1 - National Labor Relations Board

Unfair Labor Practices 91
tive was held clearly violative of section 8 (a) (5) and (I) of
the Act.
The Board held in another case 56 that an employer who had
subcontracted work during a strike violated section 8(a) (5)
and (I) of the Act by unilaterally entering into leasing agreements
with individual employees, and by bargaining unilaterally
with two striking employees to get them to work for the subcontractor
which was performing the struck work. On the first
point, the Board 57 held that it was immaterial that the employees
might have initiated the negotiations which led to the
leasing arrangements ; bargaining with individual employees
when the employer should have bargained with the union which
represented them necessarily undercut the union and hence violated
section 8(a) (5) and (I) of the Act. On the second point, the
Board pointed out that, while an employer may unilaterally subcontract
work during a strike in order to continue its business,
it does not follow that the employer may then negotiate with its
own employees to get them to work for the subcontractor who
is performing that struck work. Such negotiation makes the
subcontractor a mere conduit for the employer's efforts to unilaterally
change the terms and conditions of employment, and
thereby undermine the union's objections at the bargaining table.
Accordingly, the Board found that, by negotiating with the
strikers when it was obligated to bargain with the union, the
employer violated section 8(a) (5) and (I) of the Act.
In another case, 58 the Board, in certifying a union as bargaining
representative of the truckdriver employees of an employer
whose petroleum distribution operations were seasonal, included
in the bargaining unit, over the objection of the employer, those
employees who worked only in the winter months when the
employee complement was doubled. The employer, without bargaining
with the union, then compelled the winter employees, at
the end of the season, to sign notices permanently severing their
employment. The following winter, the employer denied reemployment
to several former winter employees, despite its prior
practice and policy of recalling and reemploying such employees.
Further, for his additional work force requirements in the
winter, the employer used mostly independent contractors, rather
than employees, whereas, in prior winters, the employer's ad-
56 Tobaseo Prestressed Concrete Co., 177 NLRB No. 101.
" Members Fanning and Brown for the majority. Member Zagoria, dissenting on this point,
viewed the leasing arrangements as merely temporary for the duration of the strike and
thus lawful in view of the employer's right to continue operations during a strike.
"C. II. Sprague & Son Co., 175 NLRB No. 61.