1 - National Labor Relations Board

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Unfair Labor Practices 93 Board rejected the employer's contention that it was actually locking out the laid-off employees, and that the right of lockout necessarily includes the right to deviate temporarily from existing seniority practices without consulting the union. In the Board's view, the layoff was not used as an affirmative bargaining strategy, but was motivated by a desire to eliminate those operations which could not operate efficiently under threat of a strike and which involved potential danger to the public in the event that a strike actually occurred. Under these circumstances, a unilateral change in contractually established terms could not be justified merely by saying it was temporary, since no such unilateral change could be made unless the employer had first satisfied its obligation to bargain with the union before making the change.6° In the other case, 61 in return for the employer's agreement that if negotiations for a new contract continued beyond the expiration date of the old contract any wage increase would be made retroactive to that date, the union agreed, in effect, that all of the terms of the old contract would be kept in effect until agreement on a new contract was reached or the union called a strike. Some of the employees subsequently went on strike and continued on strike despite repeated warnings by both the employer and the union that they were in violation of the nostrike clause of the old contract and that their jobs were in jeopardy. The Board held that the employer did not violate section 8(a) (1) of the Act when it discharged some of the striking employees and placed the others on probation, since the employees had forfeited their right to reinstatement by striking in violation of the no-strike provision of the extended contract then in effect. In the Board's view, there was no factual basis for concluding that the no-strike provision, one of the most essential elements of the old contract, was deleted while the remainder of the contract was extended. Without the extension of the nostrike provision, there would be no logical or economic reason for the employer's willingness to accede to the union's demand for wage retroactivity. Moreover, it was clear that the parties intended that the existing contract would be terminated only if the 60 Chairman McCulloch and Member Fanning for the majority. Member Brown, concurring, would find the unilateral changes in seniority and layoff practices unlawful even if the employees involved were locked out after an impasse, since such charges had not been at issue in the negotiations prior to the impasse. el Kroger Co. (Cleveland Div.), 177 NLRB No. 104.
94 Thirty-fourth Annual Report of the National Labor Relations Board union authorized a strike, and only after, not before, a bargaining impasse was reached.62 8. Successor Employer and Plant Relocation Bargaining Obligation Three cases among those decided during the year involved the effect of a transfer of an employing company's stock or assets, or a relocation of its plant, upon its obligation to bargain with the union representing its employees. In Miller Trucking Service, 63 the sole stockholder of a corporation sold all his stock to another company which established the corporation as a separate organizational division, rehired most of the original company's former employees, and operated in substantially the same manner as before the stock transfer, using the same equipment, servicing the same customers, and employing the same number of employees at the same work and under the same general terms and conditions of employment. Pointing out that, while a corporate identity will sometimes be pierced in order to avoid its use to shield one who seeks to evade legal responsibility, it will not be pierced to sanction the corporation's wrongdoing, the Board held that the transfer of stock did not result in the substitution of the purchaser for the former stockholder as employer. It found that the original corporation, which was never dissolved and continued as a legal entity, remained the employer at all times and was obligated to remedy the former stockholder's refusal to bargain with the union prior to the ,transfer of stock, which the Board found violative of section (8) (a) (5) and (1) of the Act. In addition, the Board found that the employer's unilateral termination of its employees just before the transfer of stock violated section (8) (a) (5) and (1) of the Act. Had the employer honored the union's request for recognition, it might profitably have bargained with the union about such questions as whether mass terminations were necessary at all, and, if so, when the terminations should occur ; notice to employees of the impending termination ; and rights of employees with respect to rehiring. Such bargaining might well have affected the very terms 62 Chairman McCulloch and Members Jenkins and Zagoria for the majority. Members Fanning and Brown, dissenting, were of the view that the parties had merely provided for the continuation of existing contract terms on a day-to-day basis, and that the statutory policy of maintaining industrial peace and stability during the term set by the contract did not require a holding that the no-strike clause remain in effect under these circumstances. Since the strike was supported by a majority of the bargaining unit, and had no objectives inconsistent with the union's contract demands, it was protected activity, notwithstanding the disapproval of the union leadership. " 176 NLRB No. 76.
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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 7.-Analysis of Methods of Dis
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it! All C cases CA cases CB cases C
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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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