Liquid Carbonic Corp.

LIQUID CARBONIC CORP Liquid Carbonic Corporation and Local 478, Inter- national Brotherhood of Teamsters , Chauffeurs, 'Warehousemen and Helpers of America. Case 22-CA-11483 26 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 30 December 1983 Administrative Law Judge Raymond P. Green issued the attached deci- sion. The Charging Party filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions, a supporting brief, and an answering brief to the Charging Party's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, t and conclusions as modified and to adopt the recom- mended Order. The Respondent and the Union were parties to a contract covering drivers that ran from 11 April 1978 to 31 March 1982 . On 12 February 1982 the Respondent's attorney advised the Union that the Respondent had decided to subcontract bargaining unit trucking work to Chemical Leamon. The Union filed for arbitration on 8 March 1982, charg- ing that the subcontracting violated the collective- bargaining agreement . On 12 October 1982 an arbi- trator found that the Respondent 's subcontracting violated section 1(I) of the contract , which provid- ed: Should the Employer intend to discontinue using his trucks the Employer must arrange for his Employees to be employed by whoever does the pick-up or delivery of said merchan- dise and the provisions of this entire contract i The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings The judge inadvertently stated in sec II,(c), par. 7 that the Onion noti- fied the Respondent that it would like to begin negotiations for a new contract on 4 January 1984 rather than 4 January 1992 The parties had a meeting that the judge dated 2 March and, later, 3 March Although the record is unclear whether the meeting occurred 2 or 3 March, the meeting's date is not critical to the decision We note that, after the judge's decision issued, the Board in Milwaukee Spring Division, 268 NLRB 601 (1984), reversed Milwaukee Spring Doe- sion, 265 NLRB 206 (1982), and overruled in pertinent part Los Angeles Marine Hardware, 235 NLRB 720 (1978), enfd. 602 F.2d 1302 (9th Cir 1979) 851 must be agreed to by whoever takes over the operation. The judge, declining to defer to the arbitrator's decision, found that section 1(I) was an unlawful union signatory clause. The judge then found that the Respondent bargained in good faith about the subcontracting decision and dismissed the 8(a)(5) allegation. Contrary to the judge, we find that section 1(I) is not on its face violative of Section 8(e) of the Act, and "where the clause is not clearly unlawful on its face, the Board will interpret it to require no more than what is allowed by law." Teamsters Local 982, 181 NLRB 515, 517 (1970). Nor do we believe that the General Counsel showed that sec- tion 1(I) as interpreted by the arbitrator is violative of Section 8(e). Consequently, we believe that it is appropriate to dismiss the complaint on the basis of deferral to the arbitrator's award, which expressly considered the issues underlying the complaint's al- legations. 2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER DENNIS, concurring. I concur. I would find, for the reasons the judge stated, that section 1(I) of the parties' contract is an unlawful union signatory clause. Consequently, under Olin Corp., 268 NLRB 573 (1984), the judge correctly declined to defer to the arbitrator's award, as the arbitrator's decision was not suscepti- ble to an interpretation consistent with the Act. I agree with the judge's finding that the Re- spondent bargained in good faith about the decision to subcontract bargaining unit trucking work to Chemical Leamon, and I therefore would find it unnecessary to decide whether the subcontracting decision was a mandatory bargaining subject. 2 See Olin Corp, 268 NLRB 573, 574 (1984) Stanley R. Weilgus, Esq., for the General Counsel. Bray, McAleese, McGoldrtch & Susanin by Robert J. Bray, Esq., for the Respondent. John A. Craner, Esq., for the Charging Party DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me in Newark, New Jersey, on August 2 and 3, 1983. The charge in this proceeding was filed by the Union on March 11, 1982, and a complaint was issued by the Regional Director for Region 22 of 277 NLRB No. 91 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Board on March 15, 1983. In substance, the complaint alleges that about March 31, 1982, the Respondent unilaterally subcontracted out cer- tain work performed by bargaining unit employees (driv- ers) who are represented by the Union. In this regard, the General Counsel posits two alternative theories of violation. First, he argues that the Respondent violated Section 8(a)(1), (3), and (5) of the Act when it engaged in subcontracting during the life of the contract without having obtained the consent of the Union and notwith- standing a provision in the collective-bargaining agree- ment which reads. 1. (I) should employer intend to discontinue using his trucks, the employer must arrange for his em- ployees to be employed by whoever does the pickup or delivery of said merchandise, and the provisions of this entire contract must be ageed to by whoever takes over the operation. In this respect the General Counsel's theory relies, in part, on the rationale of Milwaukee Spring Division, 265 NLRB 206 (1982). It is noted that the rationale of Mil- waukee Spring has never been applied by the Board to a subcontracting case, but rather arose from a situation where a company relocated an operation. Second, the General Counsel contends that even if his first theory is without merit, the Respondent still violat- ed Section 8(a)(1) and (5) of the Act because it failed to give the Union adequate notice of its decision to subcon- tract out bargaining unit work and failed to engage in good-faith negotiations concerning that decision. In this respect, the General Counsel relies on the rationale of Fi- breboard Paper Products Corp. v. NLRB 379 U.S. 203 (1964).' With respect to the Milwaukee Spring theory,the Re- spondent contends that: (1) Milwaukee Spring was wrongly decided and should be overruled. (2) The theory of Milwaukee Spring, even if sustained, is not applicable to the present case because the Re- spondent has not relocated its operations, but rather has subcontracted truckdriving to a third party in an arm's- length transaction. (3) The provision of the contract relied on by the General Counsel, (sec. 1(I)), is null and void pursuant to the provisions of Section 8(e) of the Act because it is a "union signatory clause." As to the General Counsel's alternate Fibreboard theory, it is argued that: (1) The decision to subcontract the hauling of cryo- genic gases was not made to save labor costs and was one which contemplated the cessation of a part of its business operation. As such, Respondent contends that decision bargaining was not required under the rationale of First National Maintenance Corp. v. NLRB, 425 U.S. 66 (1981). (2) The Union waived its right to bargain over the de- cision when it entered into a contract containing section 1(I). However, it is noted that this argument seems to be i It is noted that the General Counsel does not allege that the Re- spondent failed to bargain over the effects of the decision to subcontract a bit disengenuous because the Company is also asserting that the clause, or at least some portion of it, is null and void under Section 8(e) of the Act. (3) Even if the Company had a legal obligation to bar- gain about the decision, it did give the Union sufficient notice and offered to bargain about the decision. It is the Respondent's contention that the Union never availed itself of the offer to bargain and insisted instead, that the Company could not subcontract out the work unless the other Company agreed to recognize the Union and assume all of the terms and conditions of the collective- bargaining agreement. Based on the entire record in this proceeding, includ- ing my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION The Respondent, which is a subsidiary of Houston Natural Gas Corporation, it a Delaware corporation having its principal office and place of business in Chica- go, Illinois. It also has plants or places of business in var- ious of the States including the State of New Jersey. Its business consists of producing, selling, and distributing various types of gases and related products. The parties agreed that annually the Respondent manufactures and ships products valued in excess of $50,000 from the State of New Jersey directly to points located outside that State. It therefore is concluded that the Company is en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is agreed and I find that Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. A. The Operative Facts The business of the Company is the production of var- ious gases. Ancillary to that, the Respondent, for many years has owned or leased trucks and trailers and has employed a work force of drivers and platform men who deliver the gases, in cryogenic form, to the Company's customers. In this regard the gases are cooled to a liquid state and carried in special containers which essentially are large thermos bottles. Historically, Local 478 has represented the drivers and platform employees in two separate bargaining units, one for the employees in the Company's C02 division and the other in Respondent's Industrial and` medical divi- sion. The C02 division was not involved in this case and there currently exists a collective-bargaining agreement covering those employees. The transactions involved the Company's industrial and medical division. More specifically they affected the delivery of cryogenic gases (such as oxygen, argon, and nitrogen) by the Company's drivers. These employees in this division have been represented by Local 478 and LIQUID CARBONIC CORP Local 107, International Brotherhood of Teamsters for many years. The employees represented by Local 478, numbering about 22, were employed in two locations, Harrison and Tremely Point, New Jersey.2 The employ- ees represented by Local 107, numbering about 7, were located in Burlington, Pennsylvania Concerning the Tre- meley Point facility, the space utilized by the Company was rented at a cost of $1,500 per month. In the per- formance of their work, the drivers at Tremeley Point went to the Company's Burlington plant to load their trucks and proceeded north for delivery to the Compa- ny's customers . The employees represented by Local 478 at Tremeley Point and Harrison were covered by a single collective-bargaining agreement which ran for a term from April 1, 1978, to march 31, 1982. According to John Konawitz, a company vice presi- dent, he was advised by his superiors in the summer of 1981 to look into the possibility of contracting out the driving work done at Tremeley Point and Burlington as it was surmised that a trucking company might be able to perform the work at less expense . He then contacted a number of trucking companies and one, Chemical Leamon, made a proposal. As part of Chemical Lea- mon's proposal, it accepted a condition imposed by Re- spondent that it offer employment to all of Respondent's employees who would be affected by the subcontracting. Also, it offered to employ Liquid Carbonic's drivers on the condition that they would be given preference for work on Liquid Carbonic account. Chemical Leamon's offer incorporated certain rates pursuant to I C C. tariffs which, when analysed by Respondent, resulted in an annual cost savings of about $580,000. It should be noted that Chemical Leamon is itself a party to a multiemployer, collective-bargaining agree- ment with the International Brotherhood of Teamsters which is called the Eastern Area Tank Hauler Agree- ment. The bargaining unit, needless to say, is substantial- ly larger than the bargaining unit covered by Local 478's contract with Liquid Carbonic. It was Chemical Lea- rnon's intention to perform the work at its Croyden, New Jersey facility where its employees were covered by a supplemental contract with Local 312 IBT. As of March 1982 there were about 100 drivers on Chemical Leamon's Croyden seniority list but only about 50 were actively employed. Had the employees of Liquid Car- bonic accepted employment at Chemical Leamon's Croy- den facility, it would have been more likely than not that because they would have been integrated into that Com- pany's existing operation, that they would have constitut- ed an "accretion" to the existing bargaining unit which, at Croyden, was represented by Local 312 IBT a After receiving Chemical Leamon's proposal, Konowitz was told by his superiors that a subcontracting arrangement with Chemical Leamon might be a good 2 About January 1982 the, Company consolidated its operation by moving some of its employees from Harrison to Linden, New Jersey, where the employees were represented by Local 807 IBT When a dis- pute arose, the Eastern Conference of Teamsters designated Local 807 as the bargaining representative at Linden 3 Humble Oil Co, 153 NLRB 1351 (1965) See generally Great Atlantic & Pacific Tea Co, 140 NLRB 1011, 1021 (1956), Borg Warner Corp, 117 NLRB 1613 (1956) 853 idea in view of the cost savings. As a result, Respondent retained Robert J. Bray Jr. (who also represents Chemi- cal Leamon), to represent it in connection with the labor aspects of the proposal and to make contact with the Unions affected. In the meantime, Local 478, on January 4, 1984, sent notice to the Company that it would soon like to com- mence negotiations for a new contract to replace the contract which was to expire on March 31, 1982. On February 12, 1982, Bray wrote a letter to Local 478's secretary-treasurer, Seconish, which stated: Because of the determination by LCC [Liquid Carbonic Corporation] that it can no longer eco- nomically or efficiently continue a bulk hauling op- eration, LCC has concluded that it must go com- pletely out of the bulk hauling business and close its Tremly Point facility. LCC has made numerous in- quiries of carriers with bulk hauling expertise as to their willingness to take over these bulk operations After evaluating the responses of these carriers, LCC has determined to utilize the services of Chemical Leaman Tank Lines, Inc. ("CLTL"). The prime reason for this decision is that CLTL is the only unionized carrier willing to offer employment opportunity to the LCC employees who will be ef- fected by this decision. LCC representatives will be in touch with you directly to discuss this decision and the implications thereof on your members. Suffice it to say, howev- er, that LCC intends to abide by its obligations under the law and under the collective bargaining agreement with your local union to the extent that these collective bargaining obligations are legally permissable under the circumstances. However, we are informed that CLTL intends to carry on this bulk hauling operation out of its terminal in Croy- don, Pennsylvania This Croydon Terminal operates under the Eastern Area Tank Haul Agreement and the Teamsters Local 312 Supplement thereto. While this letter should be considered the appro- priate notice under Article 40, "'Change of Oper- ations", I wish to reiterate that the Company repre- sentatives will be willing to meet with you at your earliest convenience to discuss the details of this proposed closing On February 17, 1982, Seconish responded as follows- As you know, we represent the employees at Tremly Point, New Jersey. On February 16, 1982, Local 478 received a letter from an attorney, Robert J. Bray, Jr., purporting to represent Liquid Carbonic Corporation. The contents of his letter, which advised us that Liquid Carbonic Corporation had determined to close the Tremly Point facility and sub-contract the transportation of bulk industri- al-medical cryogenic gas through Chemical Leaman Tank Lines operating out of Croydon, Pennsylva- nia, came as quite a shock to us because in all the conversations which had ensued over the partial closing of Harrison and the consolidation of that 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminal, along with the New York Terminal into the Linden Terminal, it had never been mentioned that the Tremly Point operation was in jeopardy of being closed or the work performed therein being sub-contracted. In point of fact, the Union does not believe that the Company has acted in good faith in any sense of the word by springing this news upon the Union without any advanced notice and without any effort to bargain over this action. Moreover, the Union has serious doubts and reservations as to whether or not this action is being taken in order for Liquid to rid itself of Local 478 by taking advantage of a much inferior collective bargaining arrangement through Chemical Leamon Tank Lines. In short, we have serious doubts as to whether or not the reasons stated by Mr. Bray, namely, that Liquid can no longer economically or effectively continue a bulk haul operation is a truthful or valid reason. Local 478 has no intention of allowing Liquid Carbonic Corporation to sub-contract out Tremly Point bargaining unit work and is prepared to take whatever steps are necessary to prevent this act from occurring, including submission of the issue to arbitration. Moreover, we are convinced tha the failure of the Company to bargain with the Union over this decision is a violation of the National Labor Relations Act. See, Fibreboard Paper Products Corp. v. NLRB., 379 U.S. 203, 85 S.Ct. 398 (1964). This notification coming but approximately 45 days prior to the expiration of the current collective bar- gaining agreement is further indication, in our opin- ion, of the bad faith of Liquid. Finally, we are pre- pared to file unfair labor practice charges to support our view that the action of Liquid is motivated by its desire to rid itself of the Local 478 Contract in favor of a much cheaper collective bargaining ar- rangement, evidenced by the Local 312 Supplement to Eastern Area Tank Hauler Agreement and the failure to, at any time, mention any economic dis- tress connected with Tremly Point. If anything, Liquid gave Local 478 the impression that Tremly Point was a valid (profitable) operation. Accordingly, we suggest that no action be taken by Liquid and that you contact me to arrange for suitable meetings to discuss this issue, as well as other contract demands. If no sub-contracting occurs during those negotiations, then, of course, there is no need for us to take reciprocal action. Finally, we would appreciate your advising us if Mr. Bray represents Liquid Carbonic and is author- ized to act on their behalf so that we may corre- spond with him directly in the future. If he is not counsel to Liquid Carbonic, we would appreciate your so advising. On February 19 the Respondent by its regional manag- er, John M. Burtnick, replied to the Union's letter of February 17 as follows: This letter is to acknowledge receipt of your letter of February 17, 1982 to Mr. Konowitz. First, please be advised that Mr. Robert Bray does indeed represent Liquid Carbonic Corporation in the matter of the proposed closing of the Tremely Point facility. Second, as Mr. Bray's letter stated, the Company attempted to contact you on Friday, February 12th and again on Tuesday, February 16th for the pur- pose of setting up a meeting to discuss this decision with you and the implications on your members. Please contact the writer or John Konowitz upon receipt of this letter to set up a meeting for discus- sions If you feel the need to discuss this matter with Mr. Bray directly, he can be contacted at (215) 667-7080. On February 23, a meeting was held in Newark, New Jersey. The Union was notified that the Company was contemplating subcontracting the driving work at Tre- meley Point to Chemical Leamon. Although the Compa- ny asserted that this would result in substantial cost sav- ings, no specific figures were given at this time. The Union was also told that its drivers would be offered em- ployment by Chemical Leamon at the Company's Croy- den facility and that insofar as the Liquid Carbonic work, they would be given first preference. The Compa- ny informed Local 478 that Chemical Leamon's employ- ees were represented by Local 312 IBT and that if the employees of Liquid Carbonic accepted such employ- ment they would therefore be represented by Local 312. Although being unaware of the terms and conditions of the Local 312 contract, Local 478's representatives claimed that Local 312's contract was inferior to their own. They further expressed their opinion that in view of section 1(I) of the contract, Respondent could not subcontract the work. Toward the end of the meeting, Seconish (Local 478's secretary-treasurer), suggested that another meeting take place and that Local 107 be brought in, in view of the fact that they, too, would be affected by the Company's proposed course of action. (As noted above, Local 107 represented about seven drivers located at Respondent's terminal in Burlington, Pennsylvania.) It is noted that although Local 478's at- torney, Craner, expressed his opinion that the Company presented the decision to subcontract as a fait accompli, he acknowledged that those words were never expressed by any company representative. Indeed the record does not reveal that such words or similar words were used by the Company. On March 2, a meeting was held in Bordentown, New Jersey, attended by representatives of Local 478, Local 107, and Respondent. Bray opened the meeting by stat- ing that he wanted to discuss the transfer of work from Liquid Carbonic to Chemical Leamon and that he wanted to see if it could be accomplished without a legal mess. He stated that the Company estimated that the sub- contracting would save about $600,000 per year and set forth some of the details as to how that cost savig would be obtained. According to Craner, the Unions were told that they would have to match the $600,000 in order for the Company to reconsider its decision. However, Konowitz asserts that he did not state that the Unions LIQUID CARBONIC CORP. had to match the $600,000 figure, but merely asked the Unions to present some alternatives. At the March 3 meeting Local 478's representatives again expressed the opinion that Chemical Leamon's labor contract was inferior, although the record shows that they did not yet have a copy of that contract, and were not at this time, familiar with it. The Company's representatives countered with their opinion that the Chemical Leamon's contract was comparable to Local 478's contract. Notwithstanding the claim by Local 478 that Chemical Leamon's contract was inferior, the testi- mony of Seconich and Craner indicates that their objec- lion to the subcontracting was not really related to any differences in the terms of the collective-bargaining agreements, but rather was based on their concern that Local 478 would lose the right to represent the drivers in question. Thus, their principal position, as expressed at this meeting and at the hearing, was that their basic con- cern was to continue to represent the drivers and that accordingly Liquid Carbonic could not subcontract the work to Chemical Leamon unless that Company recog- nized Local 478 and assumed the contract between Local 478 and Liquid Carbonic. Towards the end of the meet- ing, Local 478 handed its contract proposals (dated Feb- ruary 26) to the Company. Among these proposals was one, at item 13, which read, "No subcontracting out of bargaining unit work." On March 4, 1982, Bray wrote a letter to Seconish stating: The purpose of this letter is to confirm several subject areas which were discussed during the joint negotiations conducted by and between Local 478, Local 107 and the Liquid Carbonic Corporation on March 3, 1982. During the course of these joint negotiations, Liquid Carbonic made reference to certain date which indicated that the company could potentially realize an approximately $580,000 per year reduc- tion in operating costs by utilizing a common carri- er to provide such transportation services to Liquid Carbonic. The company reiterates is offer to Local Union 478 that it is willing to disclose, in confidence, the underlying information from which the company had made its cost reduction projections based on the utilization of a common carrier. In that time is of the essence, please advise us at your earliest convenience if you wish to review this data. Since we also attempted to discuss the possible alternative projections for an orderly transition of this work to Croyden, we wish you would recon- sider your refusal to discuss these issues. Unless the unions can present meaningful alternatives to the company's proposed use of Chemical Leaman, the target date of March 15, 1982 yet remains. Also, Liquid Carbonic must take issue with the position that Local 478 took at the meeting on March 3 when you and Mr. Craner advised the company that the only subcontracting the local will negotiate or allow is Liquid Carbonic's subcon- 855 stracting to a carrier that will recognize only Local 478 The company will make available for your mem- bers' review on Monday March 8, 1982, copies of the Eastern Area Tank Haul Agreement and any other related documents at those depos affected by this proposed change. Liquid Carbonic will be agreeable to discuss fur- ther with you the above subject areas at the earliest possible time. On March 10 Konowitz suggested to Seconish that the contract be extended beyond the March 31 expiration date. He also suggested that the Company's March 15 deadline for subcontracting also be extended. Seconish agreed. However, in the afternoon, the Union presented Konowitz with an extension agreement which Konowitz found to be objectionable. In essence, the Union, fearing the possible consequences of the no-strike clause in the contract, proposed that it the contract was extended it nevertheless could be immediately terminated when and if the Company subcontracted out the work. According to Konowitz, it was on this date and after the above- noted meeting, that the Company finalized its decision to subcontract the work to Chemical Leamon. On March 11 Konowitz wrote to Seconish as follows- Confirming our meeting of yesterday, it is appar- ent that the Union has no viable alternative to our proposed termination of bulk hauling and the trans- fer of this work to Chemical Leaman at its Croydon depot. As you stated at the meeting yesterday, attended by yourself, your attorney, Mr. Craner, Mr. Burt- nick and myself, the Union cannot offer any eco- nomic concessions which would even approach the $50,000 a month savings that the Company antici- pates obtaining by having Chemical Leamon haul its bulk product. You also took the position that unless the Com- pany agreed to your demands for the extension of our agreement, no extension would be allowed. Since you have also offered no other viable alter- natives and even further indicated that you had none or agreed to extend the present agreement, status quo, the Company cannot help but conclude that pursuing Chemical Leaman for hauling its bulk product it is the only economically feasible alterna- tive. We have, therefore, concluded that the date of March 17 to transfer this work must be chosen We have, therefore, posted at noon this day, the attach- ments. As stated therein, those employees wishing to transfer to the Croydon terminal should so indi- cate it no later than Monday, at noon, March 15, 1982. Also, with this attachment, we have included a summary of the Local 312 contract which we pre- sented to you at yesterday's meeting We would appreciate the opportunity to discuss the circumstances of this transfer and any conse- quences thereof'at your earliest convenience Please 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contact me or John Burtnick so that the same may be arranged Also on March 11, the Company posted a notice for its employees, which in pertinent part read as follows: 1. As you may have heard from your Local Union, Liquid Carbonic has made the determination to dis- continue its participation in the transportation por- tion of the bulk industrial-medical cryogenic gas hauling operation at the Tremley Point facility on March 16, 1982. 2. Chemical Leaman Tank Lines, Inc., an interstate common-carrier, has been selected by Liquid Car- bonic to perform this bulk hauling service beginning Wednesday, March 17, 1982. Chemical Leaman, one of the largest tank haulers in the country, has also agreed to offer employment opportunity to the Liquid Carbonic employees who are affected by this decision. 3. The work in question will be performed by Chemical Leaman out of its Croydon, Pennsylvania, terminal. 4. Chemical Leaman has agreed to continue for you the terms and conditions of your present collective bargaining agreement to the extent legally permissi- ble until its expiration on March 31, 1982. Effective April 1, 1982, all employees will be paid in accord- ance with the terms and conditions of the collective bargaining agreement covering the Croyden termi- nal. 5. The employees at Chemical Leaman's Croydon terminal, are represented for purposes of collective bargaining by Teamsters Local 312. Chemical Leaman and Local 312 are party to the Eastern Area Tank Haul Agreement and Supplement there- to. The Agreements are available for your review in the office. Also available for review will be the Health & Welfare and Pension Benefit Booklets out- lining the plans under which you will be covered. 6. All employees wishing to avail themselves of em- ployment opportunity with Chemical Leaman, should indicate that preference by signing this notice on the spaces below or returning the at- tached signature sheet to a Company supervisor. Failure to sign this notice or to turn in the attached will indicate your non-interest in following this work. Of course, you will be offered the opportuni- ty to avail yourself for employment with Chemical Leaman in accordance with your present Company seniority at Liquid Carbonic for the purposes of hauling Liquid Carbonic bulk products. 7 We have been advised that Chemical Leaman in- tends to use those employees who avail themselves of this opportunity to work for Chemical Leaman on a "House Account" basis. That is, you will be given the opportunity to work on this Liquid Car- bonic work in accordance with your current Liquid Carbonic Company seniority. You will, in addition, be given credit by Chemical Leaman for your Liquid Carbonic years of service for vacation bene- fit purposes. 8. If you do not wish to avail yourself of the oppor- tunity to work for Chemical Leaman, you may remain on the seniority list with Liquid Carbonic under the terms of your present collective bargain- ing agreement. 9. This opportunity to work for Chemical Leaman will be offered on a one-time basis. You will have no other future claims on this work if you do not indicate your intention to work for Chemical Leaman prior to the removal of this notice. 10. This notice posted on Thursday, March 11, 1982, will remain available to employees for signa- ture until noon on March 15, 1982, at that time, the notice will be removed from the bulletin board. 11. All employees who have signed the notice will be contacted by T. Raftery of Liquid Carbonic and advised to call to appropriate representative at Chemical Leaman. You will then be given instruc- tions and full details as to the time and place of work including all other pertinent information. On March 16 a contract was executed between Chemi- cal Leaman and Liquid Carbonic and on March 17, Chemical Leaman began doing the work. On the Union's instructions to its members, none of the employees repre- sented by Local 478 applied for positions at Chemical Leaman. However, the record shows that some or all of Respondent's drivers at Burlington, represented by Local 107, did obtain jobs at Chemical Leaman. Thus, on March 17, Chemical Leaman began doing the work, pur- suant to the subcontracting arrangement, using the former employees at Burlington and its own drivers. As noted above, at this point, Chemical Leaman at its Croy- den terminal had about 100 drivers on its seniority list and about 50 drivers who were actively employed. Regarding the subcontracting arrangement, the record shows that Chemical Leaman used its own tractors, but that the trailers used continued to be owned by Liquid Carbonic.4 Other than the purchase of tires from Re- spondent, Chemical Leaman did not purchase any other assets from Liquid Carbonic. The record also shows that subsequent to the subcontracting, Liquid Carbonic as- signed three employees to Chemical Leaman's Croyden facility as clerks and dispatchers. Their jobs were to re- ceive phone calls from Respondent's customers and to dispatch the trucks handling Respondent's accounts. As a result of the subcontracting, the Tremeley Point facility was closed However, Respondent's Harrison terminal remained open and the employees there continue to be represented by Local 478. On March 17, Local 478 commenced a strike against Respondent to protest the contracting out of the work to Chemical Leaman and to protest the Company's breach of the contract which, as noted above, requires Respond- 4 Prior to the subcontracting, Liquid Carbonic leased most of the trac- tors it used The cost of leasing a tractor is about $2000 to 52500 per month LIQUID CARBONIC CORP 857 ent to secure from any company doing the pickup or de- hLvery of Respondent's goods, not only to offer jobs to the employees but also to assume all the terms of the col- lective-bargaining agreement. -In response to the strike, the Respondent obtained a restraining order from a U.S. district court based on the assertion that the Union was breaching the no-strike clause of the contract. However, when the contract expired on March 31, the Union rec- ommended its strike on April 1. Also, as noted below, the Union filed for arbitration regarding the subcontract- ing arrangement with Chemical Leaman. Subsequently, the Company filed an unfair labor prac- tice charge in Region 4 of the National Labor Relations Board, alleging that Local 478, by seeking to enforce section 1(I) of the contract, was violating Section 8(e) of the Act.5 In essence, the Company asserted that section 1(I), as written and as sought to be applied by the Union, was a "union signatory" clause rather than a "union standards" or "work preservation" clause. However, by letter dated May 11, the Regional Director for Region 4 (based on a General Counsel" Advice Memorandum dated April 16, 1982) dismissed the Company's charge.6 In per- tinent part, the dismissal letter read: As a result of the investigation, I find that the charge lacks merit. The clause alleged to violate Section 8(e) of the Act reads as follows. Should the Employee intend to discontinue using his trucks the Employer must arrange for his Em- ployees to be employed by whoever does the pick-up or delivery of said merchandise and the provisions of this entire contract must be agreed to by whoever takes over the operation. It was concluded that this clause protects the jobs and contract conditions of the unit employees in the event of a transfer of operations, and is therefore a lawful, primary, work preservation type clause. Harris Truck and Trailer Sales, Inc., 224 NLRB 100 (1976); Bader Warehouse Inc, 225 NLRB 609 (1976); Lone Star Steel Co., 231 NLRB 573, affirmed on this point, 639 F.2d 545 (10th Cir. 1980); Amax Coal Co., 238 NLRB 1583, affirmed on this point, 614 F.2d 872 (3rd Cir. 1980), affirmed in other re- spects, 453 U.S. 322 (1981), 107 LRRM 2769 (1981). If the clause operates as intended, the signatory will subcontract to an employer who will hire the dis- placed employees. That subcontractor would then have a lawful collective bargaining relationship Sec. 8(e) in pertinent part reads as follows It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or im- plied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered, into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void There' are two exceptions to See 8(e) relating to the garment and con- struction industries These, however, are not relevant to the present case 6 In certain cases, particularly those involving complex or novel issues, the Boaid's regional directors may seek advice from the General Coun- sel In this respect, there is an Advice Section in the General Counsel's office with the Union The fact that the clause operates to disqualify as a subcontractor an employer like Chemical Leaman because that employer, as a prac- tical matter, cannot fulfill the conditions of the transfer does not render secondary an otherwise lawful primary clause. Accordingly, I am refusing to issue Complaint in this matter. In connection with the 8(e) charge, because the Gener- al Counsel had refused to issue a complaint on that charge, I am precluded from issuing any type of order against the Union as the General Counsel has exclusive discretion in issuing unfair labor practice complaints.? This does not mean, however, that I am bound to agree with the General Counsel's interpretation after hearing record testimony, particularly where the clause in dis- pute is a basic element of the General Counsel's theory of violation and where the Respondent asserts, by way of defense, that the clause as applied is null and void. The preclude the Respondent from asserting this defense would be tantamount to allowing one party to the pro- ceeding (the General Counsel) to unilaterally and with- out affording the benefit of a hearing or judicial determi- nation, to preclude the other party' s defense . Such a con- clusion would, in my opinion, be an anomaly and would be contrary to the principles of due process." I should note here that notwithstanding the General Counsel's conclusions (as set forth in the May 11 dismis- sal letter), that sec. 1(I) "protects the jobs and contract conditions of the unit employees . . and is therefore a lawful primary, work preservation type clause," the testi- mony of the Union's witnesses was that their principal objective was to secure recognition from Chemical Leaman in a separate unit of those employees of Liquid Carbonic who would be transferred from Tremley Point to Chemical Leaman's payroll. Although at various times local 478's representatives asserted that Chemical Lea- man's labor agreement was inferior to Local 478's, the fact is that it was not until a much later date that Local 478 became aware of the terms and conditions of Local 312's contract. Moreover, the testimony of Craner con- vinces me that Local 478 was not really concerned at all with any purported differences between its contract and Chemical Leaman's contract. Rathei, his testimony makes it clear to me that the Union's sole concern was to maintain its status as bargaining representative. Further, it would be hard to argue that Local 478's intention in enforcing section 1(I) was to preserve the jobs of the Tremley Point employees in view of the fact that pursu- ant to arrangement between Liquid Carbonic and Chemi= cal Leaman, all of those were offered jobs by the latter r Although the Board generally has exclusive jurisdiction over unfair labor practice cases (and thereby preempting other forums), there are a limited number of situations where courts have current jurisdiction Sec. 303 of the Act enables a company to file a suit for damages (but not for injunctive relief), against unions for violations of Sec. 8(b)(4) of the Act It therefore is possible for a company to bring a Sec 303 action contend- ing that a union is illegally enforcing an 8(e ) agreement because Sec 8(b)(4)(A) of the Act prohibits unions from engaging in certain types of conduct (including strikes), for an object of requiring a company to enter into or reenter into an agreement prohibited by Sec 8(e) of the Act 8 Food & Commercial Workers Local 1063 (Heaniman Enterprises), 249 NLRB 372 (1980) 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company with preference in assignment to the work on Liquid Carbonic account. In view of the above, it is plain to me tha the only objective that Local 478 had in seeking to enforce section 1(I) was to obtain recognition from Chemical Leaman and for that Company to assume all of the terms and conditions of the Union's contract with Liquid Carbonic. As such, it would seem to me that Loal 478 complaince in an effort to preserve jobs or union standards. It is also noted that throughout the conversations, meetings, and correspondence between Local 478 and the Company, the Union never did offer any alternatives to the subcontrating decision, despite being asked to do so. To be fair, it also is true that the Company did not suggest any specific areas where the Union might offer concessions in orde rto retain the work. However, it is clear that absent a showing that the Company was losing money by virtue of its truckdriving operations, the Union did not intend to make any contractual conces- sions. As noted above, at some point after March 17, the Union filed' for arbitration regarding the fact that Liquid Carbonic had subcontracted to Chemical Leaman.9 Hearings were held on June 9 and July 1, 1982, and Ar- bitrator Morrison Handsaker issued his decision and award on October 12, 1982. His award was as follows: The Arbitrator finds that the Company violated the agreement between the parties when its trans- ferred the trucking work on March 17, 1982 from Tremley Point to the Chemical Leaman Corpora- tion. The employees who would, under the terms of the agreement, have been employed at Tremley Point from march 17, 1982 to March 31, 1982, had it not been for the subcontracting which the Com- pany did, shall receive back pay for the period from the transfer until March 31, 1982, when the agree- ment between the Company and the Union ex- pired. 10 Subsequent to the award, the Company filed a suit in the U.S. District Court of New Jersey, seeking to set aside the award, one ground being that the clause en- forced by the arbitrator was null and void under Section 8(e) of the Act.' i That matter is still pending. B. Analysis The present case essentially involves a situation where the Respondent, during the midterm of its agreement with Local 478, subcontracted out certain truckdriving work to another company (Chemical Leaman), thereby resulting in the close of its Tremley Point facility where the employees were represented by the Union. The moti- vation for this subcontracting was economic, inasmuch as the prices offered by Chemical Leaman were simply 9 On April 30, 1982, the Regional Director held in abeyance the pro- ceedings in the instant case pending arbitration This was done pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971). io It is noted that the arbitrator explicitly refused to pass on the unfair labor practice issues Therefore I shall not defer to his decision Surbur- ban Motor Freight, 247 NLRB 146 (1979) 11 Also the Company sought damages pursuant to Sec. 303 of the Act lower than the cost incurred by Liquid Carbonic in doing the work itself. Although I do not believe that the Respondent's intentions in subcontracting was to avoid its collective-bargaining agreement with Local 478 per se, the result was basically the same as it was essentially the cost of labor which Respondent incurred in maintain- ing the truckdriving operation. In any event, it cannot be said that the General Counsel has proven that Respond- ent has manifested any animus toward Local 478 or any other labor organization. Indeed, after the Tremley Point facility was closed, Local 478 and Respondent entered into a new contract on behalf of the Harrison employees who were, prior to March 31, 1982, part of the bargainin unit with the Tremley Point employees. The record also reveals that pursuant to the contract between Liquid Carbonic and Chemical Leaman, the em- ployees of Respondent who were affected by the subcon- tracting were offered jobs with Chemical Leaman with preference over the latter's own employees for work done on Respondent's account. It was intended, howev- er, that any employees of Liquid Carbonic who accepted employment at Chemical Leaman would be integrated into that Company's operations at Croyden and would therefore be represented by Local 312 because that Union was the existing collective-bargaining representa- tive at Croyden. One of the theories offered by the General Counsel and the Charging Party is that because the subcontract- ing occurred during the life of the collective-bargaining agreement and because that agreement contained section 1(I) (described above), Respondent could not engage in the subcontracting unless, pursuant to that contract pro- vision, it obtained Chemical Leamon's assent to be bound by Local 478s contract or in the absence of that condi- tion, on Local 478's consent. They argue that pursuant to the rationale of Milwaukee Spring Division, 265 NLRB 206 (1982), the Respondent's action was, in effect, a uni- lateral modification of the existing collective-bargaining agreement . Thus, in their view, it is irrelevant whether the Company offered to bargain about the decision to subcontract because under Section 8(d) of the Act, nei- ther party to an extant collective agreement is required "to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provi- sions of the contract." The Respondent for its part contends (1) that Milwau- kee Spring should be overruled; (2) that its rationale is applicable only to relocation cases and not to subcon- tracting cases; and (3) that section 1(I) of the contract, alleged to have been breached, is a "union signatory clause" and is therefore null and void under Section 8(e) of the Act. As to point (3), the Company asserts that by making arrangements with Chemical Leamon for the em- ployment of Respondent's employees with retained se- niority on Respondent's account and with the contrac- tual wages and benefits guaranteed until the expiration of Local 478's contract, that it fulfilled its contractual obli- gations to Local 478 to the extent permissible by law and therefore did not unilaterally modify the contract. Al- LIQUID CARBONIC CORP. 859 though it concedes that it breached section 1(I) to the extent that it did not and could not obtain Chemical Lea- mon's agreement to recognize Local 478, it argues that this condition was unlawful. In Los Angeles Marine Hardware Co., 235 NLRB 720 (1978), enfd. 602 F.2d 1302 (9th Cir. 1979), the company, during the midterm of its collective-bargaining agree- ment, relocated its unionized facility and thereafter re- fused to recognize the union or apply the contract to the new facility. The administrative law judge, in an opinion adopted by the Board, concluded that the decision to re- locate was not motivated by antiunion reasons and was not intended "as a means of getting rid of the Union." He did find, however, that coupled with the fact that the company was encountering economic difficulties, the re- location was motivated by a desire to escape from the economic obligations imposed by the labor agreement. In finding that the company violated the Act, the judge stated: Under Section 8(d) of the Act, no party to a col- lective-bargaining agreement can be compelled to discuss or agree to a midterm modification of a col- lective-bargaining agreement, and, accordingly, a proposed modification can be implemented only if the other party's consent is first obtained. Nassau County Health Facilities Association, Inc., et al., 277 NLRB 1680, 1683 (1977), and cases cited therein. The fact that the parties have bargained to impasse regarding the matter does not serve to change this result. The Boeing Company, 230 NLRB 696, 700 (1977), and cases cited therein. This mandate is not excused either by subjective good faith or by the economic necessity of maintaining viability of an employer's operation and preserving the jobs of the employees in the bargaining unit. "Nowhere in the statutory terms is any authority granted to us to excuse the commission of the proscribed action be- cause of a showing either that such action was com- pelled by economic need or that it may have served what may appear to us to be a desirable economic objective." Oak Cliff-Golman Baking Company, supra at 1064. Accord: Rego Park Nursing Home, 230 NLRB 725, 727 (1977). Consequently, notwith- standing the persuasiveness and validity of an em- ployer's economic straits, an employer is not free, without union consent, to make midterm modifica- tions in wage rates (Oak Cliff-Golman Baking, supra; Rego Park Nursing Home, supra nor to remove work from the bargaining unit (The Boeing Company, supra), nor to replace all unit employees. AAA Electric, Inc., and Simms Electric Co., 190 NLRB 247, 251 (1971), enforcement denied 472 F.2d 444 (C.A. 6, 1973). In the instant case, Re- spondents did each of these things: Reduced the rates of recreational sales employees, removed the work to locations which it contends are beyond the contractual jurisdiction, and hired employees to re- place those who had worked on Beacon Street. In doing so, they did, of course, relocate the recre- ational sales facility. However, that fact alone does not serve to change the result. See California Foot- wear, supra at 769-770. For, to permit relocation alone to vary this result would mean that employers would be permitted to achieve by indirection that which the above-listed employers were denied the opportunity to achieve by direct means under Sec- tion 8(d) of the Act. Subsequent to Los Angeles Marine, the Board decided two other cases involving similar situations, these being Brown Co., 243 NLRB 769 (1979), and Milwaukee Spring, supra. Like Los Angeles Marine, the facts of each showed that the companies, for the purpose of escaping the wage and other obligations of collective-bargaining agree- ments, relocated work from unionized facilities to non- union- facilities during the life of the respective collec- tive-bargaining agreements. In both cases the Board found 8(a)(l), (3), and (5) violations irrespective of the absence of union animus and notwithstanding the fact that the companies had bargained with the unions about the decisions. Thus, in Milwaukee Spring the Board opined: [W]e find that Respondent, even though it bar- gained with the Union about its decision to relocate and is willing to bargain about the effects of its de- cision, by deciding, without the consent of the Union, to transfer its assembly operations and to lay off unit employees at its Milwaukee facility during the term of its collective-bargaining agreement in order to obtain relief from the labor costs imposed by the agreement, acted in derogation of its bargain- ing obligation under Section 8(d), and hence violat- ed Section 8(a)(1), (3), and (5) of the Act. As I view the above cases, they essentially involve breach of contract issues. It appears, however, that the Board does not rely on the breach of any particular con- tract clause (except perhaps for the recognition clause), but rather views the company actions as, in effect, nega- tions of the entire collective-bargaining agreement. None of the cited cases relate to subcontracting situations and I am not aware of any case where this doctrine has been so applied. It also is noted that subsequent to its decision in Milwaukee Spring, the Board reopened that case for further argument and a decision in the case is currently pending. (Oral argument was held on September 20, 1983.) [This case was reversed and dismissed. 268 NLRB 601 (1984).] I ani of course bound to apply the law as it is current- ly expressed by the Board. Therefore, for purposes of this decision, I shall not pass on the Respondent's con- tention that Milwaukee Spring should be overruled. The Respondent does argue that even under the Mil- waukee Spring rationale, no violation has occurred be- cause that rationale has never been applied and should not be applied to a situation where the work is subcon- tracted in an arm's-length transaction to a third party. In this respect, the Respondent argues that in a subcontract- ing situtation the Board should evaluate the case under its traditional rules regarding subcontracting, and decide whether tfie company bargained in good faith before ef- fectuating the decision. In this respect, I think that the 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent makes persuasive argument that subcontract- ing is fundamentally different from a situation where a company relocates a facility in order to escape its con- tractual obligations. In the subcontracting situation, the company gives up control over the work in question to another company which will operate in its own manner and incur its own risks In a relocation situation, howev- er, a company not only seeks to escape from its labor agreements, but does so in a way where it still retains total control over the work in question. Therefore, in a sense, a decision to relocate from a unionized to a nonun- ionized facility (intracompany) is analogous to someone who wants to keep his cake while eating it. As pointed out by the judge in Los Angeles Marine, supra, if a com- pany, pursuant to Section 8(d) of the Act, cannot, with- out union consent, modify the terms and conditions of an existing contract, "to permit relocation alone to vary this result would mean that employers would be permitted to achieve by indirection that which . . . [they] were denied . by direct action under Section 8(d) of the Act." It could be argued that a decision to subcontract lies somewhere halfway between a decision to relocate (as in Milwaukee Spring) and a decision to partially terminate a portion of a company's business (as in First National Maintenance Corp. v. NLRB, 425 U.S. 666 (1981)). In a relocation case, the current law is that a company which decides to relocate work (intracompany) during the term of a labor agreement, for the purpose of avoiding the cost obligations of that agreement, will violate the Act absent the union's consent. However, in a partial closing situation, the Supreme Court, in First National Mainte- nance Corp., concluded that a company need not even bargain about such a decision As stated above, if deci- sions to subcontract lie somewhere between decisions to relocate and decisions to terminate operations, a logical compromise would be to apply the traditional standards set forth in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964), and to require companies to bargain in good faith about subcontracting decisions while per- mitting them to effectuate such decisions if good-faith bargaining has not persuaded them to retain the work. Assuming arguendo that Milwaukee Spring is either overruled or construed as being inapplicable to subcon- tracting decisions, the Charging Party could still argue that because the Company has not complied with the lit- eral language of section 1(I) of the collective-bargaining agreement, it thereby has unilaterally modified a specific provision of the existing contract, without the Union's consent, and thereby acted contrary to Section 8(d) of the Act. i a The Respondent's response is that, although 12 In this respect, the Union could argue that this contract breach would be no different than a situation in which a company has failed and refused to make pension or welfare payments as required by a collective- bargaining agreement In the latter situation the Board has consistently found 8(a)(5) violations even when bargaining was offered See, e g , Nestle Co, 251 NLRB 1023 in 3 (1979) See also Fuorco Glass Co., 250 NLRB 953, 955-956 (1979), where the company was held to have violat- ed Sec 8(a)(5) and Sec 8(d) when it failed to comply with the contrac- tual incentive pay program during the life of the collective-bargaining agreement this may be true, it nevertheless did not breach section 1(I) because it complied with its provisions to the extent permissible by law. This therefore brings our consider- ation to the Company's 8(e) defense. Section 8(e) of the Act was enacted in 1959 in order to close certain loopholes in the existing law relating to sec- ondary boycotts. Under the statute prior to 1959, it was unlawful (under Sec. 8(b)(4)(A)) for a union to utilize economic pressure or the threat thereof, to force or re- quire an employer to cease doing business with another employer with whom the union had a primary dispute. However, it was not unlawful for a union and an em- ployer, with whom the union had a contract, to enter into an agreement whereby the contracting employer agreed in advance not to do business with another em- ployer with whom the union had a dispute. Carpenters Local 1976 (Sand Door) v. NLRB, 357 U.S. 93 (1958) This "loophole" was one of those which lead to certain modifications of the secondary boycott provisions of the Act (renumbered as 8(b)(4)(B), and to the enactment of Sec 8(e)). Thus, Section 8(e) was designed, in effect, simply to ban agreements to achieve secondary boycotts in advance. Despite a literal reading of Section 8(e), it still must be ascertained whether an object of a clause, as applied to the facts of a particular case, is "primary" or "second- ary." Thus, Section 8(e) would, if read literally, prohibit a union and a company from entering into any agree- ment barring subcontracting, of bargaining unit work. Such a result would obviously be an anomaly, as the union would have a legitimate interest in contracting for the preservation of bargaining unit jobs. In such a situa- tion, if company A did subcontract out unit work to company B it would be held that any cease-doing-busi- ness object was merely ancillary to the unions primary dispute with company A. The test for determining whether a union's object is primary or secondary has been set forth by the Supreme Court in National Woodwork Mfrs. Assn., 386 U.S. 612, 644-645 (1967), as follows-. Whether, under all the surrounding circumstances, the Union's objective was preservation of work for [the contracting employer's] employees, or whether the agreements and boycott were tactically calculat- ed to satisfy union objectives elsewhere. . . . The touchstone is whether the agreement or its mainte- nance is addressed to the labor relations,of the con- tracting employer vis-a-vis his own employees In Retail Clerks Local 1288 (Meads Market), 163 NLRB 817, 818-819 (1967), enfd 390 F.2d 858, 861 (D.C Cir. 1968), the Board summarized different types of contract clauses as to whether they fell within the permissible or unlawful categories. The Board stated: It is well settled that contract clauses which restrict the performance of unit work, or at least fairly claimable unit work, to unit members in the employ of the contracting employer are not violative of Section 8(e). Such provisions "seek to protect the wages and job opportunities of the employees cov- LIQUID CARBONIC CORP 861 ered by the contract" and are "germane to the eco- nomic integrity of the principal work unit." These clauses are considered primary even though they may have the incidental effect of causing the em- ployer to cease doing business with other persons. The same is true of clauses which allow the em- ployer to subcontract unit work only to other em- ployers who maintain minimum union standards. On the other hand, contract provisions are secondary and unlawful if they are to have as their principal objective the regulation of the labor policies of other employers and not the protection of the unit. Typical of such proscribed provisions are those which limit subcontracting to employers who rec- ognize the union or who are signatory to a contract with it. Similarly, in Teamsters (California Dump Truck Owners), 227 NLRB 269 (1976), the Board stated: Section 8(e) of the Act makes it an unfair labor practice for an employer and a union to enter into an agreement, express or implied, whereby the em- ployer agrees to cease dealing in the products of any other employer or to cease doing business with any other person. A literal construction of this sec- tion suggests the illegality of any agreement which results in preventing the employer from establishing a business relationship with another employer, or which causes him to break off a relationship already established. The section, however, has not been construed to outlaw all agreements which produce such results. Contract clauses which purport to limit subcon- tracting to employers who are signatories to union contracts, so-called union signatory clauses, and contract clauses which purport to acquire for bar- gaining unit employees work which has traditional- ly been performed by employees of other employ- ers, so-called work acquisition clauses, have been held to violate the Act. Such clauses are viewed as not being designed to protect the wages and job op- portunities of unit employees covered by the con- tract, but as directed at furthering general union ob- jectives and undertaking to regulate the labor poli- cies of other employers. Absent a direct relationship to protection of the work of unit employees, such clauses are considered as having an unlawful sec- ondary effect and are proscribed by Section 8(b)(4) and (e). On the other hand, however, contract clauses whose basic aims are to limit subcontracting so as to preserve for unit employees work which has cus- tomarily been performed by them, or in some in- stances to recapture work regarded as fairly claim- able, so-called unit protection clauses, and contract clauses designed to limit subcontracting of unit work to employers who maintain the same stand- ards of employment, thus minimizing the economic incentive to subcontract, so-called union standards clauses, have been held to be lawful. The underly- ing rationale for the lawful character of unit protec- tion and union standard clauses is that the union has a primary interest in preserving unit work for unit employees and to insure that negotiated standards will not be undermined. There are occasions where it is not always obvious whether a particular clause should be construed as a union standards or preservation-of-work clause (therefore legal) and or an unlawful union signatory clause. Thus, a clause which precludes company A from subcontracting to company B unless company B equals the economic terms of company A's contract with the union could conceivably be viewed either as a union standards clause or a union signatory` clause In this respect the above- noted decision is enlightening as it deals with this prob- lem. In that case the Board concluded that if a subcon- tracting clause merely required the subcontractor to pay equivalent labor costs, then the clause would be primary as it would reduce the financial incentive of company A to subcontract. The Board also concluded, however, that if the collective-bargaining agreement dictated the specif- ic types of benefits payable to the subcontractor's em- ployees, then the union would, in effect, be seeking to regulate the labor policies of another employer and therefore the clause would have a secondary objective outlawed by Section 8(e) of the Act. In view of the above-noted cases, and given the lan- guage contained in section 1(I) of Local 478's contract, I can only conclude that the clause is a union signatory clause. This conclusion is amply supported by the testi- mony of the Union's witnesses, who asserted that their intention in enforcing the clause was to obtain recogni- tion from Chemical Leamon and for that Company to assume Local 478's contract, if the work was subcon- tracted. Notwithstanding the above, the Charging Party and the General Counsel still assert that section 1(I) is not violative of Section 8(e), relying on Harris Truck Sales, 224 NLRB 100 (1976); Bader Bros. Warehouse, 225 NLRB 609 (1976); Lone Star Steel Co, 231 NLRB 573 (1977), affd. in part 639 F.2d 545 (10th Cir. 1980); and Amax Coal Co., 238 NLRB 1583 (1978), affd. in part 614 F.2d 872 (3d Cir. 1980). In my opinion the cited cases are distinguishable from the facts in the instant case be- cause none involve subcontracting situations. Rather they involved successorship situations, where a company having a contract with a union sells its business and/or assets to another company. In order to put the above-cited cases in context, it is necessary to first review the Board's decision in National Maritime Union (Commerce Tankers), 196 NLRB 1100 (1972), enfd. 486 F.2d 907 (2d Cir. 1973). In Commerce Tankers there was a clause in the collective-bargaining agreement which provided that if the employer sold a ship to an American flag shipper not under contract with the National Maritime Union, the ship would be sold with a crew supplied by the union and the employer would obtain from the purchaser a commitment to abide by the labor agreement The Board concluded that this clause violated Section 8(e) of the Act because it im- posed restrictions on the sale of vessels that were unre- lated to preserving the jobs of seamen permanently as- 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed to the vessels before the sale. In essence, the Board viewed the clause as a union signatory clause and noted that the sale and transfer of vessels was a fairly common occurrence in the maritime industry. In Harris Truck Sales, supra, the General Counsel con- tended that the union violated Section 8(e) in connection with a "Sale of Assets" clause in the labor agreement. In essence, the contract provided that if the employer sold or leased its business, it was required to condition the sale or lease on the purchaser or leasee assuming all of the obligations of the collective-bargaining agreement. Although the General Counsel based his theory on Com- merce Tankers, the Board disagreed. The Board stated: Unlike the General Counsel, we do no view the "Sale of Physical Assets" clause here in question as an agreement to cease "doing business" within the meaning of Section 8(e) of the Act, nor do we find support for such a theory in Commerce Tankers, supra, on which he relies. In our recent Decision in Cascade Employers As- sociation, we concluded, upon a careful examination of the legislative history of Section 8(e) and its ac- commodation with other relevant sections of the Act, that the sale or transfer of an enterprise is gen- erally to be viewed not as a business transaction, but as a substitution of one entity for another while the conduct of business continues without interrup- tion. We found a material distinction betwen that case, where an entire business entity may be trans- ferred from one person to another, and Commerce Tankers, wherein we held that the sale of vessels in the maritime industry was not a novel situation but a fairly common occurrence in the normal course of "doing business." Thus, in Cascade, we found that the disputed contract provisions did not amount to an agreement to refuse to deal in "hot goods," "unfair materials," or "blacklisted" products, or an agreement to withhold services from an "unfair" employer, which was the primary concern of Con- gress in legislating Section 8(e), whereas in Com- merce Tankers we did indeed find that the contrac- tual limitation placed on business transactions fell within the scope of the 8(e) proscription. Subsequent to Harris Trucking the Board applied its ra- tionale in the other cited cases which involved the sale of all or a portion of a company's business and assets to another company. In effect, the Board concluded that a traditional successor and assigns clause, often contained in collective-bargaining agreements, was not prohibited by Section 8(e) of the Act because that type of transac- tion was not "doing business" within the meaning of Sec- tion 8(e) 13 In Amax Coal Co. v. NLRB, 614 F.2d 872 (3d Cir. 1980), the court, in agreement with the Board, also dis- tinguished between successorship clauses and subcon- tracting clauses. With respect to a clause requiring the company to condition any sale or conveyance of its op- 13 In Bader Bros, supra, the judge explicitly differentiated the clause there from a subcontracting clause 225 NLRB at 614, 615 eration upon the successor's assumption of the labor agreement, the court held that it was not violative of Section 8(e) It stated: The phrase "doing business" refers to a continuing business relationship which is capable of being dis- continued by one employer in order to accede to union demands. . . . Here it is clear that the sale by Amax of all or part of its business operations would involve no continuing relationship with the purchaser. There is therefore no possibility of involving Amax in a labor dispute between the purchaser and its employ- ees. However, when it came to discussing restrictive clauses relating to subcontracting, the court in Amax reached an entirely different conclusion. It stated: This clause prohibits Amax from subcontracting to a non-UMWA subcontractor even if he maintains working conditions equivalent to Amax's. It only serves the union's own interest in making sure the subcontractor recognizes the Union, and does not provide any benefit to Amax's employees. Pursuant to the teaching of National Woodwork Mfrs. Assn., supra, the evaluation of a contract clause for pur- poses of Section 8(e) depends on, "whether, under all the surrounding circumstances, the Union's objective was preservation of work for the' [contracting employer's] employees or whether the agreements . . . were tactical- ly calculated to satisfy union objectives elsewhere." Part of the surrounding circumstances in this case is the ar- rangement between Liquid Carbonic and Chemical Leamon which was not intended to involve and did not involve the sale of even a portion of the former's busi- ness or assets (aside from some tires) to the latter. Rather, their arrangement was a subcontracting arrange- ment which involved a continuing business relationship between the two companies and which therefore consti- tuted "doing business" within the meaning of Section 8(e). Pursuant to their arrangement, the truckdriving was to be integrated into Chemical Leamon's Croyden facili- ty operations where a much larger number of employees were already represented by Local 312 IBT. Therefore, there was no possibility that Chemical Leamon, even if it hired all of the Respondent's displaced employees, would have been a successor having a legal obligation to bar- gain with Local 478. Moreover, the evidence herein demonstrates that Local 478, in objecting to the subcon- tracting arrangement, was not, in reality, concerned about the alleged disparities between its own contract and Local 312's contract. Nor could it have been legiti- mately concerned about preserving the employees' jobs because those jobs had been guaranteed by Chemical Leamon. In fact, it is my opinion that Local 478's real concern was to retain its collective-bargaining status by requiring Chemical Leamon to recognize it as the bar- gaining representative and to require Chemical Leamon to assume the collective-bargaining agreement. In short, I find that section 1(I) of the contract, as sought to be LIQUID CARBONIC CORP 863 applied by the Union in the circumstances of this case, was null and void under Section 8(e) of the Act. As such, the Respondent cannot be charged, pursuant to Section 8(d) of the Act, with unilaterally modifying a contract clause which was unenforceable and void. Despite my'conclusion that reliance on a Milwaukee Spring theory is inappropriate to the circumstances of this case, this does not end the inquiry. Thus, having de- termined that the breach of contract theory has no merit, the case must next be analyzed pursuant to the rationale of Fibreboard Paper Products v. NLRB, supra. In this regard the issue becomes whether the Company gave the Union adequate notice of its subcontracting decision and whether it offered to bargain and bargained in good faith before implementing its decision to subcontract. First, I would, at this point, like to dispose of two an- cillary issues. First, the Respondent argues that the Union specifically waived its right to bargain about sub- contracting decisions when it agreed to section 1(I) of the collective-bargaining agreement. This contention is, in my opinion, somewhat specious as the Company also argued, and I agree, that a significant portion of that clause is null and void under Section 8(e) of the Act. I therefore do not believe that the Union unequivocally waived its right to bargain by entering into a clause which subsequently is held to be invalid in substantial re- spects. Put another way, the Union did not get the full benefit of the bargain it thought it had made. Second, the Company contends that its decision to subcontract was not a mandatory subject of bargaining pursuant to the rationale of First National Maintenance Corp. v. NLRB, supra. I disagree. In First National Main- tenance the Supreme Court distinguished between three categories of managerial decisions in relation to the bar- aining obligations imposed by Section 8(a)(5) of the Act. In the first category of decisions, "such as, choice of ad- vertising and promotion, product type and design, and fi- nancing arrangements," the Court opined that these types of decisions did not require bargaining as they "have only an indirect and attenuated impact on the em- ployment relationship." In the second category, includ- ing order of succession of layoffs and recall, production quotas, and work rules, the Court concluded that deci- sions of this nature are "almost exclusively `an aspect of the relationship' between employer and employee." Thus, as to category two types of decisions, it is reasona- ble to conclude that the Court would invariably require decision bargaining absent union waiver. The Court also set forth a third category of decisions which, although involving "a change in the scope and direction of the en- terprise," also are of "central and pressing concern to the Union and its member employees." In its opinion, the Court stated that concerning managerial decisions in cat- egory three, decision bargaining would be required "only if the subject proposed for discussion is amenable to res- olution through the bargaining process " It also stated that, "in view of an employer's need for unencumbered decision-making, bargaining over management decisions that have a substantial impact on the continued avalabi- lity of employment should be required only if the benefit, for labor management relations and the collective bar- gaining process, outweighs the burden placed on the conduct of the business " In First National Maintenance, the managerial decision involved was the company's determination to partically terminate its operations The Supreme Court concluded that the company was not required by the Act to first bargain about that decision before implementation The Court did not, however, purport to overrule its earlier decision in Fibreboard (relating to subcontracting), 14 and its decision was limited to the facts of the case. Thus, at footnote 22, the Court stated, "In this opinion we of course intimate no view as to other types of management decisions, such as plant relocations, sales, other types of subcontracting, automation, etc., which are to be consid- ered on their particular facts." Whether or not Liquid Carbonic's decision to subcon- tract was motivated by a desire to save on labor costs, it nevertheless seems to me that this decision was one which substantially affected the bargaining unit employ- ees and was amenable to the bargaining process. In fact, this is made clear by the testimony of Respondent's own witnesses who indicated that they sought alternative sug- gestions from the Union (no doubt hoping for contract concessions), and that had the Union made a reasonable offer, Respondent would not have subcontracted the work as it preferred to have it under its own control. Further, subsequent to the Supreme Court's holding in First National Maintenance, the Board, in Bob's Big Boy Restaurants, 264 NLRB 1369 (1982), held that a compa- ny violated Section 8(a)(5) of the Act when it subcon- tracted its shrimp processing work without bargaining about that decision, even though the subcontracting re- sulted in a termination of its shrimp processing depart- ment. The Board stated: The distinction between subcontracting and par- tial closing, however, is not always readily appar- ent. Thus, it is incumbent on the Board to review the particular facts presented in each case to deter- mine whether the employer's action involves an aspect of the employer/employee relationship that is amenable to resolution through bargaining with the union since it involves issues "particularly suita- ble for resolution within the collective bargaining framework." If so, Respondent will be required to bargain over its decision. If, however, the employ- er's action is one that is not suitable for resolution through collective bargaining because it represents "a significant change in operations, or a decision lying at "the very core of enterpreneurial control," the decision will not fall within the scope of the em- ployer's mandatory bargaining obligation A deter- 14 Subsequent to- Fibreboard, the Board in Westinghouse Electric Corp, 150 NLRB 1574 (1965), set forth various criteria to determine whether a company violates Sec 8(a)(5) of the Act when it subcontracted without bargaining These were (1) whether it was motivated solely by economic considerations, (2) whether the subcontracting comported with the com- pany's traditional means of conducting its business, (3) whether it varied significantly in kind or degree from what had been customary under past practice, (4) the extent of adverse impact on employees, and (5) whether the union had had the opportunity to bargain about changes in existing subcontracting practices at general negotiation meetings 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mination of the suitability to collective bargaining, of course, requires a case-by-case analysis of such factors as the nature of the employer's business before and after the action taken, the extent of cap- ital expenditures, the bases for the action, and, in general, the ability of the union to engage in mean- ingful bargaining in view of the employer's situation and objectives. In summary, we find that Respondent's decision to subcontract its shrimp processing operation did not represent a substantial change in the nature or direction of Respondent's business and did not oth- erwise entail sufficient capital restructuring to remove the decision from the scope of Respondent's mandatory bargaining obligation. In addition, the bases and objectives in Respondent's decision to subcontract are particularly suitable to resolution through the collective-bargaining process. Concerning whether Liquid Carbonic's decision to subcontract should be considered a mandatory subject of bargaining, it seems to me that the facts are remarkably similar to those in Bob's Big Boy Restaurants, supra. As noted above, the truckdriving work involved was merely an ancillary part of Respondent's business operation (manufacturing gases), which did not change after the driving work had been subcontracted. Thus, the decision was not one which entailed a major change in the scope or direction of Respondent's operations. Also, the amount of capital involved was relatively negligible. That is, Liquid Carbonic still retained ownership of the trailers after subcontracting to Chemical Leamon and the tractors, which it had previously leased, were turned back to the leasors. To the extent that some of Respond- ent's tractors were owned, they were transferred to other operations of Respondent. Further, the property used by Respondent for its terminals was also leased and was, essentially, empty lots. As noted above, Respond- ent's witnesses stated that they would have preferred to keep the work under Respondent's control if Local 478 had offered a reasonable alternative to the subcontracting decision This too shows that the decision to subcontract was amenable to the bargaining process and I so find. Having concluded that the decision to subcontract was a mandatory subject of bargaining and that the Union had not, by virtue of section 1(I) of its contract, waived its rights to bargain, I will now address the next ques- tion-whether the Company gave the Union adequate notice and offered to bargain in good faith. In cases such as this, the Company's obligation is to give advance notice of the decision to the Union and to offer to bargain about the decision before its implementa- tion. On the other hand, a company is not required to obtain the union's consent to the decision, provided it bargains in good faith with an open mind. Thus, as a general matter, the Supreme Court in NLRB v. American National Insurance Co., 343 U S. 395 (1952), stated: As amended in the Senate and passed as the Taft- Hartley Act, the good faith test of bargaining was retained and written into Section 8(d) of the Nation- al Labor Relations Act. That Section contains the express provision that the obligation to bargain col- lectively does not compel either party to agree to a proposal or require the making of a concession. Thus it is now apparent from the statute itself that the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position. And it is equally clear that the Board may not, either di- rectly or indirectly, compel concessions or other- wise sit in judgment upon the substantive terms of collective bargaining agreements. Of course, if the facts show that a company, while purportedly offering to bargain, has made an irrevocable or final decision and/or presents it to the union as a fait accompli, this would be contrary to the good-faith re- quirements of the Act. Central Virginia Electric Coopera- tive, 254 NLRB 417, 424 (1981); Medicenter, Mid-South Hospital, 221 NLRB 670, 679 (1975). Also, if no notice is given prior to implementation of the decision this too will be violative of the Act as it is obviously difficult to bargain about a decision which has already been imple- mented. NLRB v. Carbonex Coal Co., 679 F.2d 200 (10th Cir. 1982); P. B. Mutrie Motor Transportation, 226 NLRB 1325 (1976); Blue Grass Provision Co., 238 NLRB 910 (1978). Additionally, if a subcontracting decision is moti- vated by antiunion considerations, such action will not only violate Section 8(a)(5) of the Act but also Section 8(a)(3) of the Act. NLRB v. Carbonex Coal Co., supra; St. John's Construction Corp., 258 NLRB 471 (1981). On the other hand, if after a managerial decision is made, the union fails to seek bargaining, but merely objects to the changes, it may be said that the union, by its inaction, has waived its right to bargain. U.S. Lingeries Corp., 170 NLRb 750 (1968); Medicenter, Mid-South Hospital, 221 NLRB at 678-679; Clarkwood Corp., 233 NLRB 1172 (1977). Indeed the Board has gone so far as to conclude that even in the absence of formal notice, if a union learns of a managerial decision but fails to seek bargain- ing, it will waive its bargaining rights. See Medicenter, Mid-South Hospital, supra at 678-679. In the present case the General Counsel and the Charging Party contend that the Respondent neither gave adequate notice of its subcontracting decision, nor bargained in good faith. They assert that the Company had made a "final" decision to subcontract and presented it to the Union as a fait accompli. The problem with these assertions is that (1) notice to the Union was given at least 1 month before the decision was to be effectuated and before any contract was signed between Respondent and Chemical Leamon; (2) the Company expressly did offer to bargain about its decision; (3) the Company did meet with the Union on several occasions to explain its decision and solicited an alternative from the Union; (4) the Union did not offer any alternatives or concessions, but rather insisted on compliance with section 1(I) of its contract; and (5) the Company offered to extend the time for implementing its decision if the Union agreed to extend its existing collective-bargaining agreement. Fur- ther, despite the Union's witnesses' characterization of the Respondent's position as being a fait accompli, the LIQUID CARBONIC CORP evidence, to my mind, does not comport with that con- clusion. Thus, although I believe that prior to notifica- tion, the Respondent had made a decision to subcontract the work to Chemical Leamon, I am not persuaded that it has been shown that this decision was either final or irrevocable. That is, based on the record as whole, I be- lieve that the Company could have been persuaded to retain the work had the Union offered concessions which would have made it economically desirable for the Com- pany to do so. In Shell Oil Co., 149 NLRB 305 (1964), the company was charged with violating Section 8(a)(5) of the Act when it decided to transfer certain of its operations from Detroit to Grand Haven. Notice of this decision was given to the union only a few days in advance and there- fore it was argued that the union was not afforded an adequate opportunity to bargain. The Board held that the company did not violate the Act notwithstanding the timing of the notice, noting that the company did meet with the union and did discuss the proposed transfer of work. It was noted that after the transfer had been ac- complished, the company continued to discuss the matter with the union, and that as no employee had been dis- charged, the change had a limited effect on the employ- ees. The Board stated: We agree with the Trial Examiner's general state- ments of the principles enunciated in our earlier de- cisions in Town & Country Manufacturing Co., Inc., 136 NLRB 1002, enfd. 316 F 2d 846 (C.A. 5), and Fibreboard Paper Products Corp., 138 NLRB 550, enfd 322 F.2d 411 (C.A. D.C.), cert. granted 375 U.S. 963. In both those cases we held that a man- agement decision to subcontract unit work, albeit for economic reasons, is a mandatory subject for bargaining and that an employer's failure to bargain with respect to this matter is violative of Section 8(a)(5) and (1) of the Act. The principles of those earlier cases, however, are not meant to be hard and fast rules to be mechanically applied irrespec- tive of the circumstances of the case. In applying these principles, we are mindful that the permissibil- ity of unilateral subcontracting will be determined by a consideration of the setting of each case. Thus, the amount of time and discussion required to satis- fy the statutory obligation "to meet at reasonable times and confer in good faith" may vary with the character of the subcontracting, the impact on em- ployees, and the exigencies of the particular busi- ness situation involved. In short, the principles in this area are not, nor are they intended to be, in- flexibly rigid in application. Pursuant to NLRB v. American Insurance Co., sups a, Shell Oil Co., supra, and cases decided since,15 while a 15 In Salem College, 261 NLRB 327 (1981), the union was notified of the company's decision to subcontiact unit work about 20 days before the decision was implemented In Globe-Union, 222 NLRB 1081 (1976), the union was notified of the company's intention to transfer work about a week before the decision was effectuated On the other hand, in ABL- Transnational Transport, 247 NLRB 240 (1978), the employer was held to have violated the Act when it gave the union only a few days notice of its decision to subcontract which it had made and did not give the union 865 company must afford a union adequate notice and a rea- sonable period of time to bargain about managerial deci- sions affecting employee terms and conditions of employ- ment (to the extent that they are mandatory subjects of bargaining as defined in First National Maintenance Corp., supra), it is clear that a company need not engage in unlimited or marathon bargaining. In the present case, it is my opinion that the Respond- ent met its bargaining obligation. The Respondent gave formal notice of its decision to subcontract by letter dated February 12, more than 1 month before its pro- posed decision was to be effectuated, As this formal notice was given before Respondent entered into any contract with Chemical Leamon, it is therefore my opin- ion that the Union was given adequate time to approach the Company on this issue. It also is my opinion, as ex- pressed above, that although the Company made a deci- sion to subcontract before February 12, this decision was not final or irrevocable. The facts establish that the Com- pany did offer to bargain about its subcontracting deci- sion and did meet with the Union on three separate occa- sions before the decision was implemented. The evidence shows that the Respondent explained the reasons for the decision, offered to allow the Union to audit its books and records, solicited an alternative from the Union, and offered to extend implementation of the decision in con- sideration for the Union agreeing to extend the collec- tive-bargaining agreement. The Union for its part object- ed to the subcontracting, offered no alternatives, and simply insisted that if the Respondent subcontracted with Chemical Leamon, the Respondent was obligated, pursu- ant to section 1(I) of the contract, to obtain Chemical Leamon's assumption of Local 478's collective-bargain- ing agreement. The ultimate result of the parties' respec- tive positions was that on March 16, the Company exe- cuted a subcontracting agreement with Chemical Leamon to be effective on March 17. Nothwithstanding Respondent having obtained Chemical Leamon's agree- ment to hire the drivers with seniority preference in rela- tion to the delivery of Respondent's products, the Union persuaded the drivers not to accept the proffered jobs As a result of all the foregoing, the drivers lost their jobs and, although this is a sad consequence, I cannot say that it was the result of any unlawful action on the part of the Company. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint an opportunity to bargain "during the critical time when such bargaining perhaps could have been productive, that is, the period when the decision was being considered and about to be made " 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi6 ORDER The complaint is dismissed in its entirety 's If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall he deemed ssaived for all pur- poses