TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Enforcement Litigation 167
(2) Subcontracting of Work as Unlawful Discrimination
Two other cases 22 decided during the year put in issue a Board
finding that an employer violated section 8(a) (3) and (1) by discontinuing
the performance of certain work by his own employees,
and subcontracting it to an independent contractor, because his own
employees had chosen union representation
In one of these cases, 22 the Tenth Circuit agreed with the Board
that a department store violated section 8(a) (3) and (1) by discontinuing
the performance of maintenance work by its own employees,
adding this work to the subcontract of an operating-management
firm, and transferring its maintenance employees to this firm, because
these employees had chosen a union to represent them The court
likewise approved the Board's order requiring the department store
to offer reinstatement to those employees who chose not to remain
in the employ of the management firm, winch paid higher wages
but may have provided less job security
However, in the other case 22 the Sixth Circuit set aside the Board's
finding that the employer violated section 8(a) (1) and (3) by accelerating,
because its truckdrivers had joined a union, the implementation
of a previously leached decision to adopt a common-carrier
delivery system within 4 months or sooner if anything occurred which
would increase costs Although the union had made no demand for
increased pay, the court found that "the evidence fully justified [the
employer's] contention that such demands would be made and could
not be met" A change so made, because of "reasonably anticipated
increased costs," does not violate the act, the court said, "regardless of
whether this increased cost was caused by the advent of the Union
or by some other factor .
(3) Loss of Seniority and Layoff After Craft Severance
As noted above, section 8(a) (3) forbids certam kinds of employer
discrimination, and section 8(b) (2) forbids unions to cause such
discrimination The Standard Oil case 24 presented the question as
to whether an employer and a union violated these proscriptions
where employees were denied requests for job transfers and were
In addition see NLRB v W L Rives Oo , 288 F 2d 511 (C A 5), discussed above
at p 165
= NLRB v Brown-Dunkin Co, 287 F 2d 17
FL v Leasing, 284 F 2d 781, certiorari denied, 366 U S 909
"Local 483, International Brotherhood of Boilermakers, Iron Ship Builder., Blacksmith.,
Forgers t Helper. of America, A 1 -7.-010 v NLRB, 288 F 2d 166 (CADC)