Laclede Gas Co.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 243 (N.L.R.B. 1970)

LACLEDE GAS COMPANY 243
Laclede Gas Company and Oil, Chemical and Atomic
Workers International Union, Local No. 5-6,
affiliated with Oil , Chemical and Atomic Workers
International Union , AFL-CIO . Case 14-CA-4411
December 14, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, BROWN , AND JENKINS
On October 22, 1968, the National Labor Relations
Board issued a Decision and Order' in this proceed-
ing, in which it found, in effect, that the Respondent
had violated Section 8(a)(5) of the National Labor
Relations Act, as amended, by laying off certain
employees during contract negotiations with the
Union without regard to seniority provisions of the
parties' recently expired agreement. The Board's view
was that the reduction in force was not a lockout used
as a bargaining tactic but a layoff for business reasons
to which established seniority practices applied, and
since these seniority rules were not in issue during
negotiations the Respondent's departure from such
conditions was a unilateral change proscribed by
Section 8(a)(5) of the Act,2
Subsequently holding that the reduction in work
force was not a layoff but a bargaining lockout
concerning which Respondent was not obligated to
bargain, the Court of Appeals for the Eighth Circuit
thereupon reversed the Board's conclusion that
Respondent's deviation from seniority practices
constituted an unfair labor practice under Section
8(a)(5) of the Act.3 The court, however, remanded the
case to permit the Board to consider, if it deems
appropriate, whether the lockout nevertheless violat-
ed Section 8(a)(1) and (3) of the Act and whether,
should it resolve such issue , "the interests of the
employer-employees are to be balanced as suggested
by Lane [Darling & Co.] v. N.L.R.B., 418 F.2d 1208
[(C.A.D.C.)]; and if so, the factors to be considered
and the weight to be given to them in the balancing
process" (421 F.2d at 618). The court expressed no
views of its own on the merits of the issue.
On June 5, 1970, the Board issued a notice inviting
the parties' views on the matter remanded by the
court, and responding statements of positions were
thereupon filed by all parties.
Respondent contends that the remanded issues
should not be reached but, if they are, the hearing
should be reopened to permit Respondent to defend
against the claim of violation. Respondent takes the
position, inter alia, that the circumstances of the
lockout were not so inherently prejudicial to employ-
ee interests and devoid of significant justification to
warrant finding an unfair labor practice in the
absence of an unlawful motive and that, even if a
balancing determination be made, the record disclos-
es legitimate and substantial reasons to justify the
Respondent's conduct. The General Counsel and the
Charging Party assert, on the other hand, that the
Board should reach the remanded questions and find
the lockout unlawful under the court's remand.
Upon consideration of the record as a whole,
including the aforementioned decisions and all papers
filed, we conclude that we can resolve the matter on
the evidence before us, and we find merit in
Respondent's contention that the conduct in question
was not inherently so prejudicial to the interests of the
employees as to warrant finding it violative of Section
8(a)(1) or (3) of the Act.
The undisputed facts are fully set forth in the Trial
Examiner's Decision. The Respondent and Union
have had a long bargaining relationship. The relevant
events occurred at the time the parties were negotiat-
ing a new contract in 1967. Prior to the expiration of
the contract, and in anticipation of a possible strike,
the Respondent began to consolidate its various street
crews and made temporary reassignments of some of
its personnel in order that jobs could be completed
before the expiration date, with as little excavation
exposed as possible, so as to minimize hazard to the
public and to reduce the exposure to company
facilities to the danger of sabotage. The parties
reached an impasse in negotiations and on August 4,
1967, all street department employees who were
working on construction crews, together with some
equipment operators who worked with those crews,
were locked out, while employees engaged in other
work of the street department or elsewhere were not
furloughed. As a result, employees were locked out in
disregard of seniority without being allowed to
"bump" into other jobs in accordance with estab-
lished practice, and some with lower seniority
continued to work during the approximately 6 days of
the lockout. While the Respondent did not follow its
normal seniority pattern customarily used in shifting
employees from job to job during vacation periods,
the record shows no unlawful motivation, and none
was alleged, in its selections of employees for
assignment to the construction crews.
We have already found in our original decision4
that the temporary shutdown of the construction
crew's operations "was actually necessitated by the
exigencies of the business operation"; that because of
1 173 NLRB 243 layoff or a lockout.
2 Member Brown, concurring in the result, indicated he would reach the 3 Laclede Gas Company v. N LR.B., 421 F.2d 610.
same conclusion whether the reduction in force were characterized as a 4 173 NLRB 243, 244.
187 NLRB No. 32
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the anticipated strike Respondent's officials "found
that operating on the basis of daily contract exten-
sions was difficult, unproductive, and potentially
dangerous to the public"; and that the lockout "was
motivated by a desire to eliminate those operations
which negotiations had rendered tentative and to
protect the Respondent from over-extending itself at a
critical moment," all of which were "essentially
defensive purposes . . . ." Given these undisputed
objectives, which are clearly valid justifications for
the action, and in light of the finding that the
Respondent was not motivated by any desire to
undermine the Union,5 we are unable to see what
purpose would be served by reopening the hearing.
Nor can we perceive any way in which, in these
particular circumstances, there was such interference
with employees statutory rights as to rise to the level
of a violation of the Act.
The U.S. Supreme Court has held6 that if it can
reasonably be concluded that the employer's discrimi-
natory conduct was "inherently destructive" of
important employee rights, no proof of an antiunion
motivation is needed to find an unfair labor practice
even if there is evidence of motivation by business
considerations; but where the adverse effect on
employee rights is "comparatively slight," an antiun-
ion motivation must be proved to sustain the charge if
the employer adduces evidence of legitimate and
substantial business justifications; in either situation,
however, once discriminatory conduct which could
adversely affect employee rights to some extent has
been proved, the burden is upon the employer to
establish that it was motivated by legitimate objec-
tives.
Applying these principles, we conclude that Res-
pondent's disregard of seniority was not, per se, a
violation of Section 7 rights. Although Respondent's
action may have afforded continuity of employment
to some junior employees to the possible detriment of
certain long-service employees, the layoffs were
without regard to union membership status of any
individual in either group and were based solely on
their work assignment at the time. Thus, the layoffs
out of seniority could have discouraged or impaired
a Ibid ". the evidence indicates , the layoff was simply dictated by
considerations of efficiency and apprehension of the effects of the strike
6 N L R. B. v. Great Dane Trailers, Inc., 388 U S 26
the exercise of Section 7 rights in only the most
peripheral manner , if at all . Therefore, any adverse
effects which might be said to have existed were so
slight as to require proof of antiunion motivation,
which has been neither shown nor asserted. And even
if some adverse effect might be found here, we are
satisfied that the Respondent's conduct was not
impermissibly inconsistent with statutory employee
rights and that Respondent has sustained its burden
of establishing legitimate objectives which outweigh
any such possible impact on employees,7 particularly
when one considers that the layoffs were intended to
be, and were, temporary and incidental to what the
court of appeals has held to be a lawful, tactical
bargaining maneuver.
For the above reasons, we find no ground for
concluding that the Respondent violated the Act.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed in its entirety.
MEMBER FANNING , dissenting:
I am not at all prepared to say that Respondent's
disregard of its employees' seniority rights when it
locked out some but not all unit employees to, inter
alia, bring pressure upon the Union to settle an
economic dispute on Respondent 's terms did not have
an adverse impact on its employees ' exercise of
Section 7 rights . Cf. N.L. R.B. v. Erie Resistor Corp.,
373 U.S. 221. Assuming some adverse impact, as my
colleagues do in the final analysis , I believe it is
improper for us to speculate as to the Respondent's
business justification for ignoring seniority rights. See
N. L. R. B. v. Great Dane Trailers, Inc., 388 U .S. 26, 35.
In my opinion , before we attempt to answer the
questions involved in the Court's remand, we should
remand this case for further hearing before a Trial
Examiner.
7 The American Ship Building Company, v. NLRB, 380 US 300,
308-315, N LR B v Brown Food Stores, et al, 380 U.S 278. See Lane v
N L R B (Darling & Co), supra