Operations In Fiscal Year 1988 - National Labor Relations Board

Enforcement Litigation 141noted that "[S]ection 7 protects the attempts of an employee toinitiate or induce or prepare for group action," but that 'meregriping' is not afforded protection." The court agreed that Duchesne'scontinued complaints were protected concerted activitybecause they were "meant to implore or persuade others to takea stance against [their employer]." It also agreed that Ramos'conduct was concerted and that "[i]t is immaterial that Ramoswas seeking assistance only for himself; and that any proceeds hegarnered might have been subtracted from those received by the[other employees, for] requesting assistance for one's own benefitcan fairly be characterized as 'for mutual aid or protection." Finally,the court, recognizing that "there was an element of 'griping,'as well in at least some of Duchesne's and Ramos's comments,"concluded that "even if [they] were griping, they werealso soliciting, and such activity can be considered concerted activityfor mutual aid or protection under [S]ection 7."C. LockoutsSection 8(a)(3) of the Act generally proscribes employer "discriminationin regard to hire or tenure of employment or anyterm or condition of employment to encourage or discouragemembership in any labor organization." It has long been establishedthat "an employer violates neither § 8(a)(1) nor § 8(a)(3)when, after a bargaining impasse has been reached, he temporarilyshuts down his plant and lays off his employees for the solepurpose of bringing economic pressure in support of his legitimatebargaining position."" It is further established that the useof temporary replacements to maintain operations following alockout of employees by the nonstruck employers of a multiemployerbargaining association is likewise not proscribed by Section8(a)(1) or (3)." Relying on these two Supreme Court cases,the Board has held that an employer does not violate Section8(a)(3) by hiring temporary employees after lawfully locking outits permanent employees to apply economic pressure in supportof a legitimate bargaining position." In the second case to reachthe courts of appeals on this issue, the District of Columbia Circuit,agreeing with the Board, held that Section 8(a)(1) and (3) ofthe Act, as the Supreme Court has analyzed them, compel theBoard's conclusion that an employer may, for the sole purpose ofstrengthening its bargaining position, continue to operate its businesswith temporary workers after lawfully locking out its permanentemployees."12 American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965).11 NLRB v. Brown Food Store, 380 U.S. 278 (1965).12 Harter Equipment, 280 NLRB 597 (1986), enfd. sub nom. Operating Engineers Local 825 v. NLRB,829 F.2d 458 (3d Cir. 1987); National Gypsum Co., 281 NLRB 593 (1986).13 Boilermakers Local 88 v. NLRB, 858 F.2d 756, enfg. National Gypsum Co., supra.