TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

96 Twenty-sixth Annual Report of the National Labor Relations Board
c. Forms of Discrimination
Section 8(a) (3), except for its union-security proviso, forbids an
employer to encourage or discoui age union membei ship by any discrimination
in employment 35 As heretofore, cases under section 8
(a) (3) involved, for the most part, such forms of disci iminat ion as
unlawful discharges, layoffs, transfers, or refusals to hire, and presented
questions as to the sufficiency of the credible evidence to support
the allegations of disciimination contained m the complaint The
cases involving special problems arising in connection with particulai
forms of discrimination, or pertaining to the type of order best suited
to afford appropriate i elief in a particular situation, are discussed
below
(1) Lockout in Anticipation of Strike
In Betts Cadzllac,86 during fiscal 1952, the Board adopted the folloINina
statement of the trial examiner
An employer is not prohibited from taking reasonable measures, Including
2losing down his plant, where such measui es are, under the circumstances,
necessary for the avoidance of economic loss or business disruption attendant
upon a sttike This right may, under some circumstances, embiace the cui tailmeat
of operations befoie the pi ecise moment the strike has occuried The
nature of the measures taken, the objective, the timing, the reality of the strike
threat, the nature and extent of the anticipated disruption, and the degree of
resultant restriction on the effectiveness of the concerted activity, are all matters
to be weighed in determining the leasonableness under the circumstances, and
the ultimate legality, of the employer's action "
The question of the legality of a lockout because of a threatened
strike arose agam, during the past year in Packcnd Bell Eleetronzes
Corporatzon 88 There, a manufacturer of television and i adio ieceivers
subcontracted its service work and laid off or terminated its set vice
employees, upon learning after a bargaining impasse that the employees
had "voted for a strike" that M ould take place "within the
next 48 hours," although up to that time no strike had been called or
taken place The issue piesented was whether the lockout 11, as disciiminatorily
motivated, as found by the trial examiner, or justified
and motivated by special economic considerations of the type set forth
ss In Kohler Co, 128 NLRB 1062, 1092-1093, 1188-1189, the Board held that the
employer violated sec 8(a) (1), but not sec 8(a) (3), by serving eviction notices upon, or
physically evicting, striking tenants from a company-owned hotel and company-owned
dwellings and garden plots since the occupancy of these company premises was not a con
dition of employment, in the absence of a free or nominal rental constituting a part of
wages or a company rule or force of circumstances compelling occupancy as an incident
to employment Compare with cases cited in Twenty-fifth Annual Report (1960), p 67
footnote 81
as Betts Cadillac Olds, Inc, 96 NLRB 268 (1951) , Seventeenth Annual Report (1952),
p 155, footnote 20
Err 96 NLRB 268, at p 286
le 180 NLRB 1122