Operations In Fiscal Year 1988 - National Labor Relations Board

142 Fifty-Third Annual Report of the National Labor Relations BoardThe court first agreed with the Board that hiring temporaryreplacements was not inherently destructive of the rights of theemployees. Stating that the question raised is whether an employer'shiring temporary replacements for the employees it haslocked out is inherently destructive of the "process" of collectivebargaining, the court concluded that such employer conduct haslittle if any impact on the employees' right to bargain. The courtfound no reason to expect that hiring temporary replacements forlocked-out employees would create a cleavage within the groupof locked-out employees. Moreover, the court found nothingabout hiring temporary replacements for locked-out employeesthat discourages collective bargaining by making it seem a futileexercise in the eyes of employees."Second, the court agreed with the Board that, to the extent theemployer's conduct had a comparatively slight impact on employeerights, the conduct had a legitimate, substantial, and sufficientbusiness justification. The employer's sole purpose in hiringreplacements and continuing to operate was the same as its purposein locking out employees: to secure a new collective-bargainingagreement on favorable terms. The court concluded thatthe business justification of bringing economic pressure to bear insupport of a legitimate bargaining position was, "as the Boardcorrectly noted, 'unassailable' in light of American Ship Building."1 5D. The Bargaining Obligation1. The Duty to Furnish InformationAn employer's duty to bargain collectively, under Section8(a)(5) and 8(d) of the Act, obligates it to provide the employees'statutory bargaining representative, on request, with informationrelevant to the representative's performance of its collective-bargainingduties." In a case decided this year, the Sixth Circuitupheld the Board's determination that the United States PostalService violated its statutory bargaining obligation by refusing tofurnish a local of the American Postal Workers Union with thenames of union officials who had applied for supervisory positionswith the Postal Service." The international union hadadopted a constitutional amendment providing that applicants forPostal Service supervisory positions could not hold union office.Thereafter, the local union asked the Postal Service to tell itwhich union officers had applied for supervisory positions andthe Postal Service refused.14 858 F.2d at 762-764.16 858 F.2d at 767.16 See, e.g., Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co.385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).17 NLRB v. Postal Service, 841 F.2d 141.