Laclede Gas Co.

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