as this, where the contract between the parties provides a quick and fair means for resolving their dispute. Accordingly, we conclude that our obligation to advance the purposes of the Act is best discharged by deferral to the contract's arbitral processes. As in Collyer, however, we shall retain limited jurisdiction of this proceeding against the possibility that it is not resolved with reasonable promptness or the arbitration proceeding fails to comply with our standards of fairness established under Spielberg Manufacturing Company.2 REMEDY Without prejudice to any party and without 197 NLRB No. 121 837 deciding the merits of the controversy, we shall order that the complaint herein be dismissed, but we shall retain jurisdiction for a limited purpose. As we noted in Collyer, supra, that decision represented a develop- mental step in the Board's treatment of these problems and the controversy there arose at a time when the Board's decisions may have led the parties to conclude that the Board approved dual litigation of this controversy before the Board and before an arbitrator. We are also aware that the parties herein have not resolved their dispute by the contractual grievance and arbitration procedure and that, there- fore, we cannot now inquire whether resolution of the dispute will comport with the standards set forth in Spielberg, supra. In order to eliminate the risk of prejudice to any party we shall retain jurisdiction over this dispute solely for the purpose of entertain- ing an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purposes indicated in that portion of our Decision and Order herein entitled "Remedy." MEMBER JENKINS, dissenting: For the reasons expressed in Member Fanning's and my dissents in Collyer and cases since then, I would not defer to arbitration, but determine the case on the merits. Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB No 150 2 112 NLRB 1080, 1082 3 Collyer Insulated Wire, supra TRIAL EXAMINER'S DECISION ON MOTION TO DISMISS STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge filed by Beaumont Metal Trades Council, AFL-CIO, on February 11, 1971, against Bethlehem Steel Corporation (Shipbuilding Department), Respondent herein, the Re- gional Director for Region 23 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on April 6, 1971, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a trial was held before me on May 27, 1971, at Beaumont, Texas, where all parties were present, represented, and afforded a full opportunity to be heard. Counsel for the General Counsel presented his case-in- chief with full opportunity to Respondent to cross-examine witnesses. Upon the conclusion of General Counsel' s case- in-chief, counsel for Respondent moved for the dismissal of the complaint in its entirety on the ground that a violation of the Act had not been established upon the evidence adduced, for the specific reason that the collective agreement between the parties introduced in evidence provided the exclusive remedy for the alleged wrongful conduct and that this remedy had not been availed of by the Charging Union Because I entertained serious doubt and uncertainty as to the substance and adequacy of General Counsel's case in the light of the motion before me and because of the reasons advanced in support of it, and in defense of Respondent's right in due process not to be required to enter its defense when such doubt and uncertainty exists, I adjourned the trial for an indefinite period to provide an opportunity for study of the record.' I requested briefs of the parties to assist me in the determination of the issues raised by the Respondent's motion. Briefs have been filed by the parties. Upon consideration of the briefs submitted and the entire record made in this case, in which I assume the veracity of all witnesses appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Bethlehem Steel Corporation, Respondent herein, is a Delaware corporation operating a shipyard in Beaumont, Texas, designated as the Shipbuilding Department. This is the only facility of the Respondent involved in this proceeding. On numerous previous occasions, Respondent has appeared as a party before the Board in proceedings in which the Board has asserted its jurisdiction and has found the Respondent to be an Employer within the meaning of Act.2 Upon the Board's earlier findings and upon my review of the record in this proceeding which discloses no i Counsel for General Counsel argues in his brief to me that by adjourning the hearing sine die upon the close of his case-in-chief after reserving decision upon Respondent's motion to dismiss the complaint in its entirety, I have acted "contrary to all established Board precent" and "contrary to the very Act itself " My obligation, he argues, "even on reserving on Respondent's motion, was to proceed with the hearing, and failing to do so was fundamental error " Sec 102 43 of the Board's Rules and Regulations empowers the Trial Examiner in his discretion, to adjourn a hearing to a later date either by announcement thereof at the hearing , or by other appropriate notice See Resronaire Bedding Company, 164 NLRB 729 In announcing the adjourn- ment of this case sine die, i e without a set date for resumption, I also announced that in the event the motion was not granted and the hearing changes of fact or circumstances concerning the nature and extent of its business, and upon agreement of the parties, I conclude and find Respondent to be an Employer within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted and I accordingly conclude and find that Beaumont Metal Trades Council , AFL-CIO, the Charging Union herein, and referred to hereafter as the Union, and Local No. 753, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, referred to herein as the Carpenters, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Contested Allegations of the Complaint It is alleged that on or about December 21, 1970, and thereafter, Respondent refused to bargain with the Union as the recognized bargaining representative of its employ- ees in a concededly appropriate bargaining unit "by unilaterally, without notice to or consultation with the Union, subcontracting out carpenter unit work to Sabine Insulation Company, a sheetmetal employer, to do carpenter unit work" on a boat in Respondent's Beaumont shipyard. As a consequence, it is alleged that certain named employees in the bargaining unit suffered impair- ment of job tenure and job security by the layoff of carpenters. In its answer, Respondent alleged that historically it had subcontracted the sheet metal work of the kind, character, and size referred to in the complaint to be performed by subcontractors specially equipped, trained, and with proper supervision to perform such work. Respondent further alleged that it did not have the equipment necessary to perform the work referred to in the complaint. It further alleged that the carpenters employed in the bargaining unit were neither trained nor qualified to perform the work contracted. Finally, it alleged that those laid off on or about December 21 were not laid off because of the subcontracting of the work, but because there was no carpenter work for them to perform at that time. B. Facts On or about December 21, 1970, employee Bobby Kyker, the carpenter steward on the job in department 72 of Respondent's facility, observed that sheet metal work was being performed on the dredge, McFarland, by employees of the Sabine Insulation Company. Believing would resume, I would give the pFrties timely notice I have thereby satisfied the letter of the Board's rule In reserving my decision upon the motion to dismiss, it was implicit that it had not yet been determined by me that a case had been proven against the Respondent In such a posture, to require Respondent to then defend himself by proceeding with the trial would violate the basic tenets of jurisprudence and due process that no one is required to defend one's self against a charge that is still unproven I accordingly reject counsel for General Counsel's argument that my granting of an adjournment in such circumstances was fundamental error 2 183 NLRB No 35, 147 NLRB 977; 127 NLRB 727, 111 NLRB 185, 108 NLRB 241 BETHLEHEM STEEL CORP. this work to be that normally performed by employees of Respondent in the bargaining unit, Kyker immediately reported the situation to Donald Tolbert, business repre- sentative of the Carpenters, a member of the Beaumont Trade Council, the Charging Party herein, and a signatory to the collective agreement with Respondent. Tolbert immediately communicated with Harrison K. Jordon, Respondent's representative, and protested the subcon- tracting of the work. In reply, according to Tolbert, Jordon stated that the contract "was silent on subcontracting work," a fact which Tolbert conceded in subsequent testimony and which an inspection of the document in evidence confirms. Tolbert then instructed the assistant business representa- tive of the Carpenters, W. H Carr, to go to the job and observe the work being performed. Carr's inspection of the work on the McFarland being performed by Sabine employees disclosed that it involved the installation of sheet metal wall surface, in sheets 2 feet by 4. These sheets were fastened by spot weld onto metal studding and were held in place by the use of the appropriate brackets, spacers, and metal channels, all of which had been installed previously by Sabine employees.3 On this occasion and on a subsequent visit on September 29, Carr spoke to a number of Respondent's officials on the job to better acquaint himself with the nature of the work being performed by the Sabine employees. Among these were Harry Ritter, Respondent's carpenter foreman, and a Mr. Weaver, Carpenter quarterman, both of whom informed Carr that the Respondent did not have the tool., to do the work. Employee Kyker, the union steward, was questioned extensively concerning the nature of the work being performed by Sabine and the capability of the unit employees to perform it. Much of the work, according to Kyker, was similar to that which he had seen performed by Respondent's carpenters in the past Such jobs, however, would appear to have been infrequent and minimal. Thus, in mentioning jobs he had worked on, he estimated the last one to have been 2 or 3 years previous and, referring to such jobs, indicated that they involved in one instance a 10 by 14 foot ceiling, and another, a single room on a ship being renovated. When asked about tools available on the job to do metal work, Kyker mentioned such tools of the metal trade as electric shears, a sheet metal brake, sabre saws, hack saws, framing squares, and electric drills. Upon further question- ing it appears that other necessary and more complicated tools were not available. Kyker's stated ability to perform the sheet metal work included the cutting of flanges, the recessing of surface areas, and other intricate elements of metal construction and repair. It does not appear from the record that there were presently in Respondent's employ any other except the carpenters who could or did perform the sheet metal work connected with Respondent's operations and it is specifically to be noted that there were no contractual arrangements between Respondent and the Sheet Metal Workers, either directly or through the contract with the Building Trades Council. 3 It is conceded that the insulation work involved on this job was performed by carpenters in the bargaining unit and members of Carpenters 839 C. The Application of the Contract The most recent collective agreement between Respon- dent and the Union contains the following provisions significant to the issue at hand: ARTICLE XVIII RULES FOR ADJUSTMENT OF COMPLAINTS, DISPUTES OR GRIEVANCES Section 1. Should any differences arise between the Company and the Union as to the meaning and application of the provisions of this Agreement or as to any question relating to the wages, hours of work and other conditions of employment of any Employee, there shall not be any walkout on account of such differences, but an earnest effort shall be made to settle them promptly and in accordance with the provisions of this Agreement in the manner hereinafter set forth. Section 2. A grievance is defined as any difference of opinion, controversy or dispute, between the Company and the Union, or between the Company and any Employee with respect to the interpretation, applica- tion or alleged violation of any of the provisions of this Agreement. (a) It is understood that, for the purpose of setting grievances as rapidly and efficiently as possible, an Employee shall discuss his grievance with his foreman or his foreman's designee (not leaderman), who will attempt to settle it to the mutual satisfaction of the Employee and the Company. (b) A Union steward may call to the attention of his foreman any question of employment condition that may arise in his department. After notification by the steward to his foreman, discussion between the steward and the foreman concerned shall be arranged as soon as possible. (c) The foregoing procedure, if followed in good faith by both parties, should result in a fair and speedy solution of most of the complaint arising out of the day-to-day operations of the Yard. If, however, a complaint has not been satisfactorily resolved, it may be presented in writing and processed through the following steps of the Grievance Procedure. Such procedure may be initiated by either party (beginning with Step No. 3 if a grievance arises between the Company and the Union) and shall be applied and relied upon by both parties as the sole and exclusive means of seeking an adjustment of and settling any grievances. s ARTICLE XIX ARBITRATION Section 1. A grievance not settled as set forth in Section 3 of Article XVIII may be appealed to arbitration if either the Union or the Company notifies Local No 753 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other in writing of its intention to take the grievance to arbitration within 30 calendar days of the date of the meeting held in Step No. 3, and such written notice shall set forth the nature of the grievance in appropriate detail for identification purposes and of the name of its member of the Arbitration Board hereinafter men- tioned. If it shall not be so appealed, such grievance shall be deemed to have been settled. Section 3. The Arbitration Board shall be composed of three members to be selected as follows: One representative selected by the Union; one representa- tive selected by the Company; and a third, who shall be chairman, shall be selected from a panel of five disinterested individuals, all of whom shall be impartial persons qualified and willing to act as arbitrators, submitted by the Federal Mediation and Conciliation Service. From the list of names submitted by the Federal Mediation and Conciliation Service, the Company and the Union shall each alternately strike one name until four names have been eliminated and the person whose name remains shall be selected to act as the third arbitrator. Union Representative Tolbert testified that he did not take any steps, including recourse to arbitration, provided by the agreement for the adjustment of complaints. And Assistant Representative Carr testified that in his conversa- tion with Respondent's representative, Jordon, the griev- ance and arbitration procedures of the contract were called to his (Carr's) attention, Jordon stating to him that he would gladly accept a grievance from the Union and take it through the grievance and arbitration procedure. There has, in fact, been no request by the Union or its representative for arbitration of the matter.4 Finally, by way of exploring the reaches of possible settlement of the issue here, I inquired if recourse was ever sought by the Union or any other labor organization, or by the Respondent, to the provisions of Sections 8(b)(4)(D) and 10(k) of the Act which establish mechanics for the determination of disputes arising out of the assignment of work to employees in one labor organization, trade, or craft rather than those in another.5 No such proceedings were ever instituted nor are any contemplated. D. Analysis and Conclusions At the outset it must be noted that the context in which the issue of refusal to bargain arises here is concededly one of harmonious relationship between the parties, a total lack of antiunion motivation for the Respondent's action, the existence of a broad grievance-arbitration procedure, and the fact that Respondent has agreed to waive the preliminaries of that procedure and continue to seek a final solution under the procedures of the ' agreement. In such circumstances as are present here, the require- ment that the grievance-arbitration procedure be followed in preference to the filing and processing of an unfair labor practice charge before the Board is one that has found particular attraction to the courts. Thus in considering the advisability of recourse to arbitration the United States Court of Appeals for the Eighth Circuit stated in American Fire Apparatus Company v. N. L. R. B., 380 F.2d 1005, 1007: The collective bargaining agreement between the Company and the union established a procedure for handling grievances and provided that unresolved grievances would be submitted to arbitration. While this court has held that the grievances-arbitration route is not exclusive and does not eliminate the Board's jurisdiction of an unfair labor practice charge (citing authorities), free collective bargaining would be en- couraged if the parties to such a labor agreement would make use of the arbitration machinery before resorting to the Board, and if discretion were exercised in issuing complaints where the parties had failed to use the machinery they had established. See Raley's Inc. v. N. L. R. B., 143 NLRB 256; Spielberg Manufacturing Co., 112 NLRB 1080. And the Court of Appeals for the Sixth Circuit, considering the refusal-to-bargain aspects of withholding an employee bonus, stated in Beacon Journal Publishing Co. v. N.L.R.B., 401 F.2d 366, 368: This record demonstrates a long-standing collective bargaining relationship (where this subject had not been insisted upon). There is no claim of discriminato- ry purpose or antiunion animus. And the good-faith reliance of the Beacon Journal upon the voluntary character of the bonus is not disputed, however erroneous it may have been as a matter of law. Further, under the Board's proposed order the unions are free to bargain for the unpaid portion of the 1965 bonus. Under similar circumstances NLRA enforcement orders requiring reimbursement have been denied. [Citing cases.] We do not disagree with those courts which have held that Broad remedial powers (including reimbursement orders in somewhat similar circumstances) have been 4 In the course of addressing his motion to dismiss to me, counsel for the Respondent stated that the Company "would have been happy to accept a grievance and would have gone immediately to arbitration " S Sec. 8(b)(4)(D) provides as follows It shall be an unfair labor practice for a labor organization or its agents to engage in, or induce or encourage any individual employee by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal to the course of his employment to use, manufacture, process, transport, or otherwise handle work or any goods, articles, materials, or commodities or to perform any services, or (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce where in any case the object thereof is (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class, rather than to employees in another labor organization or in another trade, craft or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per performing such work Sec. 10(k) provides as follows Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of Section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within 10 days after notice that such charge has been filed , the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute Upon compliance by the parties to the dispute with the decision of the Board , or upon such voluntary adjustment of the dispute, such charge shall be dismissed. BETHLEHEM STEEL CORP. 841 vested by Congress in the special expertise of the NLRB. [Citing cases.] But these broad powers were originally given to the Board to aid in effectuating a national legislative policy of encouraging collective bargaining, rather than to assist it in adjudicating relatively minor disputes between parties with a settled and amicable collective bargaining relationship. And finally in a recent analysis of the issue in Office and Professional Employees International Union, Local 425, AFL-CIO v. N.L.R.B., 419 F.2d 314, the Court of Appeals for the District of Columbia Circuit, after considering broadly the Board's relationship to the arbitration process, and alluding to the Board's willingness to defer to arbitration in certain circumstances stated Where arbitration has not been completed, and certainly where arbitration has not even been begun, different considerations are referred to, at least in Section 8(a)(5) cases as prompting the Board to defer to arbitration. One is willingness to arbitrate. Another is the existence of an unfair labor practice that "turns primarily on an interpretation of specific contractual provisions, unquestionably encompassed by the con- tract's arbitration provisions, and coming to us in a context that makes it reasonably probable that arbitra- tion settlement of the contract dispute would also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act." (Citing Clover Leaf Div. of Adams Dairy Co., 147 NLRB 1410). The Board has dismissed complaints where the contract clearly covers the dispute and there was nothing blocking arbitration. (Citing Vickers Inc., 153 NLRB 561; Flinikote Company, 149 NLRB 1561; Bemis Bros. Bag Co., 143 NLRB 1311; Montgomery Ward and Co, 137 NLRB 4018.) It is not suggested that the foregoing authorities require that this Complaint be dismissed by the Board. Rather, the holdings of the courts have been set forth in some detail to illustrate that there exists considerable doubt and uncer- tainty on the appellate level that deference to arbitration might best serve the ends of improved collective bargaining and administrative efficiency .6 The Board has, under appropriate circumstances, found that it would not effectuate the policies of the Act to issue a remedial order. Thus in Montgomery Ward and Co., 137 NLRB 418, 423, in dismissing an allegation of refusal to bargain it was stated that the parties had included in their collective bargaining agreement a specific grievance procedure providing for final arbitration for all "grievances involving the interpretation or application of the (contract's) provi- sion." Furthermore, the Union kept insisting that the dispute should be settled by the grievance procedure, and the Respondent agreed. Yet, despite the collective bargaining agreement devised by the parties themselves 6 See also N L R B v C & C Plywood Corp, 351 F 2d 224, 227-228 (CA 9) ' See also Sinclair Refining Company, 145 NLRB 732 s Fibreboard Paper Products Company, 138 NLRB 550, enforced 322 F 2d 411, affirmed 379 U.S. 203, in which the Supreme Court held that arrangements which involve "the replacement of employees in the existing for settling such a grievance dispute, the Union chose instead to file the instant charges-thus asking the Board, in effect, to intervene and resolve the dispute. In these circumstances, the Board would be frustrating the Act's policy of promoting industrial stablization through collective bargaining if we were to intervene in this dispute, instead of requiring the Union in this case to give "full play" to the established grievance procedure. More recently in Flintkote Company, 149 NLRB 1561, the Board had occasion to consider the unfair labor practice aspects of a dispute already proceeding through the steps of the contractual grievance procedure practice. There, noting that the Union had filed its charge with the Board rather than proceeding to arbitration as provided by the contracts, and noting the Company's willingness to waive the contractual time limitations to permit the submission of the issue to arbitration, the Board stated as follows (at 1562): Under all the circumstances of this case, including the contractual and grievance and arbitration machinery, the position of the parties both before and during the grievance procedure that a question of contract interpretation was involved, and the Respondent's willingness to proceed to arbitration, we deem it unnecessary to determine whether there has been a violation of Section 8(a)(5) and (1) of the Act. The special circumstances adverted to above impel us to the conclusion that it would not effectuate the policies of the Act to issue a remedial order in this case.? It is the substance of Respondent's motion to dismiss that this case is more properly an interpretation of the terms of an outstanding contract under which a dispute has arisen to determine whether or not carpenters were properly entitled, and indeed equipped, to perform the sheet metal work subcontracted to the Sabine Insulation Company. The provisions of the contract set forth herein (supra), clearly outline the agreed-upon method of settling such disputes. It is readily apparent from statements in the record and from my observation of the witnesses and the parties at the trial that a harmonious relationship exists among them, that the Respondent harbors no animus towards the Union or any of its members or officials, and that at least one of the parties, Respondent, is willing to proceed to the agreed-upon method of solution of disputes. Here the nature of the dispute presented for analysis is the character of the work performed in one isolated instance of subcontracting, where Respondent claims its facilities were inadequate and where the Union claims that the work had been performed before. Nothing in the contract itself precluded the Respondent from subcontract- ing its work, hence we would reach the consideration of such act (as distinct from a "practice") in the posture of an unfair labor practice under the Fibreboard doctrine 8 only after we have explored what the contract did or did not provide, and had examined what Respondent's working unit with those of an independent contractor to do the same work under similar conditions of employment" was a mandatory subject of collective bargaining under Sec. 8(a)(5) and (d) of the Act. The instant contract had no such provision and there is nothing in the record to suggest that at any time during the course of bargaining that such a provision was either (Continued) 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD capabilities were in its day-to-day application of the terms of the contract. Such an interpretation of the contract, it would seem, is the first order of business. The parties have specifically agreed to dispose of differences such as the instant one arising under the contract, stating in the contract that "an earnest effort shall be made to settle [differences] promptly and in accordance with the provisions of the Agreement in the manner hereinafter set forth." I do believe, therefore, that such a provision for the determination of whether Respondent's carpenters could or could not perform the sheet metal work contracted out to the Sabine Insulation Company should be summarily and purposefully ignored. On the contrary, it would, appear to be a determination properly to be submitted to arbitration under the criteria most recently suggested by the Board in Tellipsen Petro- Chem Constructors, 190 NLRB No. 76, wherein it was stated, in language equally applicable to the circumstances presented here: In view of the special circumstances of this case, as disclosed by the record, we agree with the Trial Examiner that the Respondent did not violate Section 8(a)(5) by unilaterally subcontracting its work on the Shell Oil project. In so finding we rely on the following unique factors involved herein; the Respondent's actions were not a willful disregard of the Act; the issue involved has never before arisen in the approximately 20 years of bargaining history between the parties; there is no indication that this issue will arise or be common practice in the future; the bargaining history has been not to give the Union advanced notice of requested or rejected It is not to be suggested , however, that the existence of such a provision is a necessary element of the Fibreboard principle 9 See also Jos Schhtz Brewing Company, 175 NLRB 141 layoffs when a subcontract is terminated; employees who are laid off obtain employment by seeking work on their own with another contractor or through the Union's hiring hall and are not considered part of Respondent's permanent labor force; the impact upon the employees involved appears to have been minimal; and there is no showing that the Union has ever made a request to bargain. Against this background we are persuaded that the policies of the Act would not be effectuated by finding a violation of Section 8(a)(5) on the record before us.9 For all of the foregoing, I conclude and find that General Counsel has failed to establish that upon the facts and record presented the policies of the Act, as delineated by the foregoing holdings of the Board and the courts, and the cases cited therein, would not be effectuated by the finding of a violation of Section 8(a)(5) of the Act. RECOMMENDED ORDER It is hereby ordered, pursuant to Section 102.25 and 102. (h)10 of the Board's Rules and Regulations, Series 8, as amended, that Respondent's motion to dismiss the com- plaint be granted and that the complaint be accordingly dismissed in its entirety. IT IS FURTHER ORDERED that unless, pursuant to Section 102.27 of the aforesaid Rules and Regulations, counsel for the General Counsel files with the National Labor Relations Board a request for a review of the action taken herein within 10 days from the date of this Order the case shall be closed. 10 United Steelworkers of America, AFL-CIO, and Local Union No 2140 (United States Pipe and Foundry Co), 129 NLRB 357, enfd 298 F 2d 873 (C A 5), Cherry Rivet Co, 97 NLRB 1303, fn I