1 - National Labor Relations Board

142 Thirty-fourth Annual Report of the National Labor Relations Board
sustained the Board's dismissal of a charge that the employer
had violated section 8(a) (5) and (1) of the Act by insisting on
an arbitration clause providing for specific enforcement in a
state court of an arbitrator's no-strike or no-lockout order and
the waiving of the right of the parties to remove an action for
such enforcement to a Federal court. Since the provisions in question
merely described the way in which the proposed arbitration
and no-strike clause would function, they were essentially components
of the employer's arbitration proposals, bearing the same
relationship to wages, hours, and working conditions as any typical
arbitration and no-strike clauses, and hence were mandatory
subjects for bargaining. In the court's view, the proposals were
not so clearly inconsistent with national labor policy as to indicate
the employer's bad faith in making them. The employer
was not obliged to guess the ultimate resolution of the issues
of law involved ; as long as it reasonably believed, at the time
the bargaining took place, that the proposals would prove legally
enforceable, it could not be convicted of bad faith for making
them. To require a party to guess at its peril how difficult questions
of law would be resolved would discourage novel proposals
responsive to important objectives of national labor policy, and
would require the Board, and subsequently the court, to decide
the legality of contract proposals not in the context of a specific
dispute, but in the abstract. In the instant case, the court found
the employer could reasonably have believed that such arbitrator's
awards could be specifically enforced, at least in state courts,
and, since the bargaining took place before the Supreme Court's
decision in the Avco case, 5° that suits to enjoin strikes brought in
state courts could not be removed to Federal courts. The court
concluded that the employer's overall conduct did not indicate
bad faith, and, under the circumstances of this case, the attempt
to make the arbitration clause effective against a union which
notoriously preferred strikes to arbitration could not, without
more, show the absence of good faith.
d. Duty To Furnish Information
Several cases decided by courts of appeals during the year involved
issues concerning the duty of an employer to supply to
the bargaining representative information which is "relevant and
necessary" to the intelligent performance of its collective-bargaining
and contract administration functions. In two cases, courts
"Ave° Corp. v. Aero Lodge 735, IAM, 390 U.S. 557 (1968), holding that the Federal courts
did have removal jurisdiction over suits brought in state courts to enjoin strikes.