Holding that an employer is prohibited "from altering contractual terms concerning mandatory subjects of bargaining during the life of a collective bargaining agreement without the consent of the union"
In NLRB v. Island Typographers, Inc., 705 F.2d 44 (2 Cir. 1983), at 50 n. 8, the Second Circuit concluded that a decision to update a plant's technology was within the class of decisions subject to the First National balancing test, but that there was no need to apply the test in light of its conclusion that the union had waived its right to bargain over the decision.
In N.L.R.B. v. Spun-Jee Corporation, 385 F.2d 379 (2d Cir.), it was found that the union was clearly put on notice of the intended shutdown of the plant and its removal to a different state and that the union had thus waived its right to bargain.
In N.L.R.B. v. Alva Allen Industries, Inc., 369 F.2d 310, 318 (8th Cir. 1966), the court found no bad faith bargaining where the parties had reached agreement on about 80% of the issues, were apart on wages and union security when the employees struck, and negotiations continued but the employer remained adamant on union security, because "it is only natural that the Company, sensing its strong position, will bargain with increasing toughness and will be less inclined to make concession to the Union."