Louisiana-Pacific Corporation

796 I)ECISIONS ()OF NATI()NAL LABOR RELATIONS BOARD Louisiana-Pacific Corporation and Lumber, Produc- tion and Industrial Workers, Local Union 3074, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 20-CA-15109 June 22, 1981 DECISION AND ORDER On February 9, 1981, Administrative Law Judge Gerald A. Wacknov issued the attached Decision dismissing this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief in op- position to the exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I We find, in agreement ith the Administrative L.a Judge, that the Respondent was not obligated to bargain about the udeclking of logs from its log deck at its Greenville mill, and placing them in piles prepara- tory to) their being loaded by the subcontractor's employees In making such finding, we note in particular that such subcontracting was COllSist- ent with the Responldent's past practices of hiring subcotntractors to load and transport logs from its Greenville mill to its other mills on all aver- age of four occasions each year, since 1974; that Ahenever such subcon- tracting occurred the Respondent's employees did not uindeck the logs and deposit them in a place accessible to the subcontractor's emnployees for subsequent loading, other than occasionally; that there was no pattern or history of using a composite crew during such subcontractinlg oper- ations; that such subcontracting was econonlically justified since the Re- spondent then contemplated permanently terminating its Greenville mill and transferring its logs; that at the time it subcontracted the work in question, the Respondent anticipated that the unit work of operating the front-end loader (CAT 966) would he needed primarily for cleanup oper ations several hours a day, a fes days a week; that it would not have been economically feasible to hire a unit employee to operate the front- end loader for the sporadic work of undecking certain logs which re- ceived priority in loading after the subcontracting; and that emrnploees Heard and McKinney were not qualified to load logs Moreover, the rele- vant bargaining history shows that the Union in the past had unsuccess- fully sought contract language limiting the established subcontractig practice Westinghouse Ilectri Crpioriorl (,ansfietd Planti. 150 NL RB 1574 (1965). DECISION ST-IATEMENI' OF ITHE CASE GERALD A. WACKNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in Quincy, California, on September 9, 1980. The charge was filed on January 3, 1980, by Lumber, Production and Industrial Workers, Local Union 3074, United Brotherhood of Carpenters and Join- 256 NLRB No. 133 ers of America, AFL-CIO (herein called the Union). C March 31, 1980, the Regional Director for Region 20 the National Labor Relations Board (herein called ti Board) issued a complaint and notice of hearing allegin a violation by Louisiana-Pacific Corporation (herei called Respondent) of Section 8(a)(l) and (5) of the Na tional Labor Relations Act, as amended (herein callec the Act). Respondent's answer to the complaint, duly filed, denies the commission of any unfair labor practices. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and Respondent. Upon the entire record and based upon my observa- tion of the witnesses and consideration of the briefs sub- mitted, I make the following: FINI)INGS OF FACT I. JURISDICTION Respondent is a Delaware corporation with facilities located in California, including a facility located in Greenville, California, where it has been engaged in the operation of a lumber mill. In the course and conduct of its business operations, Respondent annually ships goods and materials valued in excess of $50,000 directly to cus- tomers located outside the State of California. It is ad- mitted, and I find, that Respondent is now, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE ABOR ORGANIZATION INVOI.VED It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II I THE AI.LEGED UNFAIR l.ABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether Respondent unilaterally subcontracted bargaining unit work in violation of Section 8(a)(5) of the Act. B. The Facts Respondent has operated a lumber mill in Greenville, California, since in or about 1974, and has maintained a continuing collective-bargaining relationship with the Union. On or about August 2, 1979, Respondent notified the Union, in writing, that Respondent anticipated perma- nently closing the Greenville mill, which produced two- by-four studs, on or about September 1, 1979, and of- fered to discuss this matter with the Union. Thereafter, representatives of Respondent and the Union met on sev- eral occasions to discuss the mill closure. During the course of one such meeting in September 1979, the Union's representative, Gerald Dunkley, asked what Re- LOUISIANA-PACIFIC CORPORATION 797 spondent intended to do with the "log deck" ' which contained logs totaling some 7,300,000 board feet of lumber. Respondent's safety and industrial relations man- ager, John Marty, replied that he did not know what would be done with the logs upon the cessation of pro- duction operations. Later, in mid-October 1979, it was determined by offi- cials at Respondent's division headquarters that the smaller logs which were located in the Greenville log deck, and which normally would have been processed at the Greenville mill, were to be transferred to another of Respondent's sawmills in Oroville, California; and that the larger logs would be transferred, as they had been in the past, to Respondent's mill in Crescent Mills, Califor- nia. However, Respondent did not advise the Union of this determination. Thereafter, Respondent's log deck employees Robert Heard and John McKinney inquired of Scott Koehler, forester and, in essence, manager of the Greenville mill, about the disposition of the log deck. Koehler explained that the logs were to be transferred elsewhere and stated that the work was to be performed by a subcontractor, Don Howard Logging, Inc. Neither Heard nor McKin- ney made any immediate claim for the work in question, and these two employees, who apparently were the last of Respondent's employees to be released, were laid off on or about October 31 and November 2, 1979, respec- tively. The aforementioned work by Don Howard Logging, Inc., commenced on November 7, 1979, on which date two employees of the subcontractor each worked 3 hours. Thereafter, the work apparently was discontinued until early January 1980, and from that date until about March 11, 1980, about 35 percent of the log deck was removed by the subcontractor's two employees. One of these employees, Jim North, performed some 220 hours of work at Respondent's premises during this approxi- mately 10-week period of time. North testified that using Respondent's log handling equipment; namely, the CAT 966,2 he spent about 70 percent of his time packing or hauling the logs from the log deck and transporting them to a loading area, and about 30 percent of the time load- ing the logs onto the subcontractor's trucks. Thus, North would pack the logs to the loading area with the CAT 966, and place them in three separate piles, according to species and/or length, which were accessible to the knuckle-boom loader, a less mobile type of log loading equipment which was operated by another employee of the subcontractor.3 The knuckle-boom loader operator would then place the logs on the trucks. To a limited extent, North, using the CAT 966, would also load trucks from the piles of logs he had packed from the deck to the loading area. However, most of North's truck-loading work involved packing from the log deck I The logs ere stored in a log deck which consists of rows of logs stacked in a manner that facilitates further handling by various types of log handling equipment 2 The subcontractor leased this piece of machinery from Respondent at an hourly rate 3Sometimes, in the absence of the knuckle-boonl operator, North would operate the knuckle-boom loader and loading directly onto the truck, without first placing the logs in any of the piles in the loading area. The record shows that since 1974, on an average of about four occasions each year, Respondent hired sub- contractors, including Don Howard Logging, Inc., to load and/or transport logs from its Greenville mill to other locations. On these occasions, if Respondent had employees capable of loading logs onto trucks with Re- spondent's equipment, these employees would be utilized to load logs, and the subcontractor's employees would merely drive the trucks. However, there were frequently no such employees with the necessary experience, 4 and from 30 to 50 percent of the time employees of the sub- contractor would both load and haul the logs. In the latter event, employees of the subcontractor used a CAT 966, owned by the subcontractor, to load the logs direct- ly from the log deck (until about 1977, when the subcon- tractor's knuckle-boom loader was thereafter primarily used to do this work) and the only assistance by Re- spondent's employees would involve the infrequent movement of logs to a more convenient place, or to clean up the area after or during the loading operation. Koehler testified that, when he contracted with Don Howard Logging, Inc.. in October 1979, he anticipated that the CAT 966 would be used, at the maximum, sev- eral hours a day a few days a week to remove bark and broken ends and transport some few logs to the knuckle- boom loader. Prior to this time, Koehler had discussed the possibility of using Respondent's employees for the CAT 966 work with an official at Respondent's division headquarters, but upon assuring themselves that Re- spondent had no employees who were qualified to load logs, and that the cleanup work would only amount to about 4 hours' work per week, Respondent did not think this idea was feasible. Koehler later learned, however, after the work had been subcontracted, that the Oroville sawmill initially required a different species of logs from those that were immediately available to the knuckle- boom loader. These particular logs had to be carried by the CAT 966 to an available place for loading by the knuckle-boom loader, thus necessitating the use of the CAT 966 to a much greater extent than originally antici- pated. On January 7, 1980, upon observing the aforemen- tioned work, the Union's assistant business representa- tive, Joe Palazzi, requested and received the November 12, 1979, letter of subcontract from Respondent. On Jan- uary 9, grievances were filed over the work in question by Respondent's two log deck employees who had been laid off, and Business Representative Dunkley phoned Manager John Marty, asked why the Company was re- moving the logs with nonbargaining unit personnel, and claimed the work for unit employees. Marty replied that the claimed work of operating the CAT 966 was of short duration and would necessitate work of perhaps no more than a few hours per day. Thereafter, a grievance meeting was held on January 17, 1980. Various union and management representatives ' The correct I dnlg f logs Iontl trucks necessiltate ia degree of ex- pertise and e perience In irder to maintain the prolper balance, apparelt- 1I in ordcr o pre nit ti iho logs from shifting dlurinlg tranllsprt 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were present. A full discussion of the grievance was held and each party presented their respective positions. Re- spondent remained adamant that, under the circum- stances, the work could be legitimately subcontracted. The work of removing the log deck was subsequently discontinued on or about March 11, 1980, and sometime thereafter, in early April 1980, Respondent advised the Union that it had determined that the Greenville mill would be reopened for the purpose of a different type of production operation. As a result, the unit employees have been recalled to work. C. Analysis and Conclusions The contracting out of bargaining unit work is a statu- tory subject of collective bargaining, and an employer who unilaterally subcontracts such work without having afforded the employees' bargaining representative an op- portunity to discuss the matter violates Section 8(a)(1) and (5) of the Act. Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964). However, the Board in Westinghouse Electric Corpora- tion (Mansfield Plant), 150 NLRB 1574 (1965), has enu- merated certain criteria which should be considered in determining whether an employer may be justified in unilaterally subcontracting work. These factors are as follows: (1) whether the subcontract was motivated solely by economic consideration; (2) whether the sub- contract comported with traditional methods by which the employer conducted its business operations; (3) whether the subcontract did not vary significantly in kind or degree from what had been customary under es- tablished past practice; (4) whether the subcontract had no demonstrable adverse impact on employees in the unit; and (5) whether the union had an opportunity to bargain about changes in existing subcontracting prac- tices at general negotiating meetings. The General Counsel does not appear to maintain that any of Respondent's laid-off employees had the skill and experience to load trucks. Rather, it is contended that the work of undecking the logs and placing them in piles, preparatory to their being loaded by the subcon- tractor's employees, is work about which Respondent was obligated to bargain. The record shows that employees of Respondent had performed the work of undecking logs and loading the trucks of subcontractors to the extent that Respondent had qualified employees to perform this work. When such employees were unavailable, which appears to have been about 50 percent of the time, Respondent subcon- tracted the work. However, when the loading work was subcontracted, Respondent's employees did not, as a part of the loading operation, undeck the logs and deposit them in a place accessible to the subcontractor's employ- ees for subsequent loading except, as the record shows, in very isolated instances. Thus, I find, that there was no historical frequency sufficient to be characterized as a "practice" of utilizing a composite crew for the undeck- ing and loading of logs. Due to the fact that Respondent received instructions to supply various mills with particular species of logs on a priority basis, a decision learned of subsequent to the entering into of the subcontract, the subcontractor's em- ployees found it necessary to obtain logs from the log deck which could not be reached by the knuckle-boom loader, a piece of equipment that was not as mobile as the CAT 966. Thus, the CAT 966 was utilized to bring the logs to within reach of the knuckle-boom loader, and also to load logs about 30 percent of the time. Respond- ent had not previously contemplated this. There is no evidence that had the work in question continued after March 11, 1980, the CAT 966 would have been utilized to the same extent for packing, as distinguished from loading, work. Applying the aforementioned criteria enunciated in Westinghouse Electric Corporation, supra, to the instant facts, I find that, on balance, the contracting out of work herein was not violative of the Act, as alleged. Thus, it is clear that the subcontract was motivated solely by eco- nomic considerations, and there is no contention to the contrary; the subcontract, as initially conceived, com- ported with the manner in which Respondent had previ- ously contracted out its log loading work, and there had never been a composite crew, comprised of employees of Respondent and the subcontractor, to perform compo- nent parts of such work; the subcontract was clearly of a nonrecurrent nature entered into for the purpose of im- plementing Respondent's decision to permanently close its Greenville mill, and as such, particularly considering the limited number of hours per day that an employee of Respondent would be needed to undeck logs, would not appear to have a sufficiently adverse current or future impact upon unit employees;" and the record clearly shows that the parties have had an opportunity to bar- gain, and that in prior contract negotiations the Union has proposed a clause prohibiting subcontracting of any nature, but that the changes proposed by the Union have not been accepted by Respondent' and, as a result, sub- contracting has routinely occurred. Based on the foregoing considerations, I conclude that Respondent's determination to subcontract the work in question without affording the Union7 advance notice or an opportunity to bargain, and its subsequent decision to deny the Union's claim for a portion of the work, was not violative of Section 8(a)(5) and (1) of the Act, and I shall dismiss the complaint in its entirety. See General Electric Company. supra. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 5 See General Electric Company, 240 NLRII 703, 708 (1979): also see Allied Chemical Corporation (VNational Aniline Division), 151 NLRB 718. 721 (1965). wherein the Board states that the detriment to unit employees must be "significant." 6e Howeser, contrary to Respondent's contention, I do not find that as a result of bargaining oer such contract proposals the Union waised its right to object to unilateral subcontracting See Equiabhle Gas (Cmpany, 245 NLRH 2(), 263 (1979). * Whether. under the circunstances, it mana be fairly concluded that bargaining over the work did in fact occur on and subsequent to January 7, 1980. during the course of the grievanlce discussions at a time when the work was in its beginning stages. is an issue not raised by the parties herrinl LOUISIANA-PACIFIC CORPORATION 799 3. Respondent has not violated the Act as alleged. Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 8 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Lahor Relations Board. the find- ()Th) complaint d i d i its The conplain is, dinlihcd in it, cntirey ings, conclusions. and recommended ()rdcr herein shall. a provided iI Sec 102 48 of the Rules and Regulations, be adolpted bhy he Board tld become its findings. conclusions. and O)rder. and ;ll .objectlions Ihereto shall be deemed waised for all purposes