Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices • 91the Board found "Marzella's testimony [to be] far too impreciseand uncertain to convey other than his general impression.' "The Board concluded that the above factors did not constitutesufficient objective considerations to warrant a good-faith doubt.5. Processing Grievances Under Expired ContractIn Litton Business Systems," the Board applied the rule of Indiana& Michigan Electric Co. 88 to the respondent's layoff of employeesin connection with a change in production methods. Thepanel majority of Members Babson and Stephens found that therespondent violated Section 8(a)(5) by repudiating its obligationto process grievances under its expired collective-bargainingagreement and to arbitrate grievances originating after expirationbut "arising under" the contract within the meaning of NoldeBros. v. Bakery Workers Local 358." The majority, however,found that the grievances at issue did not actually "arise under"the expired agreement and therefore were not arbitrable aftercontract expiration under Nolde. In addition, it found that the respondentviolated Section 8(a)(5) by refusing to bargain over thelayoffs as an effect of the decision to alter production methods.Chairman Dotson dissented.In 1980, the respondent decided to convert its Santa Claraplant from a hot-type to a cold-type printing operation. The conversionresulted in the layoff of 10 employees. The parties' collective-bargainingagreement, which had expired in 1979, providedthat, in case of layoffs, length of service would be determinative"if other things such as aptitude and ability are equal." Therespondent neither notified the union in advance of the .layoffsnor laid employees off by seniority. The union grieved the layoffsand also sought to "discuss this layoff and its impact." Therespondent refused to process the grievances and expressed awillingness to bargain over the effects of the layoffs but not thelayoff decision itself.The majority interpreted the parties' expired contract as subjectingthe respondent to a "potentially viable" obligation to arbitratepostexpiration grievances and viewed the respondent'sconduct as an unlawful repudiation of that obligation. Further,the majority disagreed with the administrative law judge that thelayoff could not be discussed separately from the nonnegotiabledecision to convert the plant.The majority viewed the decision to lay off employees as onepossible outcome of the conversion, and applied Morco Industries"to fmd that the respondent was obligated to bargain overthe layoff decision as an effect of the conversion. Finally, themajority remedied the repudiation violation by ordering the re-87 286 NLRB No. 79 (Members Babson and Stephens; Chairman Dotson dissenting).88 284 NLRB No. 7 (May 29, 1987).89 430 U.S. 243, 255 (1977).9° 279 NLRB 762 (1986).