S & W Motor Lines, Inc. v. National Labor Relations Board, and Teamsters Local Union No. 391, Intervenor

I

I do not agree with the majority that an employer, caught up in the throes of economic uncertainty associated with a strike, should not be forced to raise a “foredoomed” issue for bargaining unless the alleged violation under § 8(a)(1) “is incontestable from the very outset.” While the purpose behind this holding is apparently to protect employers from being punished twice, under both § 8(a)(1) and (5), for the good faith implementation of purportedly legal wage payments, I think this misconstrues the rationale underlying both NLRB v. Rubatex, 601 F.2d 147 (4th Cir. 1979), and Aero-Motive…