TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Unfair labor Practices 111
employer violates Section 8(a) (5) if, during the contract term, he refuses to
bargain or takes unilateral action with respect to the particular subject, unless
it can be said from an evaluation of the prior negotiations that the matter was
"fully discussed" or "consciously explored" and that the Union "consciously
yielded" or clearly and unmistakably waived its interest in the matter
The Board pointed out that acceptance of the employer's contention
that the wage article and the management rights clause represent the
full and final agreement of the parties relating to other wage determinations
would be to disregard "the familiar concept of collective
bargaining as a continuing and developing process by which the relationship
between an employer and the representative of his employees
is to be molded " "
(2) Decision To Subcontract Work
In the Fzbreboard case," the Board had occasion to decide the
question whether an employer was under a statutory duty to bargain
with the union about its "decision to contract out" maintenance work
A majority of the Board 36 rejected the contention that a management
decision to cease one phase of its operations solely for economic reasons
is in and of itself a mandatoly subject for baigaming The majority
noted that such a broad proposition v, as contrary to existing pi ecedent,
since the Board has held that the establishment of an appropriate
bargaining unit does not preclude an employer who acts in good faith
from making changes in his business structure—such as enteling into
subcontracting arrangements—without first consulting the representative
of the affected employees 37 It was pointed out by the majority
that, although the statutory obligation to bargain is broad, it is not so
bioad and all-inclusive as to warrant an inference that Congress intended
to compel bargaining concernmg basic management decisions,
such as whether and to what extent to risk capital and managerial
effort According to the majority, the Timken, Shamrock, and Railroad
Telegraphers cases," relied upon by the dissent, did not support
the proposition that a union which will not represent any of the employer's
employees is entitled to compel the employer to bargain about
matters which will have an impact only when it ceases to be a
representative
IN /bid The Board distinguished Speidel Corp • 120 NLRB 783 (1958), NLRB v Nash-
Pinch 00, 211 F 2d 622 (CA 8, 1954), and The Berkline Oorp , 123 NLRB 685 (1959),
where effective waivers by the unions were found
Fibreboard Paper Products Corp, 130 NLRB 1558, but see above, footnote 43, p 98
81 Member Fanning, dissenting believed that sec 8(d) under existing Board and Supreme
Court decisions imposes on an employer the duty to bargain about its decision to subcontract
work performed by employees represented in a collective bargaining unit
Eri See Mahoning Mining Co, 61 NLRB 792 (1945) , and Walter Holm d Co, 87 NLRB
1189 (1949)
to The Timken Roller Bearing Co, 70 NLRB 500 (1940 , Shamrock Dairy, Inc, 124
NLRB 494 (1969), The Order of Railroad Telegraphers, et al v Chicago and North
Wasters Rofiroad Go, 862 11 8 880 (1959)