NATIONAL LABOR RELATIONS BOARD

VII. PRINCIPLES ESTABLISHED 93
When the employer has committed an unfair labor practice by
closing its plant and locking out its employees, it is not relieved of
its obligation to bargain collectively because of the shut-down. 4' The
Board ''has emphasized the need for collective bargaining in such
a situation :
The shut-down of the plants did not relieve the respondent of its obligation
under Section 8 (5) of the Act to bargain with its employees. It cannot be
contended that such bargaining would have been pointless then in view of the
fact that the respondent admits that labor trouble was directly responsible
for the shut-down. It is altogether possible that had the respondent met
with the United the labor difficulties might have been adjusted.0
In several cases employers have advanced other untenable reasons
for their failure to bargain collectively. The Board has found that
the fact that the union representatives were seeking a closed shop
did not excuse the employer from bargaining collectively.43
In Matter of Sheba Ann Frocks, Inc." the Board issued a complaint
alleging that the employer had refused to bargain collectively.
Subsequent to a hearing on the complaint and the issuance of the
trial examiner's intermediate report, but before the Board issued its
decision, the employer again refused to bargain collectively. The
employer then contended that its second refusal was justified because
it was not required to bargain until the Board had rendered a decision
on the issues of the original complaint. In dismissing this contention,
the Board said: "The issuance or withholding of a decision
on a complaint cannot relieve the respondent of its obligation to observe
the provision of the Act. A finding that the respondent has
not refused to bargain collectively cannot condone a subsequent refusal
to bargain within the meaning of the Act."
. 1-Matter of Omaha Hat Corporation and United Hatters, Cap and Millinery Workers
International Union, Local Nos. 7 and 8, 4 N. L. R. B. 878 (the employer's action in closing
its New York City plant and preparing to remove to Garwood, N. 3., was found to be motivated
by its desire to avoid collective bargaining and by its intention to discourage membership
in the union and thus was held to be an unfair labor practice within the meaning of
sec. 8 (1)) ; Matter of Somerset Shoe Company and United Shoe Workers of America,
5 N. L. R. B. 486; Matter of American Radiator Company, a Corporation, and Local Lodge
No. 17'70, Amalgamated Association of Iron, Steel and Tin Workers of North America. Affiliated
With the Committee for Industrial Organization, 7 N. L. R. B. 1127; Matter cf
Kueltne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and
Joiners of America, 7 N. L. R. B. 304. In the latter case the Board said :
"Since we have found that the closing down of the Flora plant involved a discriminatory
lock-out, the shut-down did not relieve the respondent of its obligation under the act to
bargain with its employees or their duly chosen representatives. Obviously, the respondent
can neither rely upon its own wrongful 'abandonment' of the plant as an excuse for its
refusal to bargain collectively with the union nor argue with good grace that such bargaining
would have been fruitless. Had the respondent met with the union, the labor
dispute might have been adjusted. By the course of action it took on April 1 and thereafter,
the respondent has disqualified itself to contend otherwise."
a Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R. B.
486.
4, Matter of United States Stamping Company and Enamel Workers Union, No. 18630,
5 N. L. R. B. 172: "The proposed contract of September 28, 1936, contained a closed-shop
provision. As respondent and its counsel well know, the incorporation of such a provision
In a proposed contract does not indicate that the union will not accept a contract without
such a provision • • *. The minutes of this meeting do not indicate that the union
committee took the position that an agreement without this provision would not be
acceptable.'
Matter of The TVarfte/d Company, a Corporation Fornierly Known as The Thomson
Taylor Company, and International Union of Operating Engineers, Local No. 399, and International
Brotherhood of Firemen and Oilers, Local No. 7, 6 N. L. R. B. 58, was another case
in which the employer raised the excuse of a closed-shop demand to excuse its failure to
bargain. In this case, the Board found the excuse to be spurious.
In Matter of Forme() Package Corporation and United Veneer Box and Barrel Workers
Union, 0. I. 0., 6 N. L. R. B. 601, the employer refused to bargain on the ground that the
proposed contract presented to him contained only "preposterous" wage and hour demands.
The contract, however, had, besides the wage and hour provisions, 16 other provisions, and
the Board found that the employer's contentions were not raised in good faith.
"Matter of Sheba Ann Frocks, Inc., and International Ladies' Garment Workers' Union
of America, Locals 121 and 304, 5 N. L. R. B. 12.