Washington Law Review


Bryan E. Lee


In International Union, United Automobile Workers v. National Labor Relations Board (UAW v. NLRB), the United States Court of Appeals for the District of Columbia Circuit held that it was not an unfair labor practice under the National Labor Relations Act (NLRA) when an employer threatened to relocate certain operations from a union plant to a nonunion plant in order to coerce the union into making midterm wage concessions. Nor was it an unfair labor practice when the employer then carried out the threat to relocate after the union refused to make the wage concessions. The D.C. Circuit decision affirmed on appeal the Supplemental Decision and Order of the National Labor Relations Board (Board) in Milwaukee Spring 11, but on a different legal basis. The Board decision in Milwaukee Spring 11 was an attempt to establish a broad per se rule permitting midterm relocations unless prohibited by an express provision in the collective bargaining agreement. This was a direct reversal of the previous Board rule, applied in Milwaukee Spring 1, which restricted midterm relocations if motivated by a desire to avoid the terms of an existing collective bargaining agreement, unless a specific provision in the agreement authorized the employer to make midterm relocation decisions. This Note analyzes the union's legal theory and the court's response, and considers additional arguments not presented by the union or discussed by the court. This Note then analyzes the effect of the D.C. Circuit decision on the Board's new rule, and predicts the result in varying factual circumstances. This Note concludes that when an employer's predominant motivation is to avoid the terms of a collective bargaining agreement in order to realize a greater return in an enterprise, the threat of a midterm relocation is not only a prohibited interference with employee rights, but also a breach of contract under the implied covenant of good faith and fair dealing. This Note predicts that unions may utilize the breach of contract action in the future to circumvent the current Board's political stance favoring nonintervention.

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