Petition — Blue Grass Provision Co. v. National Labor Relations Board

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80-1544

No.

In the Supreme Court of the United States

October Term, 1980

BLUE GRASS PROVISION CoO., INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

WILLIAM K. ENGEMAN

(Counsel of Record)

TAFT, STETTINIUS & HOLLISTER

600 Dixie Terminal Building

Cincinnati, Ohio 45202

(513) 381-2838

Counsel for Petitioner

Of Counsel:

Paut C. SUNDERLAND

600 Dixie Terminal] Building

Cincinnati, Ohio 45202

E. L. Menpenmatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED

1. Whether, as this Court will decide this term in

First National Maintenance Corporation v. National Labor

Relations Board, No. 80-594, an employer’s decision to

terminate a portion of its operations solely for legitimate

business reasons is itself a mandatory subject of bargain-

ing under Section 8 (a) (5) of the Act?

2. Whether, if there is a duty to bargain concerning

an employer’s decision to terminate a portion of its opera-

tions solely for legitimate business reasons and the em-

ployer has engaged in good faith bargaining, the em-

ployer must reach impasse with the union before im-

plementing the decision?

TABLE OF CONTENTS

I ll ae 2

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pemcmtory Provisions Involved ................1.<.<cccecescscceeesss 2

hc ERE E TS eC ee 2

Reasons for Granting the WYit 2.0.02... .....eceecegeeceesceeeeeee 5

SE sla I Ee Ee 16

Appendices—

A. Judgment and Opinion of the Court of Appeals

Decision and Order of the National Labor Re-

a ERLE eee ea Ge Te Al

Authorities

CASES

American Ship Building Co. v. NLRB, 380 U.S. 300

ge CREE SAREE ear Ve oe oo ee 10, 13

A. H. Belo Corp., 411 F.2d 959 (5th Cir. 1969), cert.

Geen, gee US. 1007 (1970) .......................-............. i)

Brockway Motor Trucks v. NLRB, 582 F.2d 720 (3d

Cir. 1978), on remand, 251 NLRB No. 23 (1980) ........ 6,9

Fibreboard Paper Products Corp. v. NLRB, 379 USS.

RECEP er ROE en a ae 5,9

Houston Shopping News Co. v. NLRB, 554 F.2d 739

GRRE a eee a SO Sa g

Lane v. NLRB, 418 F.2d 1208 (D.C. Cir. 1969), affirm-

ing sub nom., Darling & Co., 171 NLRB 801 (1968) 7

NLRB v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir.

1965), cert. denied, 382 U.S. 1011 (1966) 00... 6

PRECEDING PAGE WAS BLANK

NLR: v. William J. Burns International Detective

Agency, Inc., 346 F.2d 897 (8th Cir. 1965) ................ 6

NLRB v. Citizens Hotel Co., 326 F.2d 501 (5th Cir.

RUTTTET--corcichessstahioh-ccleceisaconebantididan-actassdo decctghaleiicnipmiieomateleies vamos 9

NLRB v. Dalton Brick & Tile Corp., 301 F.2d 886

Cais SI Siclits WUMII > ncn cs nniccucenesianiat auinisves cuts tapas 11,13

NLRB v. Insurance Agents’ International Union, 261

SE MUI sccreanien pilanhsaSedeaanseetiiopntadedic Amina ncoaaminaciadie 11,13

NLEG 0. Katz, 300 US. T36 (1062) ncn c ences 10

NLRB v. Edward M. Rude Carrier Corp., 79 CCH Lab.

Cae Bene Cee Gas Bere) tk ee 6

NLRB v. J. P. Stevens & Co., Inc., Gulistan Div., 538

gw | El A; ee na ete niet Ue ae 9

NLRB v. Thompson Transport Co., 406 F.2d 698 (10th

ele IP eeetecaia acces tnstiaaheddicsoindicadetnaisicuincdcanleacciassuinacninitas 6

NLRB v. Wooster Division of Borg-Warner Corp., 356

Oe I 0 I erecct ie calteccges ces ncscsecpieicbvethntditbonnsnsunitnsaddantce 13

N.C. Coastal Motor Lines, Inc., 219 NLRB 1009 (1975),

enforced, 542 F.2d 637 (4th Cir. 1976) 20000000... 9

Philip Carey Mfg. Co., 140 NLRB 1103 (1963), modi-

fied, 331 F.2d 200 (6th Cir. 1964) oo. 13

H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970) ................ 13

Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (8th Cir.

MOPED ‘scdidsiechiecicsipetecsninicctsdogsecttascnedbasnabtdutiotad tte tao? 6

Taft Broadcasting Co.. WDAF AM-FM-TV, 163 NLRB

475 (1967), affirmed sub nom., American Federation

of Television & Radio Artists v. NLRB, 395 F.2d 622

een Mes: ANUP - vecekcossdosnstaishcaecanscpsaserahereebbionetdoniesaticendas 8,9

Winn-Dixie Stores, Inc., 243 NLRB No. 151 (1979)

STATUTORY PROVISIONS

28 USC §1254(1) |

9 EC Sibel es, 2,4, 10, 11, 12, 13

eB | RT ae iver REN GET AE EN

ee NE I aseattieestidecncch sealcscatecsbnccslsveupceibiaabncitbatteenientiben

OTHER AUTHORITIES

Cox, Labor Decisions of the Supreme Court at the Oc-

tober Term, 1957, 44 Va. L. Rev. 1057 (1958) ............

Epstein, Impasse in Collective Bargaining, 44 Texas L.

UT a a akin

Stewart and Engeman, Impasse, Collective Bargaining,

and Action, 39 U. Cin. L. Rev. 233 (1970) 0.

No.

In the Supreme Court of the United States

October Term, 1980

BLUE GRASS PROVISION CO., INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioner, Blue Grass Provision Co., Inc.,! prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Sixth Circuit en-

forcing an order of the National Labor Relations Board.

1. In accordance with Supreme Court Rule 28.1, the peti-

tioner states that it has no parent, subsidiary, or affiliated com-

panies.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A at Al)?

is reported unofficially at 105 LRRM 3487. The opinion

and order of the National Labor Relations Board (App.

A at A8) are reported at 238 NLRB No. 128 (1978).

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit enforcing the Board’s order was en-

tered on December 9, 1980. This petition was filed within

ninety (90) days of that date. The jurisdiction of this

Court is invoked under 28 USC §1254(1). The jurisdiction

of the Court of Appeals was invoked under Section 10(f) of

the National Labor Relations Act, as amended, 29 USC

§160(f).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the National Labor Rela-

tions Act, as amended, are Sections 8(a) (1), 8(a) (3), 8(a)

(5) and 8(d). They are set forth in Appendix B.

STATEMENT OF THE CASE

The petitioner is a small meat processor with a long

history of peaceful relationships with the two labor organi-

zations representing its employees.

2. “App. A” and “App. B” refer to the appendices to this

petition for certiorari. Appendix A contains the judgment and

opinions of the court below and the decisions and orders of the

National Labor Relations Board and the Administrative Law

Judge. Appendix B contains the relevant provisions of the Na-

tional Labor Relations Act.

On November 12, 1976, petitioner was notified by

the Teamsters local union representing its five delivery

drivers, that the union was cancelling its collective bargain-

ing agreement effective with its expiration on January 31,

1977. The parties subsequently agreed to extend the agree-

ment until February 11, 1977.

Prior to any meeting with the union, the petitioner had

investigated alternative methods of delivery in order to

lessen costs and increase its flexibility. During the course

of two meetings conducted in late January of 1977, peti-

tioner’s negotiator and president, Bill Rice, notified the

union that petitioner wanted to switch to a common carrier

for its deliveries and suggested that petitioner would be

willing to phase out the employees as they retired over the

next four years. The union agent refused to negotiate an

agreement which would eliminate the bargaining unit

through attrition and instead proposed an absolute bar on

subcontracting of unit work. The second and final meet-

ing between the parties was held on January 28, 1977.

The union requested no negotiations at any time after

January 28, 1977. Rather, on the evening of January 31,

1977, the union agent met with the petitioner’s delivery

drivers. He informed the drivers about his subcontract-

ing discussion with petitioner. He stated that he could not

negotiate a contract that would provide for subcontracting

away bargaining unit work. The employees then voted to

strike.

Petitioner’s president, having received no contact from

the union, telephoned the union’s agent on the morning of

February 7. In that telephone call, he told the union agent

of the company’s continued interest in going to a common

carrier. The union agent informed petitioner’s president

that he would do everything in his power to prevent peti-

tioner from going to a common carrier.

On the following day, February 8, petitioner’s presi-

dent sent a letter to the union’s agent stating that he was

still interested in talking with the union and asked the

agent to contact him if they could meet. Nothing further

was heard from the union prior to the expiration of the

extension on February 11.

After the telephone conversation with the union on

February 7, the three Rice brothers, principals in peti-

tioner, faced with the union’s adamant position on discon-

tinuing deliveries, met and reached agreement with a com-

mon carrier to take over the petitioner’s delivery operations

the following Monday, February 14, if no agreement was

reached with the union prior to the expiration of the

extension February 11. This was done in order to insure

delivery of the company’s perishable meat. The Rice

brothers assumed that there would be some response from

the union in light of the impending expiration of the agree-

ment and President Bill Rice’s February 8 letter.

Having heard nothing from the union by the end of

the work day Friday, February 11, President Rice notified

the drivers that petitioner would be using an outside car-

rier and that they need not report to work the following

Monday. The union struck petitioner without further

notice or discussion and picketing continued up to the time

of the hearing before the administrative law judge, De-

cember 14, 1977.

The petitioner immediately approached the Federal

Mediation and Conciliation Service requesting that a meet-

ing be scheduled to resolve the dispute. The union refused

this unconditional offer to meet and no meetings were held

up to the date of the hearing before the administrative law

judge.

The National Labor Relations Board held that the peti-

tioner had violated Sections 8(a) (1) and (5) of the Act “by

)

unilaterally subcontracting out all of its truck driving work

effective February 14, 1977.” (App. A at A23) The

Board found that the parties were not at “impasse” over

the petitioner’s proposal to phase out deliveries. The

Board scored petitioner’s feilure to communicate its im-

mediate discontinuance of its delivery operations “with

any definite particularities.” (App. A at A23) It noted

that the petitioner’s letter of February 8 requesting further

meetings was “inconsistent with the notion that matters

were deadlocked.” Applying its per se rule that “[u]ntil

the collective bargaining process has been exhausted, no

impasse can occur,” (App. A at A23) the Board ordered

reinstitution of the delivery operation, reinstatement of the

drivers and back pay. (App. A at A28-29)

The Court of Appeals for the Sixth Circuit, on review,

held that petitioner “had breached its duty to bargain by

instituting a unilateral change before an impasse had been

reached on a subject of mandatory bargaining.” (App. A

at A5) The Court said it was “mindful that Blue Grass

is a small company with a history of relatively peace-

ful labor relations and that the effect of the reinstatement

order may cause it hardship.” Nonetheless, it granted en-

forcement of the Board’s order. (App. A at A7)

REASONS FOR GRANTING THE WRIT

1. The first issue presented by this case is already

before the Court on substantially similar facts in First Na-

tional Maintenance Corporation v. National Labor Relations

Board, October Term, 1980, No. 80-594. This Court granted

certiorari in that case, apparently to resolve the very real

divergence among the circuits on this issue. The Sixth

Circuit below has interpreted Fibreboard Paper Products

Corp. v. NLRB, 379 U.S. 203 (1964) as automatically im-

posing a bargaining obligation on the employer, despite the

substantial modification of the employer’s operation which

involved total cessation of product deliveries and reduction

of its employee work force by about 20%. The impact on

the employer’s business here was proportionally greater

than that in First National Maintenance Corp., supra.

The Sixth Circuit’s per se approach here is at clear variance

with the “presumption” approach utilized by the Second

Circuit in that case as well as the approaches of the

Fourth, Eighth and Tenth Circuits discussed in detail in the

petition filed in that case.* It is also diametrically opposed

to the decision of the Eighth Circuit in NLRB v. Adams

Dairy, Inc., 350 F.2d 108 (8th Cir. 1965), cert. denied, 382

U.S. 1011 (1966), holding that discontinuance of an em-

ployer’s delivery operations for economic reasons did not

require bargaining. The only practical way of preserving

this petitioner’s legal rights, pending this Court’s decision

in First National Maintenance Corp., is by granting the

Writ.

2. This case also presents a second, closely related,

and, if anything, even more significant legal issue. If, as

here, an employer contemplates legitimate major business

action—what is the scope of any bargaining which at-

taches? This issue is not directly presented by First Na-

tional Maintenance Corp., supra. The employer there un-

dertook no bargaining whatsoever regarding its decision

to change its business operation. The instant case, how-

ever, presents the full range of issues raised by the Board’s

3. See Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1039

(8th Cir. 1976); NLRB v. William J. Burns International De-

tective Agency, Inc., 346 F.2d 897 (8th Cir. 1965); NLRB v. Ed-

ward M. Rude Carrier Corp., 79 CCH Lab. Cas. %11,615 (4th

Cir. 1976); NLRB v. Thompson Transport Co., 406 F.2d 698 (10th

Cir. 1969). Compare: Brockway Motor Trucks v. NLRB, 582 F.2d

720 (3d Cir. 1978).

intrusive approach to the process of implementing man-

agerial judgments.

Whether and upon what standard Congress has dele-

gated to the NLRB and the courts the power to regulate

the timing or the manner in which an employer takes ac-

tion solely in order to further legitimate business objectives

is an issue of paramount importance to National Labor

policy. It will be raised and discussed by this Court in ad-

dressing the management rights issues in First National

Maintenance Corp. It will substantially advance coherent

presentation and decision to have a record presenting the

entire subject directly.

3. . The incorrect decisions rendered in this case below

graphically illustrate the problem raised by the scope of

bargaining issue. The Court of Appeals and Board have

here held that an employer may not take action to further

its legitimate business objectives until it has reached im-

passe with the union on that specific action. The Court

of Appeals candidly acknowledged that the “state of affairs

that constitutes an impasse is not subject to precise defini-

tion.” (App. A at A5) It noted equally candidly that

the District of Columbia Circuit in Lane v. NLRB, 418 F.2d

1208 (D.C. Cir. 1969), affirming sub nom., Darling & Co.,

171 NLRB 801 (1968), had taken a different view of the

impasse requirement. The Court of Appeals, however,

went on to distinguish the Lane case based upon its own

analysis of the length of negotiations, the depth of the

parties’ feelings, the number of concessions the company

had made in negotiations and the company’s concern with

the timing of a possible strike. (App. A at A6-7)

These simply are not matters mandated by Congress

for interpretation by the Board or the Courts of Appeals

in second-guessing the timing of employer business ac-

tions. Neither the Board nor the courts have been em-

its managerial discretion, an employer may take legitimate

actions in furtherance of its business interest which may

indirectly or directly affect some or all of the conditions of

employment of its employees. The practical impossibility

of fairly and correctly applying the Board’s impasse rule

is apparent when the “rule” itself is seen as it is—nothing

more than the Board’s imprecise weighing of an amalgam

of factors. For example, in Taft Broadcasting Co.. WDAF

AM-FM-TV, 163 NLRB 475, 478 (1967) the Board stated:

Whether a bargaining impasse exists is a matter of

judgment. The bargaining history, the good faith of

the parties in negotiations, the length of the negotia-

tions, the importance of the issue or issues as to which

there is disagreement, the contemporaneous under-

standing of the parties as to the state of negotiations

are all relevant factors to be considered in deciding

whether an impasse in bargaining existed.

No business person or lawyer, can with confidence pre-

dict the outcome of the Board’s review of a decision in-

volving .uch factors. The Board’s review, of course, is

pure hindsight, made long after the decision has been

implemented, the effects of the decision realized, and po-

tential back pay liability is accrued. See generally, Ep-

stein, Impasse in Collective Bargaining, 44 Texas L. Rev.

769, 777 (1966); Stewart and Engeman, Impasse, Collective

Bargaining, and Action, 39 U. Cin. L. Rev. 233, 240-248

(1970). As a result, through the control of its impasse

doctrine, the Board has been able to hold hostage through

extended negotiations, or reverse, such traditional man-

agerial decisions as a radio station’s decision to change its

method of broadcasting, a manufacturer’s decision to close

a sales branch, and a trucking company’s discontinuance of

unprofitable runs.‘ It is hard to say that a “far heavier hand

in controlling .. . the prerogatives of private business man-

agement” is not already being wielded, despite Mr. Justice

Stewart’s warning in Fibreboard Paper Products, supra,

that this is a path “which Congress certainly did not choose

when it enacted the Taft-Hartley Act”. 379 U.S. 203 at

225-26. (Stewart, J., concurring).

The Court of Appeals for the Fifth Circuit fully recog-

nizes the plight to which a per se impasse rule would put

employers. In Houston Shopping News Co. v. NLRB, 554

F.2d 739 (5th Cir. 1977), that court found that the absence

of a bargaining impasse was not a bar to employer action

taken solely to further its legitimate business objectives.

See also NLRB v. J. P. Stevens & Co., Inc., Gulistan Div.,

538 F.2d 1152, 1162 (5th Cir. 1976); A. H. Belo Corp., 411

F.2d 959, 971 (5th Cir. 1969), cert. denied, 396 U.S. 1007

(1970). The Fifth Circuit has recognized: “The union

has no absolute veto power under the Act. Nor do ne-

gotiations have to exhaust themselves to the point of the

so-called impasse.” NLRB v. Citizens Hotel Co., 326 F.2d

901, 505 (5th Cir. 1964). Compare: Winn-Dixie Stores,

Inc., 243 NLRB No. 151 (1979) (in which the Board has

criticized the Fifth Circuit’s view).

4. See Taft Broadcasting Co., WDAF AM-FM-TV, 163

NLRB 475 (1967), affirmed sub nom., American Federation of

Television & Radio Artists v. NLRB, 395 F.2d 622 (D.C. Cir.

1968) holding an employer could implement chzAges in pre-re-

cording and interchange of announcer policies after 27 meetings

with the union had produced an impasse. The Court of Appeals

affirmed, specifically reserving the question of whether impasse

was required, 395 F.2d at 629; Brockway Motor Trucks, Div. of

Mack Trucks, Inc., 251 NLRB No. 23 (1980) on remand from

Brockway Motor Trucks v. NLRB, supra, 582 F.2d 720 (3d Cir.

1978) holding an employer had no need for “immediate action” in

closing a facility after sustaining seven years of losses totalling

over $1,400,000.00, two months of unsuccessful wage r >gotiations

and a two month strike; N. C. Coastal Motor Lines, Inc., 219 NLRB

1009, 1014 (1975), enforced on other grounds, 542 F.2d 637 (4th

Cir. 1976).

Clearly, a very real split exists among the circuit

Courts of Appeals on this issue. Although this Court has

never suggested that Congress intended so radical a regula-

tion of business decisions to be the province of the National

Labor Relations Board and the courts, its decisions are

being cited by the Board and some courts as if it had.

4. Both lines of authority discussed above stem from

the decision of this Court in NLRB v. Katz, 369 U.S. 736

(1962). The Court there held that an employer’s unilateral

implementation of several wage and benefit changes, dur-

ing collective bargaining negotiations over the very subjects

of wage and benefit increases, violated Sections 8(a) (5)

and (1) of the Act. The Court’s opinion speaks of an

obligation to first give notice and an opportunity to bargain

to the statutory bargaining representative of the employees

before taking such an action. The Court expressed its con-

cern that the unilateral nature of the action on a subject

already under negotiation was much the equivalent of a

“flat refusal” to bargain. 369 U.S. at 743. Of course,

explicitly the Court was speaking to a situation in which

the union was attempting to negotiate changes in tradi-

tional areas of its concern, i.e., wages and benefits. The

attempt was obviously being undercut by the employer’s

unilateral action. The Court in no way considered the

situation in which the employer was attempting to imple-

ment a legitimate economic change in its business opera-

tion and the union was opposed to the change.

This Court has never suggested that the timing of such

legitimate action is subject to Board or judicial review or

approval. On the contrary, in American Ship Building Co.

v. NLRB, 380 U.S. 300 (1965), this Court rather broadly

suggested that it was not. In that case, the Court struck

down the Board’s attempt to regulate employer lockouts

by expansive reading of Sections 8(a)(1) and (3) of the

Act. The Board had issued a Section 8(a) (5) complaint

as well but made no findings regarding that allegation.

However, this Court specifically addressed the Section

8(a) (5) point:

Although the complaint stated a violation of §8(a) (5)

as well, the Board made no findings as to this claim,

believing that there would have been no point in en-

tering a bargaining order because the parties had long

since executed an agreement. The passage quoted

below in the text of this opinion from Labor Board v.

Insurance Agents’ International Union, 361 U.S. 477,

has even more direct application to the §8(a) (5) ques-

tion. See also, Labor Board v. Dalton Brick & Tile

Corp., 301 F.2d 886, 894-895 (C.A. 5th Cir. 1962). 380

U.S. at 306 n. 5.

The meaning of this reference is clear from reading the

passage from Insurance Agents’ referred to:

‘[W]hen the Board moves in this area .. . it is func-

tioning as an arbiter of the sort of economic weapons

the parties can use in seeking to gain acceptance of

their bargaining demands. It has sought to introduce

some standard of properly ‘balanced’ bargaining power,

or some new distinction of justifiable and unjustifiable,

proper and ‘abusive’ economic weapons into .. . the

Act. . . . We have expressed our belief that this

amounts to the Board’s entrance into the substantive

aspects of the bargaining process to an extent Con-

gress has not countenanced.’ Labor Board v. Insur-

ance Agents’ International Union, 361 U.S. 477, 497-

498. 380 U.S. at 317-318.

The Court’s reference to NLRB v. Dalton Brick & Tile

Corp. is similarly instructive. In- that case the Second

Circuit was faced with an explicit finding that a lockout

during negotiations amounted to a refusal to bargain in

violation of Section 8(a) (5). The court stated:

Our approach is to match the employer’s conduct under

review against specific provisions of the Act to see

whether, within the accepted limits of judicial review

[Footnote], there is substantial evidence of actions

« Wwhi@h constitute violations of standards prescribed by

Congress. We stress the latter because several recent

decisions emphasize the necessity that a statutory basis,

either expressed or reasonably implied, be found when

the Board undertakes to fashion policies which, in its

judgment, are desirable in balancing the conflicting

interests between management and labor. ...

When this is done in this record, we find no basis for

the Board’s conclusion that the lockout as a weapon to

aid the Employer in the bargaining constituted a

§8(a) (5) failure to bargain in good faith.... 301

F.2d at 894-895.

The Court of Appeals continued:

So long as the partie¢ seriously and earnestly go for-

ward in a genuine desire to work out a final settlement

of their controversies, they have complied with that

mandate of the Act. The Insurance Agents’ case makes

clear that it is not for the Board to balance the scales,

equalize or neutralize pressures under the guise of a

lack of good faith attributed to the party resorting to

forces of a kind the Board thinks undesirable. Indeed,

we consider that case far-reaching by its concentrated

focus on the immediate process of bargaining. The

decision—if it does not impliedly do so completely—

comes close to holding what the concurring opinion

makes explicit, that it is inaccurate to regard any given

action as a per se refusal to bargain. More than that,

hm .

the decision frankly recognizes that the objective—the

collective bargaining agreement—is by the very nature

of things an annealing process hammered out under

the most severe and competing forces and counteract-

ing pressures. Unless Congress has proscribed a given

pressure, or unless its exertion or the manner of its

exercise collides with some other specific policy of the

Act, its use may not be transmuted to make what is in

fact good faith at the bargaining table into something

else, 301 F.2d at 895. (Emphasis added)

See also H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).

Here, the Board has taken its impasse principle, de-

veloped to determine when parties may break off good

faith negotiations’ and to regulate when a party may no

longer seek negotiations on non-mandatory bargaining

subjects® and re-generated impasse as a device to regulate

the timing of all legitimate employer actions.

The Board has never found that petitioner did not act

in good faith. It has never found that petitioner was mo-

tivated unlawfully or was violating Sections 8(a)(1) or

(3) of the Act. The Board here expressly refused to find

that petitioner violated Section 8(d). (App. A at AQ)

By simply declaring that petitioner’s action was mistimed

because no impasse had been reached and was thereby a

refusal to bargain in good faith, the Board has done ex-

actly what this Court repeatedly warned it against in

American Ship Building, supra, and Insurance Agents’,

supra. Matching the “employer’s conduct against specific

provisions of the Act” it is obvious that the Board’s action

has no basis. NLRB v. Dalton Brick & Tile Corp., supra.

5. See Philip Carey Mfg. Co., 140 NLRB 1103 (1963), modi-

fied, 331 F.2d 200 (6th Cir. 1964).

6. See NLRB v, Wooster Division of Borg-Warner Corp., 356

U.S. 342 (1958).

Applying the Board’s nebulous impasse standard to

the facts of the present case demonstrates its unworkability.

In the Board’s scenario, the petitioner’s president ap-

parently was supposed to call on Friday, February 11 to

see if a deal could not be worked out with the Teamsters’

agent for the immediate replacement of the petitioner's

drivers on the following Monday. This was the same agent

who had told him on Tuesday that he would do everything

in his power to stop petitioner’s going to a carrier. For

more than two weeks the union had adamantly refused to

consider the replacement of those drivers over four years.

They had not contacted him. They had voted to strike.

Now they would reasonably request discussion on this

issue because the Company called again? This scenario

is between tragedy and comedy. No layman, other than

a comic writer, could suggest such an approach. No

serious business person would consider it—certainly not

in the circumstances of a contract expiration and threatened

strike.

The Court of Appeals, while struggling with the very

real question of what petitioner was to do when its contract

expired, its no-strike clause protection evaporated and its

perishable meat products had to be shipped on the next

Monday, added its own practical advice for petitioner. It

simply announced petitioner “certainly could have taken

steps to have a common carrier act as a replacement if the

union drivers went on strike at the expiration of the con-

tract.” (App. A at A7) The Court of Appeals ap-

parently believed that refrigerated trucks—with drivers—

can be called up to deliver thousands of pounds of meat

over three states in much the same way you call a taxi

cab. Archibald Cox wrote with great perception over

twenty years ago:

The administrative and judicial processes are ill-

suited to drawing a line between proper subjects for

collective bargaining and management functions, The

NLRB is staffed chiefly by lawyers who lack practical

experience in industrial management and collective

bargaining, and judges are not familiar with the prob-

lems. Cox, Labor Decisions of the Supreme Court at

the October Term, 1957, 44 Va. L. Rev. 1057, 1083

(1958).

5. Engraftment of the Board’s impasse rules on the

implementation process is fraught with danger for the

national economy. As the Chamber of Commerce for the

United States noted in its amicus brief in support of the

petition in First National Maintenance Corp., supra:

A vital national economy requires a maximally free

flow and effective use of its economic resources... .

The need is especially acute in our time, when we

are experiencing sharp declines either in the rate of

increased productivity or, more alarmingly, in absolute

productivity figures. Brief Amicus Curiae in Sup-

port of Petition, p. 4.

This Court can do a great service by accepting the op-

portunity presented here to address this matter.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

WILLIAM K. ENGEMAN

TAFT, STETTINIUS & HOLLISTER

600 Dixie Terminal Building

Cincinnati, Ohio 45202

(513) 381-2838

Counsel for Petitioner

Of Counsel:

PAu. C, SUNDERLAND

600 Dixie Terminal Building

Cincinnati, Ohio 45202

APPENDIX

APPENDIX A

No. 78-1483

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BLUE GRASS PROVISION CoO., INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for Review and Cross-Petition for

Enforcement of an Oruer of the National Labor

Relations Board.

Decided and Filed December 9, 1980.

Before: Livery and Kertn, Circuit Judges, and

LAMBROS, District Judge.*

LaMsROSs, District Judge. Blue Grass Provision Co.,

Inc. asks us to set aside a decision and order of the National

Labor Relations Board that found Blue Grass had refused

to bargain collectively in good faith with Truckdrivers,

Chauffeurs and Helpers Local No. 100 regarding the com-

pany’s decision to subcontract the delivery of its meat prod-

ucts. The Board’s decision was accompanied by an order

directing Blue Grass to reinstate its delivery operations

*“Honorable Thomas D. Lambros, District Judge, United

States District Court, for the Northern District of Ohio, sitting by

designation.

and the delivery employees with back pay. The Board

on cross-petition seeks enforcement of this order.

This case was commenced upon the filing of a complaint

by the Board on August 10, 1977 alleging that “[s]Jince on

or about January 25, 1977, [Blue Grass Provision Co., Inc.]

has failed and refused, and continues to refuse, to bargain

collectively in good faith with the Union... by: (a) fail-

ing to negotiate with the Union with respect to its decision

to permanently and immediately subcontract out all unit

work performed by [the employees of Local 100] ... and

formed by [those] employees . . . and discharging all em-

ployees of said unit” in violation of sections 8(a)(1) and

(5) of the National Labor Relations Act, 29 U.S.C. § 151

et seq. The case was heard by an Administrative Law

Judge (ALJ) who found that the company had terminated

the contract in violation of § 8(a)(1) and (5), and ordered

the remedies previously mentioned. The Board affirmed.

Petitioner now asserts that these findings are against the

weight of the evidence and contrary to the interpretation

of the National Labor Relations Act given by current de-

cisions in this and in other Circuits.

At the time the dispute arose Blue Grass, a small

family-owned company, had employed members of the

union for about 20 years to make deliveries and was operat-

ing under a contract which was to expire on January 31,

1977. Concerned with rising costs, in early January com-

pany president William Rice began to explore the feasibility

of subcontracting the delivery operations. At about the

same time he contacted Local 100 Business Agent Fred

Batsche to ask when they could meet to discuss a new con-

tract. Batsche asked that they delay negotiations until

the major packers had signed their contracts at which

time union demands would be in clearer focus.

The two men finally met on either January 24 or 25, at

which time the parties agreed to an eleven day extension

of the contract. Batsche presented Rice with the pro-

posals prepared by the union for presentation to all the

area meat packers which contained, inter alia, a clause

providing that no work presently performed by union

members would be subcontracted. Batsche testified before

the ALJ that Rice complained abut the overall cost of the

package but gave no indication that the subcontracting

clause was particularly troublesome. Rice claimed, how-

ever, that he told Batsche that Blue Grass “wanted to get

out of the trucking business.” This meeting was ad-

mittedly inconclusive, with Rice wanting time to consider

the proposals. The two met again on January 28, and Rice

mentioned that he desired to negotiate a contract that

would protect his employees so that they could retire

through attrition and that he would refuse to negotiate if

such a clause was not included. According to Batsche, this

was the first indication the union had that Blue Grass was

considering a change in its delivery operations.

On February 7, Rice called Batsche on the advice of

counsel in order to make sure that the union understood

the company wanted to terminate their trucking operations.

According to Batsche, however, the discussion centered

again on gradually phasing out the unit with Batsche

strongly opposed. The conversation ended with Rice af-

firming that he was unwilling to negotiate further. Fol-

lowing this interchange, Rice realized that he had spoken

too hastily, and sent a letter to Batsche the following day

indicating that Blue Grass was still willing to pursue nego-

tiations. This letter was not seen by Batsche until Feb-

ruary 12.

With no extension sought by either side and the con-

tract set to expire on February 11, Rice made plans to have

a common carrier make his meat deliveries starting on

Monday, February 14, contingent on the failure to reach

an agreement with the union. Having heard nothing fur-

ther from the union, on February 11 Rice informed his

five drivers that they were laid off and that their work

would be performed henceforth by a subcontractor. The

laid-off drivers started picketing on February 15.

At the administrative hearing, Blue Grass argued that

an impasse had been reached and that the union had waived

its bargaining rights by refusing to consider the company’s

desire to subcontract. The union asserted that Blue Grass

had breached its obligation not to make unilateral changes

in employment conditions without first giving notice and

bargaining with the statutory bargaining representative of

the employers as required by N.L.R.B. v. Katz, 369 U.S. 736

(1962). Faced with a conflicting narrative, the ALJ gave

more credence to the testimony offered by Mr. Batsche.

Our function in reviewing his ruling as adopted by

the NLRB is to examine the record in order to ascertain

that the Board’s findings of fact are supported by sub-

stantial evidence on the record as a whole. Universal

Camera Corp. v. NLRB, 340 U.S. 474 (1951); NLRB v.

Retail Store Employees Union, Local 876, 570 F.2d 586

(6th Cir. 1978). Having done so, we affirm the Board

and dismiss petitioner’s claim.

Blue Grass does not dispute that an employer must

bargain about subcontracting which involves the replace-

ment of employees in the existing unit with those of an

independent contractor to do the same work under similar

conditions of employment, see Fiberboard Paper Products

Corp. v. NLRB, 379 U.S. 203 (1964), but asserts that it

had properly notified the union of its intentions and given

it a “meaningful chance to offer counter-proposals and

counter-arguments,” NLRB v. J. P. Stevens & Co., Inc.,

Gulistan Div., 538 F.2d 1152, 1162 (5th Cir. 1976). In

Blue Grass’ view, the proper disposition would have been

for the ALJ to dismiss because of the Union’s failure to

negotiate, citing for authority The Emporium, 221 NLRB

1211 (1975), and Laclede Gas Co., 171 NLRB 1392 (1968).

Those cases disclose, however, that the employer had un-

equivocally informed the union of an intention to sub-

contract work on a definite date and that the union failed

to take advantage of that opportunity to negotiate. Our

examination of the record before us in the instant case

shows no such expression on the part of the employer.

Even giving Rice’s testimony full credence, we cannot say

that when he left the January 24 meeting, Batsche was

on notice that Blue Grass contemplated laying off all of

the drivers at the expiration of their contract. It may

well be that at the time Rice did not in fact plan to take

such action. Unfortunately, subsequent discussions be-

tween the parties reflect that each wrongly assumed the

other knew what issue was being discussed. Ideally, both

gentlemen would have used greater clarity, precision and

candor in their communications, but this was not the case.

and the ALJ had substantial evidence before him to sup-

port a finding that Blue Grass had breached its duty to

bargain by instituting a unilateral change before an im-

passe had been reached on a subject of mandatory bar-

gaining.

Blue Grass replies that an impasse had been reached

and that its actions in effect amounted to a legal lockout.

We are not persuaded on either count. While that state

of affairs that constitutes an impasse is not subject to

precise definition, at least it encompasses the notion that

both sides are aware of precisely what is at issue and

that they have made more than a perfunctory attempt to

reach a resolution. See, e.g. Taft Broadcasting Co., 163

NLRB 475 (1967), enf’d sub nom AFTRA v. NLRB, 395

F.2d 622 (D.C. Cir. 1968). In light of a record that leaves

considerable doubt whether the Union ever understood

Blue Grass meant to terminate the bargaining unit upon

expiration of the contract and that discloses that any

meetings between the parties were at best preliminary

sparring matches, we cannot say that there existed a “state

of facts in which the parties, despite the best of faith,

[were] simply deadlocked.” NLRB v. Tex-Tan, 318 F.2d

472, 482 (5th Cir. 1963). This is particularly true in light

of Blue Grass’ own letter of February 8 evidencing its

willingness to talk further with the union.

Blue Grass’ assertion that the action it took would be

legal had it been denominated a lockout does not alter

our judgment. The Company cites Lane v. NLRB, 418

F.2d 1208 (D.C. Cir. 1969), aff’ing sub nom Darling & Co.,

171 NLRB 801 (1968), for the proposition that an employer

faced with a hard negotiating position but no impasse

and not an imminent strike can lockout in support of its

bargaining demands. In that case Judge Skelly Wright

was careful to note that

|fJirst, employer conduct which is “inherently destruc-

tive” of employee rights is an unfair labor practice

whether or not such conduct [is] based upon impor-

tant business considerations. Second, employer con-

duct which has only a “comparatively slight” impact

on the rights of employees will also be held an unfair

labor practice unless the employer comes forward with

evidence of “legitimate and substantial” reasons to

justify his conduct.

418 F.2d at 1211. Judge Wright, however, was faced with

a situation in which there had been ten negotiating ses-

sions with the union before the lockout, the disagreement

was over an issue that had been the subject of a long

—————————————————————————— es

strike some years earlier, the company had already made

numerous concessions, and the union delayed striking until

the company’s peak season when 70 per cent of its annual

production was to be shipped in a two-month period.

Assuming arguendo that Blue Grass’ action was not

“inherently destructive” of employee rights, it still cannot

demonstrate that its business interests were so legitimate

and substantial as to justify the impact that the lockout

had on its employees’ rights. Contrary to its assertions,

Blue Grass had not made repeated attempts to get the

union to recognize its plight. It was not faced with a:

situation that would have a devastating impact on its busi-

ness and it certainly could have taken steps to have a

common carrier act as a replacement if the union drivers

went on strike at the expiration of the contract.

Under the circumstances, we think the Board’s finding

that there was a violation of Section 8(a)(1) and (5) is

amply supported by the record. We are mindful that

Blue Grass.is a small company with a history of relatively

peaceful labor relations and that the effect of the reinstate-

ment order may cause it hardship. Nonetheless, the Board

has a broad discretion in the remedies it selects to protect

employees who are the victims of an unfair labor practice,

Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168

(1973), and so long as it has responsibility exercised its

judgment, courts will not interfere with that remedy,

which is peculiarly a matter for administrative compe-

tence. Office and Professional Emp. Intern. Union Local

425 AFL-CIO v. NLRB, 419 F.2d 314 (D.C. Cir. 1969).

Blue Grass’ petition is dismissed, the decision of the

Boar! is affirmed, and its cross-petition for enforcement

of its order is hereby granted.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 9-CA-11074

BLUE GRASS PROVISION CoO., INC.

and

TRUCK DRIVERS, CHAUFFEURS AND HELPERS

LOCAL UNION NO. 100, AFFILIATED WITH IN-

TERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELP-

ERS OF AMERICA

DECISION AND ORDER

; On April 14, 1978, Administrative Law Judge Phil W.

Saunders issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

brief, and the General Counsel filed a brief in answer to

Respondent’s exceptions.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this pro-

ceeding to a three-member panel. .

The Board has considered the record and the attached

Decision’ in light of the exceptions and briefs and has de-

cided to affirm the rulings,” finding,’ and conclusions‘ of

1. We note that at two points in his discussion the Admin-

istrative Law Judge inadvertently refers to Sec. 8(d)(3) as Sec.

8(a) (3).

2. Respondent requests that the Board decide the instant

case de novo or, in the alternative remand the proceedings to the

Administrative Law Judge, on the ground that the latter failed

to make independent findings of fact and conclusions of law con-

trary to the Board’s Rules & Regulations, Series 8, as amended,

Sec. 102.45. In support thereof, Respondent asserts that the

Administrative Law Judge’s Decision is, in large part, a verbatim

copy of the General Counsel’s brief to the Board.

Contrary to Respondent’s contention, the Administrative Law

Judge’s Decision provides an independent recitation of facts,

analysis, and conclusions of law, which are fully supported by

the record. Therefore, we conclude that the Administrative Law

Judge complied in full with applicable Board Rules in the instant

case. Accordingly, we hereby deny Respondent’s request for a

hearing de novo and its alternative request for remand,

3. Respondent has excepted to certain credibility findings

made by the Administrative Law Judge. It is the Board’s estab-

lished policy not to overrule an Administrative Law Judge’s reso-

lutions with respect to credibility unless the clear preponderance

of all of the relevant evidence convinces us that the resolutions

are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544

(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully

examined the record and find no basis for reversing his findings.

4. We agree with the Administrative Law Judge that Re-

spondent violated Sec, 8(a)(5) and (1) of the Act by unilaterally

subcontracting all of its truckdriving work, thereby eliminating

the bargaining unit, without giving notice to the Union of such

a change or affording it an opportunity for bargaining over the

effect of that change. Accordingly, Members Jenkins and Trues-

dale find it unnecessary to reach the question whether Respon-

dent further violated Sec. 8(a)(5) and (1) by failing to comply

with Sec. 8(d)(3) and (4) of the Act inasmuch as the scope of

the remedy is essentially identical; nor is Respondent’s obligation

to bargain (otherwise imposed by Sec. 8(a)(5)) with respect to

changes in terms and conditions of employment affected. There-

fore, the Administrative Law Judge’s recommended Order is

modified accordingly.

Member Murphy finds, in agreement with the Administrative

Law Judge, that Respondent further violated Sec. 8(a)(5) by

failing to comply with Sec. 8(d) (3) and (4) of the Act. However,

she disagrees with the view expressed by her colleagues that

neither the remedy provided nor the bargaining obligation which

(Continued on following page)

A10

the Administrative Law Judge and to adopt his recom-

mended Order as modified herein.°

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Admin-

istrative Law Judge as modified below and hereby orders

that the Respondent, Blue Grass Provision Co., Inc., Cov-

ington, Kentucky, its officers, agents, successors and as-

signs, shall take the action set forth in the said recom-

mended Order, as so modified:

1. Delete paragraphs l(a) and (b) and substitute the

following:

“(a) Subcontracting out its unit delivery operations

without prior notice io or bargaining with the Union.

“(b) In any like or related manner interfering with,

restraining, or coercing employees in the rights guar-

anteed them by Section 7 of the Act.”

Footnote continued—

remains is significantly affected by a finding that Respondent un-

lawfully failed to comply with Sec. 8(d)(3) and (4). Thus, by

deleting that portion of the Administrative Law Judge’s recom-

mended Order designed to remedy the failure to comply with

Sec. 8(d) (by requiring that Respondent continue in full force

and effect the terms and conditions of the existing contract for

a period of 30 days following the giving of notice of a dispute to

the appropriate agency for the Commonwealth of Kentucky), the

Union is no longer accorded a minimum time frame during which

Respondent is precluded from instituting any unilateral changes

in terms and conditions of employment regardless of whether

it has bargained to impasse.

5. In his recommended Order and notice the Administrative

Law Judge failed to include a provision requiring Respondent

to cease and desist from any like or related manner interfering

with, restraining, or coercing the employees in the exercise of

the rights guaranteed them in Sec. 7 of the Act. Accordingly,

we shall modify the recommended order and notice herein to

include such a provision.

All

2. Delete paragraph 2(c) and reletter the following

paragraphs accordingly.

3. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington, D.C. September 29, 1978

Howard Jenkins, Jr., Member

Betty Southard Murphy, Member

John C. Truesdale, Member

(Seal ) National Labor Relations Board

Al2

APPENDIX

NOTICE TO EMPLOYERS

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT subcontract out our unit delivery

operations without prior notice to or bargaining with

the Union.

WE WILL NOT in any like or related manner in-

terfere with, restrain, or coerce our employees in the

rights guaranteed them by Section 7 of the Act.

WE WILL restore our unit delivery operations.

WE WILL reinstate and make whole the unit em-

ployees for any loss of pay suffered by reason of their

lay off or discharge, with interest.

Blue Grass Provision Co. Inc.

(Employer)

(Representative ) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, Federal Office Building,

Room 3003, 500 Main Street, Cincinnati, Ohio 45202, Tele-

phone 513—684-3634.

Al3

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

DIVISION OF JUDGES

Case 9-CA-11074

In the Matter of

BLUE GRASS PROVISION CoO., INC.

and

TRUCK DRIVERS, CHAUFFEURS AND HELP-

ERS LOCAL UNION NO. 100, AFFILIATED

WITH INTERNATIONAL BROTHERHOOD OF

TEAMSTERS CHAUFFEURS, WAREHOUSE-

MEN AND HELPERS OF AMERICA

Donald L. Crain, Esq., for the

General Counsel.

Bruce E. Pence, Esq., for ihe

Charging Party.

William K. Engeman, Esq. and

John E. Campion, Esq., for

the Respondent.

DECISION

Statement of the Case

PHIL W. SAUNDERS, Administrative Judge: Based

on a charge filed on February 17, 1977, by the Charging

Party, herein the Union or Local 100, a complaint was

issued on August 10, 1977, against Blue Grass Provision

Co., Inc., herein the Respondent or Company, alleging vio-

lations of Sections 8(a) (1), 8(a)(5) and 8(d)(4) of the

National Labor Relations Act, as amended. The Respon-

Al4

dent filed an answer to the complaint denying it had en-

gaged in the alleged matter. The Respondent and the

General Counsel filed briefs.

Upon the entire record in the case, and from my obser-

vations of the witnesses and their demeanor,’ I make the

following:

Findings of Fact

I. The Business of the Company

The Respondent is a Kentucky corporation engaged

in processing and wholesale distribution of meat products

at its Covington, Kentucky facility. During the past 12

months the Respondent sold goods and materials valued

in excess of $50,000, and caused them to be shipped directly

from its Covington, Kentucky, plant to points outside the

State of Kentucky.

At all times material herein, Respondent is, and has

been, an employer as defined in Section 2(2) of the Act,

engaged in commerce and in operations affecting commerce

as defined in Section 2(6) and (7) of the Act.?

1, The facts found herein are based on the record as a whole

upon my observations of the witnesses, The credibility resolu-

tions herein have been derived from a review of the entire testi-

monial record and exhibits with due regard for the logic and

probability, the demeanor of the witnesses, and the teaching of

N.L.R.B, v. Walton Manufacturing Company, 369 U.S. 404. As

to those witnesses testifying in contradiction of the findings

herein, their testimony has been discredited, either as having

been in conflict with the testimony of credible witnesses or be-

cause it was in and of itself incredible and unworthy of belief.

All testimony has been reviewed and weighed in the light of the

entire record.

2. The record in this case is corrected in accordance with

Respondent’s Motion to Correct Transcript of Record dated Jan-

uary 26, 1978.

Al5

II. The Labor Organization Involved

The Union is a labor organization within the meaning

of Section 2(5) of the Act.

III. The Unfair Labor Practices

The main issues in this case are:

1. Whether the Respondent violated Section 8 (a)

(9) and (1) of the Act by unilaterally subcontracting

out all delivery work.

2. Whether the Respondent violated Sections 8

(a)(5) and 8(d)(3) and (4) of the Act by failing

to continue in full force and effect all terms and con-

ditions of the existing collective-bargaining agreement

when notice was not given to the appropriate state

agency, pursuant to Section 8(d) (3) of the Act.

For many years the Respondent has been a party to

successive collective-bargaining agreements with the Union

covering a small unit consisting of the Respondent’s truck-

driver employees. The most recent collective-bargaining

agreement between the Respondent and the Union was

effective from February 1, 1974 through January 31, 1977.

Also for the past many years the Respondent's production

and maintenance employees have been represented in a

3. The appropriate unit for the purpose of collective bar-

gaining here involved, contains the following employees:

All truckdrivers, truckdrivers’ helpers, mechanics, mechanics’

helpers, checkers, forklift truck cperators, dockmen, car

washers, tire men, gas men and greasers employed by the

Employer, directly, indirectly, or in any wholly owned or con-

trolled subsidiary company of the Employer, who are reg-

ularly engaged in driving trucks, assisting in the operation

of a truck, loading or unloading trucks, checking or routing

merchandise or performing such services on similar other

vehicles, excluding office clerical employees and all guards,

professional employees and supervisors as defined in the Act.

Al6

separate unit by Amalgamated Meat Cutters and Butcher

Workmen of North America, Local Union No. 7.

This record shows that the five truckdriving employees

within the unit here involved deliver the Respondent’s

meat products to various customers in Northern Kentucky

and in the Greater Cincinnati area. Four drivers have

completed from 20 to 28 years. Ed Scudder, the remaining

driver, was a vacation relief driver and has functioned as

such since 1974. Scudder has approximately 10 years of

seniority with the Respondent, but was not due to retire

for quite some time. Further background evidence reveals

that in 1975, the Respondent, without notice to the Union,

unilaterally began to use a driver provided by an indepen-

dent contractor headed by Don Saylor to fill temporary

vacancies resulting from its drivers’ illnesses and vacations.

In fact, Ed Scudder, then on layoff status, filed a grievance

over the subcontracting, and the grievance was eventually

submitted to binding arbitration and in late 1975, the arbi-

trator ruled that the Respondent had violated certain sec-

tions of the then current collective-bargaining agreement

and awarded Scudder backpay and reinstatement to his

relief driver position.

On November 12, 1976, the Union notified the Com-

pany in writing of its desire to terminate the collective-

bargaining agreement as of January 21, 1977, and requested

a meeting to negotiate a new agreernent. On that same

date the Union also sent a Section 8(d) (3) notice to the

Federal Mediation and Conciliation Service, one to the

Cincinnati Regional Office, and one to the Ohio Industrial

Commission. While the Union has its offices in Cincinnati,

the situs of the dispute in question is at the Respondent’s

Covington, Kentucky facility. Therefore, argues, the Gen-

eral Counsel, the 8(d)(3) notice should have been sent

to the Kentucky Department of Labor, the appropriate

Al7

agency for the State of Kentucky. By the testimony of

Mediator Larry Roberts, it was established that such notice

was not, in fact, served upon the Kentucky Department

of Labor.

Although the bargaining agreement was about to ex-

pire, as aforestated, neither of the parties had been in

contact with one-another. However, on or about Jan-

uary 14, 1977, Respondent’s President William Rice, and

the Union’s Business Agent, Fred Batsche, who was to

negotiate for the Union, talked to one-another over the

telephone, and in this conversation Batsche noted that the

Respondent has always signed an industry-wide contract

with little, if any, changes, and suggested that the contract

between them be extended for 30 days so that the parties

could better gauge their negotiations based on what the

major meat packing firms agreed to. In addition, Business

Agent Batsche also requested a 30-day extension of the

expiring contract that would provide for retroactivity of

the new contract. However, Rice agreed to only an 11

day extension agreement—to February 11, 1977. There

was no discussion concerning the subject of subcontracting

during this telephone conversation, but the parties did

agree to meet later on. As pointed out, Rice did not men-

tion to Batsche that he had already contacted an outside

carrier for the purpose of discussing the sukcontracting

of Respondent’s delivery service. This record shows that

on or about January 12, 1977, Rice had contacted W. C.

Rottenberger of Total Transportation Services, Inc., be-

cause Rice was under the impression that Total Transpor-

tation was providing delivery service to Kahn’s, a large

Cincinnati meat packing plant. A few days later, Rice

received a letter from Total Transportation Services offer-

ing to do a feasibility study, but Rice then rejected this

idea because he thought it too expensive.

Als

On or about January 25, 1977, Batsche and Rice met

in the Respondent’s lunchroom in their first negotiating

session and the parties then signed the extension agree-

ment discussed above, and Batsche gave a set of the Union’s

written proposals to Rice. Rice reviewed the proposals

and asked some questions, but generally complained about

the overall cost of the package. When Rice finished look-

ing over the proposals, he then asked for additional time

to study them. Batsche stated that there was no discus-

sion concerning subcontracting at this negotiating session

nor was there any mention by Rice that he had contacted

or was negotiating with any outside carrier to perform

Respondent’s delivery service.*

Rice and Batsche met again on January 28, 1977.

Rice informed the Union that he did not have a counter

offer, but then told Batsche that he wanted to negotiate

a contract wherein he could protect his drivers so ‘that

they could retire through attrition,’ as he was “contem-

plating getting out of the trucking business.” Batsche

replied that “at this point” he could not do this, and

then inquired as to the status of Ed Scudder. Rice told

Batsche that Scudder would not be recalled from layoff.

Batsche stated that at this meeting he made no offer

4. Rice testified that at this meeting he mentioned to Batsche

that the Company “wanted to get out of the trucking business,”

and that the Company hoped, because of the seniority of its truck-

drivers, to find a way “to phase them out and let ¢!iem work” until

they reached the age of 58 when they could retire. Rice further

testified that Batsche then replied that he could not agree with

such a proposal because he could not negotiate a contract that

would do away with the bargaining unit through attrition, and

told Rice that he needed ‘“‘a three-year contract or nothing,” and

pointed out that Kahn’s a 1000-employee-plus meat packing

house, had gone with the 3-year contract with a $1.65 wage

increase and a cost-of-living clause, but that if Rice did not like

that proposal, Juengling, a small beef slaughtering plant, had

accepted a $2 per hour increase with no cost-of-living clause.

Rice also stated that on this occasion he further offered to main-

tain the Respondent’s present rate of pay and to pay the in-

creases in the fringe benefits as they became due.

Alg

for a l-year contract, because a contract with such a

limited duration would require the abandonment of the

pension article since the rules governing the Teamsters

pension fund required a 36-month term commitment for

coverage. Batsche stated that there was no discussion

whatsoever concerning the Respondent immediately sub-

contracting out all the unit work, and that the meeting

ended by Rice telling Batsche that if the Union could

not negotiate a contract that would eliminate the unit

through attrition, then the Company could not reach a

contract with the Union. Batsche then inquired of Rice

if he was refusing to further negotiate, and Rice replied

that he was. Batsche asked Rice to reconsider his posi-

tion, but left with the understanding that Rice would

not do so.°

On January 31, 1977, the Union held a meeting of

its unit drivers, and Batsche brought them up-to-date on

the contract negotiations, and also explained to them their

pension rights and the possibility of losing the unit through

attrition. At this meeting the drivers voted to strike after

the expiration of the agreement extending the contract.

On February 7, 1977, Rice called the Union because

his attorney in Covington, Kentucky, had advised him

that he “had damn well better be sure that the Union

understood that [the Company] wanted to get out of the

trucking business and were going to a common carrier.”

Rice testified that this is the message “he tried” to convey

on the morning of February 7. Batsche stated that the

only subcontracting discussed on this occasion concerned

the continuation of the deliveries by drivers until they

5. Rice testified that on January 28, 1977, Batsche came

over to his place of business, and merely inquired if the Company

had changed their minds—“the way that we were thinking”—and

after he replied in the negative, Batsche then stated, “I don’t

think there is any reason for us to discuss this any further or

to talk anymore.”

A20

retired, then as they retired, the Company would sub-

contract. At the conclusion of their phone conversation,

Batsche inquired of Rice if he was refusing to negotiate,

and Rice answered in the affirmative. However, on the

next day, February 8, 1977, Respondent sent a letter to

the Union evidencing a clear interest in resuming nego-

tiations. This letter was delivered to the Union’s office

on February 10, but apparently Batsche did not actually

see the letter until sometime later.

At the end of the workday on Friday, February 11,

1977, Rice informed the unit drivers that they were laid

off and need not report to work on Monday, and that

thereafter the Respondent was going to employ the ser-

vices of a common carrier to perform their work. On

February 14, 1977, an outside firm made deliveries for

the Company, and on February 15, 1977, the unit drivers

involved herein commenced picketing the Respondent.®

It should be noted that sometime subsequent to Feb-

ruary 11, 1977, the Respondent admittedly purchased the

Ryder equipment it had been leasing prior thereto.

The Respondent argues that they fulfilled their duty

to bargain by notifying the Union that it was considering

subcontracting, and which notification the Union ignored

by refusing to bargain about the decision or its effects,

and that once notified, the Union must then request bar-

gaining on the issue for there to be any duty on the

employer to actually negotiate. Counsel for the Respon-

dent points out that when Rice notified Batsche that the

Company was thinking about subcontracting, no definite

6. After February 14, the Company approached the Federal

Mediation and Conciliation Service to see if they could assist

in the controversy. When the FMCS contacted Batsche and re-

quested that he meet with the Company, Batsche referred the

Mediation Service to the Union’s lawyer. Attorney Pence then

told the Mediation Service that the Union would not meet unless

the Company “put the unit back as it was.”

A21

arrangements had been made at this time with a carrier

other than to inquire in the most general way whether

a subcontractor might be available to assume the Com-

pany’s delivery operation, and that the Company had not

even inquired into the details of subcontracting. More-

over, that even when final detailed arrangements were

made with the outside subcontractor on February 7, 1977,

the Company refused to irrevocably commit itself to that

course of action, and made it clear to the subcontractor

that the whole arrangement could be “washed out” if

the Company could reach some agreement with the Union

before the subcontractor’s service were required. The

Respondent further argues that the Company acted law-

fully by subcontracting after bargaining to impasse as-

suming, arguendo, that the Union’s refusal to discuss the

subcontracting and insistence on discussing only its own

proposals, can be deemed bargaining on the issue of sub-

contracting.

The General Counsel maintains that Respondent’s

violation of Section 8(a) (9) is threefold. First, it com-

mitted an unfair labor practice by not bargaining over

the decision to immediately and totally subcontract its

delivery operation. Second, the failure to bargain over

the effects of the subcontracting constitutes a Section

8(a)(5) violation. Third, the Respondent violated Sec-

tion 8(a)(5) and (d) (4) of the Act by failing to continue

“in full force and effect . . . all terms and conditions of

the existing contract” without full compliance with the

notice and waiting requirements of Section 8(a) (3) and

(4) of the Act.

Final Conclusions

It is well established by both the Board and the

Courts, that an employer has an obligation to bargain

with its employees’ bargaining representative concerning

A22

both the decision to subcontract out unit work and the

effects of such action on its employees. It has also been

duly established that when an employer notifies a union

of proposed changes in terms and conditions of employ-

ment, it is then incumbent upon the Union to act with

“due diligence” in requesting bargaining. However, in

the instant case, the evidence shows that the Company

gave notice to the Union only of its desire to subcontract

out unit work over a period of time as the unit employees

retired under the terms of the existing collective-bar-

gaining contract, and there is no credited testimony that

the Company ever actually mentioned to the Union that

it would immediately and permanently subcontract out

all its unit delivery work and discharge its drivers upon

termination of the extension agreement on February 11,

1977. At the second negotiating meeting on January 28,

1977, Rice informed Batsche that he wanted to protect

his drivers so they could retire through “attrition” as

he was “contemplating” getting out of the trucking busi-

ness. Again, on February 7, 1977, the only subcontracting

discussed concerned the retirement of the drivers and

that the Company would then subcontract its deliveries.

Moreover, there was never any mention by Rice that

the unit drivers would be discharged, and, of course, there

is a great deal of difference between a gradual termina-

tion on the basis of retirement, as compared to their

immediate discharge.

It appears to me that if the Company had actually

imparted to the Union its desired change for the imme-

diate subcontracting of its delivery services upon expira-

tion of the current contract, then some statements detailing

this position would have been specifically mentioned, and

possibly the Union would have also been informed of

the preliminary contacts by the Company with outside

truckers. Moreover, it would seem to me an almost im-

A23

possible imposition to require a union to act with “due

diligence” in bargaining over a requested change, when,

in reality, the proposed change and its immediacy has

never been actually communicated to the other ‘party

with any definite particularities.

Thus, by unilaterally subcontracting out all of its

truckdriving work effective February 14, 1977, thereby

eliminating the entire bargaining unit, without giving

notice to the Union of such a change, or affording it an

opportunity for bargaining over the effects of such changes,

the Respondent violated Section 8(a)(1) and (5) of the

Act. I am also in agreement that the above conclusion

becomes even more inescapable since the parties had not

even reached any impasse on the issue of eventual or

gradual subcontracting.

In Mechanical Contractors Association of Newburgh,

202 NLRB No. 1, the Board, inter alia, stated: The term

impasse implies that collective bargaining has failed to

produce agreement. It cannot be said that a failure to

agree at what we view as the primary stage of a bi-level

bargaining procedure amounts to impasse. Until the col-

lective-bargaining process has been exhausted, no impasse

can occur,

By letter dated February 8, 1977, the Respondent

wrote the Union that it wanted to resume negotiations

or discussions. Clearly, this is inconsistent with the notion

that matters were deadlocked. But, as also pointed out,

even if there were an impasse on this matter, arguendo,

it would not change the result herein. Thus, any bar-

gaining over the proposed gradual subcontracting of unit

work over a period of time, cannot be deemed to have

satisfied the Respondent’s obligation to bargain about the

very different proposition of the immediate subcontracting

of all unit work.

A24

In the final analysis, the action of the Respondent

resulted in the discharge of the unit drivers who all had

many years of service with the Company. The evidence

in this record shows that the Union was unaware of

Respondent’s decision to immediately subcontract and ter-

minate its delivery operations, and, therefore, was in no

position to request negotiations.’

It is alleged in the complaint that on or about No-

vember 12, 1976, the Union gave notice to the Respondent

to terminate the collective-bargaining agreement without

giving notice to the Commonwealth of Kentucky, Depart-

ment of Labor, Division of Labor Standards, an agency

established to mediate and conciliate disputes within the

Commonwealth of Kentucky, as required by Section 8(d)

(3) of the Act. In relevant part Section 8(d) states:

Provided That where there is in effect a collective-

bargaining contract covering employees in an industry

affecting commerce, the duty to bargain collectively

shall also mean that no party to such contract shall

terminate or modify such contract, unless the party

desiring such termination or modification—

(1) serves a written termination or modification

sixty days contract of the propostd termination upon

the other party prior to the expiration date thereof,

or in the event such contract contains no expiration

date, 60 days prior to the time it is proposed to make

such termination or modification;

(2) offers to meet and confer with the other

party for the purpose of negotiating a new contract

or a contract containing the proposed modification;

7. See Ozark Trailers, Inc., 161 NLRB 561. See also Stagg

Zipper Corp., 222 NLRB No. 189; and P.B. Mutrie Motor Trans-

portation, Inc., 226 NLRB No. 199.

A25

(3) notifies the Federal Mediation and Concilia-

tion Service within thirty days after such notices of

the existence of a dispute, and simultaneously there-

with notifies any State or Territorial agency estab-

lished to mediate and conciliate disputes within the

State or Territory where the dispute occurred, pro-

vided no agreement has been reached by that time;

and

(4) continues in full force and effect, without

resorting to strike or lockout, all the terms and con-

ditions of the existing contract for a period of sixty

days after such notices is given or until the expiration

date of such contract, whichever occurs later:

The Board, with court approval, has construed the

60-day period specified in Section 8(d)(4) to include a

waiting period of 30 days from the date that satisfactory

notices are given under Section 8(a) (3).5

The Union notified the Company, the Federal Media-

tion Service, and the Ohio Industrial Commission, on

November 12, 1976, of its desire to terminate the contract,

as aforestated. On February 11, 1977, the day its con-

tract with the Union expired, the Company notified its

unit drivers that they were laid off and need not report

to work. The layoff or changes in question therefore

occurred more than 60 days after the Union’s service

upon the Company of an 8(d)(1) notice, and more than

the 30 days from the date of notices outlined under 8(d)

(3), and had proper notice been given to all parties,

there would have been a delay or moratorium on changes

8. The Company argues that 8(d) (4) is inapplicable since

the Respondent did not lock out its employees, that the notifica-

tion provisions of 8(d) are aimed only at reducing the use of

economic coercion to secure bargaining advantage, and that 8(d)

(4) of the Act requires only that the notice be given by the party

that initially seeks termination of the contract.

A26

until February 10, 1977, but thereafter the Company could

probably have made lawful changes in the terms of the

contract or treated it as expired, as they had fulfilled

the waiting requirements of Section 8(d)(3) and (4).

However, in the instant case, while the Union complied

with Section 8(d)(1) of the Act, it did not fully comply

with Section 8(d)(3) since it did not serve the notice

on the proper state agency, the Kentucky Department

of Labor. While the Union, as the initiating party, had

the obligation to provide the Section 8(d) (3) notices, both

the Union and Respondent were obligated under Section

8(d)(4) to refrain from striking or locking out, respec-

tively, and to maintain in full force and effect all the

terms and conditions of the existing contract, until valid

Section 8(d)(3) notices were given.” Consequently, by

discharging the drivers on February 11, 1977, and sub-

contracting out all the driving work on February 14, 1977,

without valid 8(d)(3) notices having been served, the

Respondent terminated the contract in violation of Sec-

tions 8(d)(4) and 8(a)(5) of the Act. Moreover, as

pointed out, since the subcontracting eliminated all bar-

gaining unit work, it was not just a mere breach of

contract but, rather, went to the heart of the collective-

bargaining relationship and, therefore, constituted a clear

unilateral change in its terms and conditions. The sub-

contracting may be viewed also as a termination of the

agreement because the Respondent effectively eliminated

the bargaining unit and thereby terminated the bargaining

relationship with the Union.

9. Respondent clearly was not privileged to resort to the

change in the terms of the existing contract without regard to

the requirements of Section 8(d) merely because of some default

on the part of the Union in meeting these requirements. Had the

Company desired, it could have ascertained from the Union or

from the state agencies involved, whether all the requisite 8(d)

(3) notices had been filed and, if not, filed its own notices. See

Peoria Painting & Decorating Contractors, 204 NLRB 345.

A27

The Remedy

Having found that Respondent has engaged in certain

unfair labor practices, I shall recommend an order di-

recting it to cease and desist therefrom and to take certain

affirmative action designed to effectuate the policies of

the Act.

It having been found that Respondent’s conduct and

layoffs constituted a refusal to bargain within the meaning

of Sections 8(a)(5) and 8(d) of the Act, I shall recom-

mend that they make whole the employees laid off for

loss of earnings suffered by reason of such layoffs, by

payments to each employee of a sum of money equal

to that which they would normally have earned. The

amount of backpay due shall be computed according to

the Board’s policy set forth in F. W. Woolworth Co., 90

NLRB 289. Payroll and other records in possession of

the Respondent are to be made available to the Board,

or its agents, to assist in such computation and deter-

mining the right to reinstatement. Interest on backpay

shall be computed in accordance with Florida Steel Cor-

poration, 231 NLRB No. 117 (1977).?°

Conclusions of Law

1. The Respondent is an employer engaged in com-

merce within the meaning of Section 2(6) and (7) of

the Act.

2. The Union is a labor organization within the

meaning of Section 2(5) of the Act.

3. The Respondent has engaged in unfair labor prac-

tices violative of Sections 8(a)(5) and (1) and 8(d) (4)

of the Act.

10. See also Isis Plumbing & Heating Co., 138 NLRB 716.

eS Re re ee ee

ee Cc Or OOOO

A28

Upon the foregoing findings of fact and conclusions

of law and the entire record, and pursuant to Section

10(c) of the Act, I hereby issue the following recom-

mended: ?#

ORDER

Blue Grass Provision Co., Inc., its officers, agents,

successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with the Union

concerning the termination or modification of the col-

lective-bargaining agreement by failing to continue in

full force and effect all the terms and conditions of the

agreement for a period of 30 days from the date a proper

notice is given to Federal Mediation Service and to the

appropriate state agency of the existence of a dispute

within the meaning of Section 8(d) (3) of the Act.

(b) Subcontracting out its unit delivery operations.

2. Take the following affirmative action which is

necessary to effectuate the policies of the Act.

(a) Restore its unit delivery operations.

(b) Bargain in good faith with the Union regarding

any future subcontracting of unit delivery work.

conditions of the existing contract for a period of 30 days

following the giving of notice of a dispute to the appro-

priate agency for the State of Kentucky.

11. In the event no exceptions are filed as provided in Sec-

tion 102.48 of the Rules and Regulations of the National Labor

Relations Board, the findings, Conclusions, and recommended

Order herein shall, as provided in Section 102.48 of the Rules

and Regulations, be adopted by the Board and become its findings,

conclusions, and Order, and all objections thereto shall be deemed

waived for all purposes.

A29

(d) Reinstate and make whole all unit employees

discharged on February 11, 1977, for any loss of earnings

suffered by reason of such terminations in the manner

described in “The Remedy.”

(e) Preserve and, upon request, make available to

the Board or its agents, for examination and copying,

all payroll records, social security payment records, time-

cards, personnel records and reports, and all other records

necessay to analyze the amount of backpay due under

the terms of this Decision.

(f) Post at its place of business or plant, copies of

the attached notice marked “Appendix.”* Copies of said

notice, on forms provided by the Regional Director for

Region 9, after being duly signed by Respondent’s repre-

sentative, shall be posted by Respondent immediately

upon receipt thereof, and be maintained by it for 60 con-

secutive days thereafter, in conspicuous places, including

all places where notices to employees are customarily

posted, Reasonable steps shall be taken by Respondent

to insure that said notices are not altered, defaced, or

covered by any other material.

(g) Notify the Regional Director for Region 9, in

writing, within 20 days from the receipt of this Decision,

what steps have been taken to comply herewith.

Dated, Washington, D.C. April 14, 1978

/s/ Phil W. Saunders

Phil W. Saunders

Administrative Judge

12. In the event that the Board’s Order is enforced by a

Judgment of a United States Court of Appeals, the words in the

notice reading “POSTED BY ORDER OF THE NATIONAL

LABOR RELATIONS BOARD” shall be changed to read “POSTED

PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE NA-

TIONAL LABOR RELATIONS BOARD.”

A30

APPENDIX B

Sec. 8. (a) 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;

* * *

(3) 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 orga-

nization: Provided, That nothing in this Act, or any

other statute of the United States, shall preclude an

employer from making an agreement with a labor orga-

nization (not established, maintained, or assisted by any

action defined in section 8(a) of this Act as an unfair

labor practice) to require as a condition of employment

membership therein on or after the thirtieth day following

the beginning of such employment or the effective date

of such agreement, whichever is the later, (i) if such

labor organization is the representative of the employees

as provided in section 9(a), in the appropriate collective-

bargaining unit covered by such agreement when made;

and (ii) unless following an election held as provided

in section 9(e) within one year preceding the effective

date of such agreement the Board shall have certified

that at least a majority of the employees eligible to vote

in such election have voted to rescind the authority of

such labor organization to make such an agreement:

Provided further, That no employer shall justify any dis-

crimination against an employee for nonmembership in

a labor organization (A) if he has reasonable grounds

for believing that such membership was not available

to the employee on the same terms and conditions gen-

erally applicable to other members or (B) if he has rea-

A31

sonable grounds for believing that membership was denied

or terminated for reasons other than the failure of the

employee to tender the periodic dues and the initiation

fees uniformly required as a condition of acquiring or

retaining membership;

* » *

(5) to refuse to bargain collectively with the repre-

sentatives of his employees subject to the provisions of

section 9(a).

(d) For the purposes of this section, to bargain col-

lectively is the performance of the mutual obligation of

the employer and the representative of the employees

to meet at reasonable times and confer in good faith

with respect to wages, hours, and other terms and con-

ditions of employment, or the negotiation of an agreement,

or any question arising thereunder, and the execution

of a written contract incorporating any agreement reached

if requested by either party, but such obligation does not

compel either party to agree to a proposal or require the

making of a concession: Provided, That where there is

in effect a collective-bargaining contract covering em-

ployees in an industry affecting commerce, the duty to

bargain collectively shall also mean that no party to such

contract shall terminate or modify such contract, unless

the party desiring such termination or modification—

(1) serves a written notice upon the other party

to the contract of the proposed termination or modi-

fication sixty days prior to the expiration date thereof,

or in the event such contract contains no expiration

date, sixty days prior to the time it is proposed to

make such termination or modification;

(2) offers to meet and confer with the other

party for the purpose of negotiating a new contract

or a contract containing the proposed modifications;

A32

(3) notifies the Federal Mediation and Concilia-

tion Service within thirty days after such notice of

the existence of a dispute, and simultaneously there-

with notifies any State or Territorial agency estab-

lished to mediate and conciliate disputes within the

State or Territory where the dispute occurred, pro-

vided no agreement has Leen reached by that time;

and

(4) continues in full force and effect, without

resorting to strike or lock-out, all the terms and con-

ditions of the existing contract for a period of sixty

days after such notice is given or until the expiration

date of such contract, whichever occurs later:

The duties imposed upon employers, employees and

labor organizations by paragraphs (2), (3), and (4) shall

become inapplicable upon an intervening certification of

the Board, under which the labor organization or indi-

vidual, which is a party to the contract, has been super-

seded as or ceased to be the representative of the em-

ployees subject to the provisions of section 9(a), and

the duties so imposed shall not be construed as requiring

either party to discuss or agree to any modification of

the terms and conditions contained in a contract for a

fixed period, if such modification is to become effective

before such terms and conditions can be reopened under

the provisions of the contract. Any employee who en-

gages in a strike within the sixty-day period specified

in this subsection shall lose his status as an employee

of the employer engaged in the particular labor dispute,

for the purposes of sections 8, 9, and 10 of this Act, as

amended, but such loss of status for such employee shall

terminate if and when he is reemployed by such em-

ployer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.