1 - National Labor Relations Board

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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.
92 Thirty-fourth Annual Report of the National Labor Relations Board ditional operations had been manned almost entirely by employees. The Board concluded that, in view of the employer's unilaterial actions adversely affecting the winter employees' status and tenure and his refusal to reemploy the winter employees who had nevertheless sought reemployment—a refusal which was discriminatory as to some employees and based on reasons found to be pretextual as to all—it was clear that the employer had deliberately subcontracted its winter operations to achieve by unlawful means what it had been unable to achieve by lawful means : avoidance of union representation of the winter employees. Moreover, the Board found the increase in subcontracting to be such a basic change in operations that the failure to bargain with the employees' representative about it was, without more, a violation of section 8(a) (5) and (1) of the Act. Accordingly, it ordered the employer to return to its former mode of operations and to reinstate with backpay the winter employees who were denied reemployment as a result of the employer's unlawful conduct. 7. Survival of Terms of Expired Contract The extent to which contractual terms continued in effect after the expiration of the contract was in issue in two cases decided during the year. In one, 59 the employer, after the old contract had expired, laid off certain employees without regard to seniority, although the contract required that layoffs be in inverse order of seniority and gave employees in each department a limited right to "bump" employees in other departments with less seniority. The parties, in attempting to negotiate a new contract, had failed to reach agreement on a number of issues but had not discussed any changes in seniority and layoff procedures. The Board concluded that the layoffs violated section 8(a) (5) and (1) of the Act because they were not made in conformance with the provisions of the previous contract, even if an impasse had been reached on other issues. It pointed out that while an employer may, after bargaining to an impasse, make unilateral changes which are reasonably comprehended within his preimpasse proposals, he may not unilaterally modify, even temporarily, terms of employment which were not within the area of negotiations during the bargaining sessions. The ° Laded Goa Co., 173 NLRB No. 35.
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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IX Injunction Litigation Section 10
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Table 3A.—Formal Actions Taken in
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Table 6.—Geographic Distribution
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Table 7.-Analysis of Methods of Dis
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it! All C cases CA cases CB cases C
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Stage of disposition ' Table 8.-Dis
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Table 13.-Final Outcome of Represen
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Participating unions AFL-CIO v. AFL
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Table 14.-Valid Votes Cast in Repre
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Participating unions AFL-CIO v. AFL
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Table 20.—Injunction Litigation U
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