Operations In Fiscal Year 1988 - National Labor Relations Board

80 Fifty-Third Annual Report of the National Labor Relations BoardThe majority concluded, however, that a strike by the employer'semployees was not an unfair labor practice strike becausethere was insufficient evidence that one of the reasons for thestrike was the strikers' desire to protest the employer's unlawfulinsistence to impasse on the waiver of access to the Board.Member Johansen, dissenting, criticized the delay on themotion and would not have reconsidered the Board's prior decisionin the case, and therefore would have adhered to the priorholding that the proposed waiver of access to the Board was amandatory subject of bargaining because it "is merely derivativeof the waiver of the right to strike"—which clearly is a mandatorysubject of bargaining. Member Johansen stated that the proposedwaiver would not apply to a situation in which an employeewas alleging that discipline imposed under the no-strike provisionwas discriminatory or pretextual.Member Johansen also stated that he adhered to his previousfmding that the employer had not engaged in unlawful surfacebargaining, and he declared that he would continue to reviewbargaining proposals to the extent that they relate to bargainingtactics as evidence of the totality of circumstances of bargaining.He emphasized, however, that he would not find an 8(a)(5) badfaithbargaining violation based on the content of allegedly unreasonablebargaining proposals viewed in isolation from the contextof negotiations.2. Unilateral ChangesIn Murphy Oil USA, 6° the Board held that the respondent violatedSection 8(a)(5) as well as 8(a)(3) and (1) by unilaterallywithdrawing certain sickness and disability benefits from formerstriking employees.The record showed that certain employees became sick orwere injured during their lawful economic strike and could notreturn to work immediately when the strike ended. These employeesreturned later, but the respondent denied them certainbenefits for their continued disability after the strike ended.The Board found that the collective-bargaining agreementmade employees entitled to benefits "in accordance with theterms of the Plan existing when [their] sickness or disability occurred."The respondent made no attempt to dispute the administrativelaw judge's interpretation, with which the panel agreed,that the terms of the plan, as existed before the strike ended, entitledemployees to such benefits if they continued to be disabledafter the strike ended.In arriving at its holding, the panel noted the parties' agreementgave the respondent final authority to "interpret, apply,amend or revoke" the plan. However, it found that whateverright the respondent may have had to make prospective changes60 286 NLRB No. 104 (Chairman Dotson and Members Stephens and Cracraft).