Davis Furniture Co. v. N. L. R. B., 94 N. L. R. B. 279 (1951)

Tizzano, Marion James

English

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Buffalo Law Review Volume 2 Number 1 Article 53 12-1-1952 Labor Law—Defensive Lockout as Unfair Labor Practice Marion James Tizzano Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Labor and Employment Law Commons Recommended Citation Marion J. Tizzano, Labor Law—Defensive Lockout as Unfair Labor Practice, 2 Buff. L. Rev. 155 (1952). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol2/iss1/53 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. RECENT DECISIONSthat the statute defining the power to punish summarily must bestrictly interpreted and its application narrowly limited. SeeNye v. United States, 313 U. S. 32 (1940).Janet C. MoFarlan4LABOR LAW-DEFENSIVE LOCKOUT ASUNFAIR LABOR PRACTICEWhen negotiations between a multi-employer association andunion had reached an impasse, over an association-wide contract,the union struck against one member. The other eleven membersimmediately notified their employees that their stores were closedbecause of the union's action. The National Labor RelationsBoard ruled that the employers had committed an unfair laborpractice. Davis Furniture Co., 94 N. L. R. B. 279 (1951). On ap-peal, the Court of Appeals held that the evidence upon which theBoard relied did not support its finding that such action was amere reprisal to defeat the strike, and remanded the case to theBoard for a determination of whether such a temporary lockoutwas lawful when used in a labor dispute solely as a counter-economic force to resist the strike. Davis Furniture Co. v.N. L. R. B. - F. 2d 1 30 L. R. R. M. 2294 (9th Cir. May 29,1952). The Board again found that this temporary lockout vio-lated §8 (a) (1) and (3) of the LABOR MANAGEMENT RELATIoNs ACT,June 23, 1947, 29 U. S. C. §158 (a) (1) and (3). Davis FurnitureCo., 100 N. L. R. B. No. 158 (Sept. 5, 1952).At common law the lockout was considered a lawful device toresist the threat of the labor movement. Iron Moulders Union v.Allis Chalmers Co., 166 Fed. 46 (7th Cir. 1908); Sinsheimer v.United Garment Workers, 77 Hun 215, 28 N. Y. Supp. 321 (Sup.Ct. 1894); see also M-Willis and Montgomery, ORGANIZED LABOR 555,(1945). The NATIONAL LABOR RElATIONs ACT, 49 STAT. 449 (1935),29 U. S. C. §§151-166 (1947) which proscribes as unfair labor prac-tices any interference with protected union activity does not ex-pressly forbid or sanction lockouts. The Board has declared alockout to be in violation of the Act where the plant was closed bythe employer in circumstances that indicated that the real reasonfor the closing was to avoid and destroy the rights of the em-ployees as provided by the Act. N. L. R. B. v. Hopwood RetinningCo., 98 F. 2d 97 (2d Cir. 1939); N. L; R. B. v. Stremel, 141 F. 2d317 (10th Cir. 1944). See also, Teller, LABOR DISPUmEs Am CoLTZc-TivE BARGAINING (1940 ed.), I, 247, 494, and II, 771-772.Lockouts have been permitted where the employer wouldotherwise be subjected to undue economic hardship, e. g.: (1) untilBUFFALO LAW REVIEWa union signed a no-strike pledge to prevent continued businesslosses that resulted from repeated strikes, International Shoe Co.,93 N. L. R. B. No. 159 (March 26, 1951); (2) where there was athreatened sit down strike which would cause syrup spoilage,Duluth Bottling Ass'n., 48 N. L. R. B. 1335 (1943) ; (3) to preventloss of customer good will which would have resulted from a clos-ing of repair shops while cars were dismantled. Betts CadillacOlds., Inc., 96 N. L. R. B. No. 46 (September 21, 1951).In Morand Bros. Beverage Co. v. N. L. R. B., 190 F. 2d 576,582 (7th Cir. 1951), with facts identical to those of instant case theCourt, in remanding to the Board said, "(E)mployers should beable to counter the economic force of a strike with the economicforce of a lockout". Before the Board, however, the action of theemployer was found to be a complete discharge and illegal on suchgrounds. Morand Bros. Beverage Co., 30 L. R. IR. M. 1178 (June30, 1952). The question posed by the Court as to whether a lockoutquoted above would be legal if used defensively was not met by theBoard, and stands as but an indication of the judicial attitude onit.In the instant case the Court said,(B)y the linking of the terms "strike" and "lockout" in thestatute, it is arguable that Congress has recognized strikesand lockouts as correlative powers to be employed by the ad-versaries in collective bargaining when an impasse in negotia-tions is reached. _ F. 2d , 30 L. R. R. M. 2294, 2299 (9thCir. May 29, 1952).Together, these remarks indicate that the Courts may nowsustain a lockout in the absence of circumstances creating an un-due hardship to the employer, when they find that the employerwas not trying to break the union or interfere with the protectedconcerted activity but was only resisting, with an economic force.the economic pressure of the strike. They reach this result on theground that the bona fide motive or purpose of the lockout keepsit from violating the proscriptions of the Act.However, the Board in the instant case, found that this tem-porary lockout constituted interference with protected unionactivity, despite the good motives of the employer. In its deter-mination, the Board was primarily concerned not with the mo-tives involved, but rather with the results of the employer's acts.Therefore, the lack of intent to interfere was held not to excuseconduct which in fact did interfere. N. L. R. B. v. Hopwood Re-tinning Co., supra; N. L. R. B. v. Somerset Shoe Co., supra.In so holding, the Board continues to appraise a lockout from thepoint of view of its results. In the Morand case, supra, the CourtRECENT DECISIONSin formulating a test based on intent was attempting to equalizewhat they considered to be the inferior bargaining position of anemployer. Such an approach was contrary to the test traditionallyemployed by the Board.The decision of the instant case, in repudiating the test formu-lated by the Court in the Morand case illustrates the Board's ap-parent determination to retain policy formulation on 'the adminis-trative level.Marion James TizzanoARBITRATION-AWARD OF CONDITIONAL PENALTY BYARBITRATION BOARD HELD UNENFORCEABLEAn arbitration award against a union for striking in violationof its collective bargaining agreement was affirmed by the supremecourt under N. Y. CIVI PBACTiCE ACT §1461. The award providedfor $2000 actual damages and a conditional penalty of $5000, pay-able if the arbitration board finds that the union has again violatedits non-strike provision. The contract gave the arbitrators ex-press authority to make this agreement effective, including thepower "to impose damages, money or other penalties" upon anyparty found guilty of a violation. HELD (3-2): Penalty vacatedon the grounds that (1) the penalty provision of the agreementis unenforceable at law and (2) the award is not final and definitewithin Cvii PRACTICE ACT §1462 (4). Matter of Publishers' Assn.(Newspaper Union), 280 App. Div. 500, 114 N. Y. S. 2d 401 (1stDep't 1952).The New York courts have consistently adhered to the gen-eral rule that the award of, an arbitrator cannot be set aside forerrors of judgment either as to the law or the facts if the a:bitra-tor keeps within his jurisdiction and is not guilty of fraud, cor-ruption or other misconduct. Matter of Wilkins, 169 N. Y. 494, 62N. E. 575 (1902); Matter of Delma Engineering Corp., 293 N. Y.653, 56 N. E. 2d 253 (1944). An award becomes enforceable exceptwhere grounds exist as specifically provided in CvnL PRACTICE ACT§k1462 for vacating the award. Errors, mistakes, and departuresfrom strict legal rules are included in the arbitration risk. PineStreet Realty Co. v. Coutrouios, 233 App. Div. 404, 253 N. Y. S.2d 309 (1st Dep't 1931). In general the courts are reluctant to re-consider the merits of arbitration awards. Morris White Fash-ions, Inc. v. Susquehanna Mills, Inc., 295 N. Y. 450, 68 N. E. 2d 437(1946). Courts would defeat the chief advantages of arbitrationby reviewing the merits of an award. See Scoles, Review ofLabor Arbitration Awards on Jurisdictional Grounds, 17 U. o'

Labor Law—Defensive Lockout as Unfair Labor Practice

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Labor Law—Defensive Lockout as Unfair Labor Practice

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