Labor Law - Use of Lockout and Temporary Employees by Multi-Employer Bargaining Group after Whipsaw Strike Not Unfair Labor Practice

Chicago-Kent Law Review Volume 43 | Issue 1 Article 18 April 1966 Labor Law - Use of Lockout and Temporary Employees by Multi-Employer Bargaining Group after Whipsaw Strike Not Unfair Labor Practice James R. Truschke Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation James R. Truschke, Labor Law - Use of Lockout and Temporary Employees by Multi-Employer Bargaining Group after Whipsaw Strike Not Unfair Labor Practice, 43 Chi.-Kent L. Rev. 118 (1966). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol43/iss1/18 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . CHICAGO-KENT LAW REVIEW In the future, debtors such as Sun Oil, having on their books liabilities to which they claim no interest, will be free to pay the amounts owed to a state when escheated in a manner consistent with the Court's opinion without fear of being subjected to double escheat. Only a factual question need be determined and the costly litigation previously required to determine the merits of individual claims can be avoided. PAUL C. KOMADA LABOR LAW-USE OF LOCKOUT AND TEMPORARY EMPLOYEES BY MULTIEMPLOYER BARGAINING GROUP AFTER WHIPSAW STRIKE NOT UNFAIR LABOR PRAcTIE.-In N.L.R.B. v. Brown, 380 U.S. 278, 85 Sup. Ct. 980 (1965), the United States Supreme Court was asked to decide whether the use of the lockout and the use of temporary employees by a multi-employer bargaining group was an unfair labor practice. The Court held that the members of the bargaining group could lawfully employ the lockout technique and hire temporary employees to counteract the effect of a whipsaw strike against them. In the Brown case, respondents were members of a multi-employer bargaining group which was comprised of six retail food stores in Carlsbad, New Mexico. The stores had bargained unsuccessfully with the union for a new contract. When the union struck Food Jet, one of the multi-employer bargaining group, the other members of the group immediately locked out all their union employees and informed them that all employees would be recalled to work when the strike against Food Jet ended. All of the stores involved remained open by using executive personnel and hiring temporary replacements. Upon a complaint filed by the union, the National Labor Relations Board found that the lockout, in conjunction with the hiring of temporary replacements was an unfair labor practice under section 8(a)(1) and 8(a)(3) 1 of the National Labor Relations Act, which prohibits coercive and discriminatory conduct toward union employees. On appeal, the Court of Appeals reversed, holding that, in the absence of an unlawful intent, the non-struck members of a multi-employer bargaining group may lock out their employees and use temporary replacements to combat a whipsaw 1 Section 8(a) Provides that it shall be an unfair labor practice for an employer: (1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 (see below) ... (2) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. ... Section 7 provides in part that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other connected activities for the purpose of collective bargaining. DISCUSSION OF RECENT DECISIONS strike. 2 The Supreme Court, in an eight to one decision, upheld the Court 8 of Appeals. One of the first cases to deal with the problem of a whipsaw strike (a strike against one of the members of a multi-employer group) and a lockout was Morand Brothers v. N.L.R.B. 4 In Morand Brothers, the court, in defining lockouts, said: The lockout should be recognized for what it actually is-the employers' means of exerting economic pressure on the union, a corol5 ary of the unions' right to strike. Thus, the court, in Morand Brothers, by way of dicta, accepted not only that a lockout can be lawful but also that a lockout is a right of the employer. Later, in N.L.R.B. v. Truck Drivers Union,6 the Supreme Court for the first time was faced with the clear issue of whether or not a lockout by nonstruck members of a multi-employer bargaining group was lawful. In this case the union struck one of the members of the multi-employer group. Immediately all members of the group locked out their union employees and closed down completely. The Court held that an economic lockout, one instituted solely for business reasons, 7 was lawful in the absence of an unlawful intent. The Court saw the ultimate problem as a balancing of conflicting interests, i.e., the employees' right to strike versus the employers' right to maintain his business. The Truck Drivers Union case recognized that the employer has certain rights just as the employee has certain rights. In referring to the employers' rights under the National Labor Relations Act, the Court said: Although the Act protects the right of the employees' to strike in support of their demands, this protection is not so absolute as to deny self-help by employers when legitimate interests of employers and employees collide. Conflict may arise, for example, between the right to strike and the interest of small employers in preserving multi-employer bargaining as a means of bargaining on an equal basis with a large union and avoiding the competitive disadvantages resulting from non-uniform contractual terms. 8 In addition, it was pointed out in both the Morand Brothers case and the Truck Drivers Union case that the lockout itself is a legitimate economic 2 N.L.R.B. v. Brown, 319 F.2d (10th Cir., 1965). 8 N.L.R.B. v. Brown, 380 U.S. 278, 85 Sup. Ct. 980 (1965). 4 190 F.2d 576 (7th Cir., 1951). Id. at 582. 6 353 U.S. 87, 77 Sup. Ct. 643 (1957). 7 For a discussion on other types of lockouts see: Doryarsky, Labor Law, 32 Geo. Wash. 5 L. Rev. 415 (1964); Meltzer, Single Employer and Multi-Employer Lockouts Under the Taft-Hartley Act, 24 U. Chi. L. Rev. 70 (1956). 8 N.L.R.B. v. Truck Drivers Union, supra note 6, at 96, 77 Sup. Ct. at 647-8. CHICAGO-KENT LAW REVIEW weapon used by the employer as a strike is used by the employees, 9 and does not in itself show a hostile motivation. 10 In the Brown case, the Court further elaborated on the rights of the employer where they said: Even the Board concedes that an employer may legitimately blunt the effectiveness of an anticipated strike by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another, even if he thereby makes himself virtually strikeproo (...truncated)