National Gypsum Co., Inc.,

National Labor Relations Board - Board Decisions

Sep 29, 1986

281 N.L.R.B. 593 (N.L.R.B. 1986)

NATIONAL GYPSUM CO.
National Gypsum Company, Inc., Gold Bond Build-
ing Products Division and International Broth-
erhood of Boilermakers, Iron and Shipbuilders,
Blacksmiths, Forgers and Helpers , AFL-CIO,
Local 88.1 Case 1-CA-21122
29 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 6 November 1984 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel and the Charging Party
filed cross-exceptions and supporting briefs, and the
Chamber of Commerce filed a brief as amicus
curiae . Thereafter, the Respondent filed a brief in
opposition to the General Counsel 's and the Charg-
ing Party's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order. 2
The judge, relying on Oshkosh Ready Mix Co.,
179 NLRB 350 (1969), enfd . 440 F.2d 562 (7th Cir.
1971), cert. denied 404 U.S. 858 (1971), found that
the Respondent violated Section 8(a)(3) and (1) by
continuing to operate its business with temporary
replacements during a lockout not forced or caused
by union action . We disagree.
In Harter Equipment, 280 NLRB 597 (1986),
which issued after the judge's decision , we recently
overruled Inland Trucking and held that "an em-
ployer does not violate Section 8 (a)(3) and (1),
absent specific proof of antiunion motivation, by
using temporary employees in order to engage in
business operations during an otherwise lawful
lockout, including a lockout initiated for the sole
purpose of bringing economic pressure to bear in
support of a legitimate bargaining position." The
General Counsel has not proven specific antiunion
motivation or any illegality in the lockout itself.
Accordingly, we conclude, for the reasons fully set
forth in Harter, that there was no basis for finding
that the Respondent's continued operation of its
' Pursuant to the General Counsel 's motion, the case caption has been
corrected to reflect a change in the name of the Charging Party follow-
ing issuance of the judge's decision.
2 The Respondent has requested oral argument . The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties. We also deny the Respondent 's motion to reopen
the record.
593
business with temporary replacements after locking
out its union-represented employees violated Sec-
tion 8(a)(3) and (1).
ORDER
The complaint is dismissed.
Michael Fitzsimmons Esq., for the General Counsel.
L. Anthony Messina and James Sullivan, Esq& (Pepper,
Hamilton & Scheetz), of Philadelphia, Pennsylvania, for
the Respondent.
Michael N. Katz, Esq. (Meranze, Katz, Spear & Wilder-
man), of Philadelphia, Pennsylvania , for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried on November 30 and December 1,
1983 , and January 3, 1984 , in Boston, Massachusetts. The
complaint alleges that Respondent converted an other-
wise lawful lockout of bargaining unit employees at its
Portsmouth , New Hampshire facility into an unlawful
lockout, in violation of Section 8(a)(3) and (1) of the
Act, when it temporarily replaced those employees "by
using non unit employees ... [and] replacements hired
from the outside and by ... subcontracting ... their
work." Respondent admits locking out and temporarily
replacing the employees in question but denies having
committed any violation of the Act.
The events in question occurred in the context of ne-
gotiations toward renewal of a collective-bargaining
agreement between Respondent and the Charging Party
Union (the Union) which expired on April 1 , 1983. Re-
spondent locked out the union -represented employees
immediately on expiration of the contract and thereafter
operated the Portsmouth facility with other personnel.
Respondent asserts that its action was lawful because (1)
there is no evidence that it was the product of union
animus, and (2) it was effectuated in response to "the of-
fensive tactics" employed by the Union in coordinating
its bargaining efforts and possibly coordinating strike ef-
forts with other unions representing employees at various
other facilities operated by Respondent . Respondent also
contends that the continued operation of the Portsmouth
plant was necessitated by its obligation , in the face of a
possible permanent loss of business , to continue servicing
its clientele. Respondent and the General Counsel have
filed briefs which I have read and considered.
Based on the entire record in this case,' including the
testimony of the witnesses and my observation of their
demeanor, I make the following
' There were many exhibits in this case . Many of my copies were not
numbered properly . This lack of attention by the reporting service caused
difficulty and delay in the preparation of this case.
281 NLRB No. 96
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a nationwide concern incorporated in the
State of Delaware , has an office and place of business lo-
cated at Freeman 's Point, Portsmouth , New Hampshire,
where it is engaged in the manufacture , sale, and distri-
bution of gypsum wallboard . Annually, in the course and
conduct of its operations , Respondent receives at its
Portsmouth facility, directly from points located outside
the State of New Hampshire , goods and materials valued
in excess of $50,000 and also ships from its Portsmouth
facility goods and materials valued in excess of $50,000
directly to points outside New Hampshire. Accordingly,
I find, as Respondent admits, that it is an employer en-
gaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent employs approximately 65 maintenance
and production employees at its Portsmouth facility.2
They are represented by the Union for the purpose of
collective bargaining and have been so represented for at
least 30 years. Respondent and the Union have been sig-
natories to a succession of 2-year collective -bargaining
agreements which generally expire on April 1 of each
odd-numbered year. As previously noted, the most
recent contract, and the one whose renewal led to the in-
stant controversy, was set to expire on April 1, 1983.
Including its Portsmouth facility, Respondent operates
some 33 plants nationwide, 18 of which are, like Ports-
mouth, involved in the manufacture and distribution of
gypsum wallboard. The remainder of the plants are in-
volved in the manufacture of related products but not
the wallboard itself. Of the 18 gypsum wallboard plants,
approximately one-half, including Portsmouth , are repre-
sented by locals of United Cement Lime & Gypsum
Workers International Union (Gypsum Workers Interna-
tional). The remainder of these facilities, with the excep-
tion of three nonunion plants, are represented by other
labor organizations . These are locals of International
Union of Operating Engineers, United Paperworkers
International Union, United Steelworkers of America
(USW), and Oil Chemical and Atomic Workers Interna-
tional Union (OCAW).
2. Bargaining history
A full understanding of the 1983 bargaining which
spawned the lockout and Respondent's asserted reasons
for the lockout requires an analysis of prior bargaining
2 The remainder of the staff, numbering approximately 10, is composed
of supervisors and office support personnel
history, particularly as regards attempted coordinated
bargaining by the Union . This took place under the aegis
of two organizations connected with the Union , its Inter-
national Union and the Industrial Union Department of
the AFL-CIO (IUD). A discussion of bargaining history
in this context follows:
a. Involvement of the IUD
Until approximately 1969 , Respondent's bargaining re-
lationship with its union facilities was one in which Re-
spondent negotiated separate collective -bargaining agree-
ments on a plant-by-plant basis with the local union rep-
resentatives of the particular plant in question . During
that year, as well as in subsequent years, however, there
was an attempted change in that relationship , at least on
the part of some of the unions involved, as evidenced by
Respondent's first direct contact with the IUD.
Joseph Campagna, the collective -bargaining coordina-
tor of the IUD , testified that the goal of his organization
is to obtain the same benefits for all the employees of a
particular company in terms of wages and working con-
ditions, regardless of which union represents them. Ac-
cording to Campagna , the optimum result is to negotiate
a single comprehensive collective-bargaining agreement
covering all the unions having a collective-bargaining re-
lationship with the employer in question.
The means employed by the IUD to attain its goal is
coordinated bargaining . According to IUD brochures
placed into evidence by Respondent , the ideal situation is
for the IUD to arrange joint bargaining negotiations in
which the representatives of all unions , as well as the
IUD, are present and participate . However, if a company
does not accede to single joint negotiations, and the
unions must therefore continue to negotiate separate col-
lective-bargaining agreements, the ends of coordinated
bargaining may still be attained by such measures as each
union presenting and insisting on the company 's agree-
ment to uniform bargaining proposals , which are formu-
lated under the auspices of the IUD, the unions insisting
that their collective-bargaining agreements expire on a
common date, so as to create the possibilty of simultane-
ous strike action and thus significantly enhance the
unions' bargaining position , and by having an IUD repre-
sentative present at and participate in bargaining sessions
so as to present a united front against the employer.3
In order to become involved as detailed above, the
IUD must first be approached by one of the Internation-
al unions which has a bargaining relationship with the
object company. If the IUD considers its involvement
feasible, it creates a coordinated bargaining committee
for that particular employer which is composed of
"international staff and the representatives of the leader-
ship of each local union who have the responsibility of
negotiating their contracts." At meetings of the commit-
tee, the IUD informs the delegates of the benefits and
wages offered by the employer to each of its unions, so
as to facilitate the formulation of uniform bargaining de-
3 The IUD also acts as an information conduit to its member unions It
relays information to them concerning collective-bargaining negotiations
and contract settlements involving comember unions and the particular
company of interest.
NATIONAL GYPSUM CO.
mands . The IUD also establishes an International presi-
dent's committee (President's Committee) consisting of
the presidents or their delegates of "the international
unions having bargaining rights with the company." The
purpose of this committee is "to guide the . . . activities
of the full committee."
The National Gypsum Committee , which was estab-
lished sometime during or shortly prior to 1969, consists
of delegates from the local unions of the Gypsum Work-
ers International , as well as from the four other Interna-
tional unions whose locals represent workers at Respond-
ent's wallboard manufacturing facilities . The current
Gypsum Workers International delegate to the presi-
dent's committee is Tyrone Perkins , who is actually a
vice president of the International and who also has the
title of "Coordinator assigned to coordinate National
Gypsum."
In mid-1969, Respondent was faced with the expiration
of collective-bargaining agreements at three of its facili-
ties-Portsmouth on April 1 , 1969; Shoals, Indiana, on
April 15, 1969; and National City, Michigan, on June 1,
1969 . In addition , its Burlington , New Jersey facility had
been on strike since June 7 , 1968.4 The IUD was active
in the formation and presentation of generally uniform
economic proposals at each location as well as demands
for a common expiration date for each contract. Re-
spondent did not agree to these proposals, and the parties
reached impasse at each location. The Shoals and Ports-
mouth collective -bargaining agreements thus expired
without settlement , and the union employees struck these
locations on April 16 and 22 , respectively.
On April 23 or 24, 1969 , the IUD held a meeting of
the National Gypsum Committee in Burlington, New
Jersey, which was attended by union representatives
from not only the four above-mentioned facilities, but
also from Respondent's plants at Fort Dodge, Iowa;
Lorain, Ohio; Savannah, Georgia; Rotan, Texas; New
York; New Haven, Connecticut ; and Clarence Center,
New York . At negotiation sessions on June 16, 1969, at
Portsmouth, and on June 3, 1969, at Shoals, Respondent
was informed by union negotiators that these facilities
were committed to a five -plant coordinated bargaining
effort with Burlington, National City, and Rotan. Offi-
cials of the local at Portsmouth also informed Respond-
ent that no decisions on contract proposals would be
made unless first approved by the IUD.
In early June 1969, union negotiators at National City
informed Respondent that, in order to avoid a strike, it
would have to negotiate directly with IUD representa-
tives or the five International presidents composing the
president's committee. The Respondent refused, and the
union employees at National City struck on June 21,
1969. Thus, as of that date , employees were on strike at
four of Respondent 's facilities-National City, Burling-
ton, Shoals, and Portsmouth.
Despite this concerted pressure, Respondent success-
fully resisted the coordinated efforts of the unions. Em-
4 The employees of Shoals , like those of Portsmouth are represented
by a local of the Gypsum Workers International ; the National City em-
ployees are represented by a local of the OCAW; and the Burlington em-
ployees are represented by a local of the USW.
595
ployees at Shoals returned to work on July 11 , 1969; at
Portsmouth on July 15 ; at National City on July 17; and
at Burlington on August 24. The expiration dates of the
resulting collective-bargaining agreements remained as
they had been previously and there is no evidence that
the unions succeeded in obtaining uniformity of econom-
ic benefits at the plants in question.
During the next 2 years, the coordinated bargaining ef-
forts of the IUD decreased markedly . Its activity in the
1971 negotiations was essentially confined to Campagna's
limited participation in the negotiations at Portsmouth,
Phoenix, Shoals, and Lorain.5 At each of the negotia-
tions, Campagna was introduced as the pension-insurance
expert for the IUD and his participation was confined to
negotiating points relative to that subject . A new con-
tract was signed at Portsmouth prior to the 1971 expira-
tion date of the old contract and no economic action was
taken by either the Union or the Respondent . In 1972,
formal IUD activity was nil, except that it continued to
act as an informational conduit for members of the Na-
tional Gypsum Committee.
In March 1973 , the IUD held a meeting of the Nation-
al Gypsum Committee which was attended by represent-
atives of 9 of the 14 locals of the Gypsum Workers
International which , at that time, had collective-bargain-
ing rights with Respondent . All representatives were fur-
nished with an analysis of collective-bargaining agree-
ments at all Respondent's locations. The IUD subse-
quently played an active role in the 1973 negotiations at
Respondent's facilities at Westwego, Louisiana, Ports-
mouth, Shoals, Rotan, New Haven, Lorain, and Wauke-
gan, Illinois. Campagna appeared and negotiated at
Portsmouth , Westwego, and Shoals . At each of the
above locations, with the exception of Shoals , the union
negotiators presented a list of demands which included
the following IUD proposals: (1) a most-favored nation
clause; (2) a limited no-strike clause; and (3) a common
expiration date for all contracts . The contracts at the
Westwego, Portsmouth, and Shoals locations expired
without settlement on February 1, and April 1 and 10,
respectively . Fearing that employees at these facilities
might ultimately strike simultaneously as they had in
1969, Respondent effected lockouts at the above three lo-
cations.6
In early July 1973 , an attempt was made by the
Gypsum Workers International and IUD representatives
to secure direct negotiations between Respondent and
Campagna , the purpose of which was to resolve all three
contracts . Respondent refused . Subsequently, union rep-
resentatives indicated that they desired a uniform settle-
ment at all three facilities . A settlement was achieved at
Portsmouth in September but only after a settlement was
first reached in Westwego . A settlement was then subse-
quently obtained at Shoals . However, the IUD again
5 The employees at Phoenix and Lorain are also represented by a local
of the Gypsum Workers.
a The lockout at Westwego lasted from February 5 to March 7, 1973;
the lockout at Portsmouth from April 1 to 9; the employees worked
without a contract until April 25 and were again locked out until Sep-
tember 17; and the lockout at Shoals lasted from April 26 until October
15.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to achieve its goal of uniformity of collective-bar-
gaining agreements or of contract expiration dates.
There is little evidence in the record concerning IUD
activity relative to Respondent 's negotiations from 1975
through 1977. The record does indicate, however, that
Respondent effected lockouts at Westwego and Ports-
mouth in 1975,7 after the parties failed to renegotiate
their contracts prior to the expiration dates of the old
contracts . There is no evidence of any simultaneous
strike activity during the 1975-1978 period. The record
does indicate that, in 1977 , a new contract was signed at
Portsmouth on March 21, some 10 days prior to expira-
tion.
Samuel Schiffman , Respondent 's director of employee
relations, testified that, in 1978, Respondent experienced
yet another incident of coordinated bargaining at its
Mobile, Alabama, and Savannah, Georgia facilities, both
of which are represented by locals of the Gypsum Work-
ers International. Schiffman testified as follows concern-
ing the 1978 negotiations at Mobile:
Q. And you indicated that the company received
a serious threat of coordinated bargaining efforts at
that location; did you participate in those discus-
sions as to what constituted a serious threat?
A. Yes, some of them.
Q. Okay. And with respect to the meetings that
you participate or discussions, what were the seri-
ous threats that indicated an effort at coordinated
bargaining ; can you explain that to us?
A. There were a couple of major issues that, at
least one of which, tied in directly with the coordi-
nated bargaining threat as we perceived it.
One of these issues, the most important one, was
a demand for common expiration dates ; that is, with
respect to Mobile, Alabama, Savannah, Georgia
which had roughly the same expiration date al-
ready.
Other plants that had, at that time, different expi-
ration, contract expiration , dates a desire to estab-
lish a common expiration date, thereby, of course,
increasing the bargaining leverage or strength,
which the union might have in grouping together
various locals.
The other issue was a demand for, as I recall, a
cost of living provision which was not in any of our
agreements at that time with this particular union,
nor is it to this day, but there was a very strong
push for that particular item to be included in the
labor agreement in Mobile and other locations.
These-I might add , these issues were advanced
by Mr. Weaver who was acting as the chief spokes-
man on behalf of the Local at Mobile, and also by
Mr. Campagna during the bargaining who was
there on behalf of the IUD, who also participated in
the discussions at the table.
Q. Did you receive a union proposal at Mobile at
the beginning of those bargain-of that bargaining
back in '78?
9 The Westwego lockout lasted from February 10, 1975, until March
22, 1976, the Portsmouth lockout lasted from April 4 to May 12, 1975.
A. Yes.
Q. Were there any similarities between those pro-
posals and the proposals that you received at the
other National Gypsum locations at that time?
A. Yes. They were very similar; almost identical.
Contracts at both facilities expired without settlements
having been reached . Respondent thereafter locked out
the employees at both plants and continued to operate
them by using temporary replacements.8
Since 1980, IUD activity relative to Respondent has
been virtually nonexistent . Campagna testified that he
has not participated in any of Respondent's negotiations
since "1979 or 1981,"9 and there is no evidence that any
union has submitted IUD proposals to Respondent since
the 1970s or that the IUD has been active in formulating
such proposals . Campagna testified , as did Perkins, that
there has been no meeting of the IUD's National
Gypsum Committee since Campagna attributed this lack
of activity to the IUD's prior failure to coordinate bar-
gaining at Respondent's facilities . In this regard, he was
corroborated by Schiffman who admitted that Respond-
ent has successfully resisted the IUD's coordinated bar-
gaining attempts.
Documentary evidence confirms the testimony of
Campagna concerning the lack of IUD success in its co-
ordinated bargaining efforts as well as its lack of activity
since 1980 . An April 30, 1980 letter from Kent Weaver,
Perkins' predecessor as the Gypsum Workers delegate to
the National Gypsum President's Committee, to Cam-
pagna refers to a "lack of effectual participation from
seven out of nine national or international unions who
have contracts with [Respondent]" having rendered the
IUD "unable to achieve any meaningful form of coordi-
nated bargaining ." In a November 1981 letter to another
Gypsum Workers International official, Weaver noted:
"Due to a lack of attention by the IUD . . . National
Gypsum coordinated bargaining has reached an all time
low." He also refers to there having been no National
Gypsum Committee meeting since May 1980. Finally, in
an internal IUD memorandum in May 1981, Rhoda
Singer, secretary to Campagna, described IUD National
Gypsum Committee activity as having been "not very
much since January of 1981."
At Perkins' request , Campagna attempted to organize
National Gypsum Commitee meetings in both early 1982
and early and mid-1983. However, both efforts were un-
successful due to a lack of interest on the part of the
member unions . During 1983 , the IUD continued to act
as an information conduit to its member unions . Accord-
ingly, Campagna did receive copies of Respondent's 1983
Portsmouth and Shoals contract proposals. However,
8 The Mobile lockout lasted from September 23, 1978, to January 17,
1979, the Savannah lockout from January 6 to 22, 1979
6 Samuel Scluffman testified that he observed Campagna at negotia-
tions at Respondent 's Mobile, Alabama plant in 1980. Additionally, union
correspondence introduced into evidence by Respondent indicates that
there were requests from Gypsum Workers International officials during
1981 that Campagna be present at certain of Respondent' s negotiating
sessions . Thus, it appears likely that Campagna continued to negotiate
through 1981
NATIONAL GYPSUM CO.
there is no evidence that the IUD played any part in the
negotiations.
b. Involvement of the Gypsum Workers International
Union
Over the years, the Gypsum Workers International has
played an active role in the negotiations of collective-
bargaining agreements between its locals and Respond-
ent. In 1978 , the Gypsum Workers International Policy
Committee (IPC) formulated a list of some 30 bargaining
demands . These demands were presented to Respondent
at every collective-bargaining negotiation from 1981
through 1983 . These proposals are given to the officials
of the locals who attach them to their own proposals,
which they alone formulate . Perkins described the IPC
proposals as a "wish list." On the other hand , Schiffman
and Thomas Lynch, a labor relations attorney with Re-'
spondent who participated in the 1983 Portsmouth nego-
tiations, testified that these proposals were taken serious-
ly by Respondent . However, in a memorandum dated
February 3, 1983, describing preparations for the upcom-
ing negotiations at Portsmouth , Plant Manager Arthur
Feith stated : "Considering any of these thirty [Interna-
tional] demands is not considered necessary for a settle-
ment . . . ." Indeed, as will be discussed fully infra,
during the course of the 1983 negotiations at Ports-
mouth , the International proposals were actually taken
off the table prior to the expiration of the contract.
There is no evidence that any of these proposals actually
appeared in any final collective-bargaining agreement.
Thus, it appears that Perkins' description of the Interna-
tional proposals is accurate.
In addition , an International official is generally, along
with representatives of the local union , involved as a
member of the negotiating team and usually acts as the
chief union spokesman. Schiffman testified that either
Perkins or his predecessor has participated in negotia-
tions at Respondent 's Shoals, Mobile, Phoenix , Savannah,
Richmond, California, Fort Dodge , Iowa, and Medicine
Lodge, Kansas facilities.
Perkins testified that he has negotiated at various but
not all Respondent's facilities when the employees are
represented by locals of the Gypsum Workers . He also
testified that other International officials have negotiated
at the remaining locations . Perkins further testified that
he appears at negotiations only when requested by offi-
cials of the local and that his function at the negotiating
table is purely advisory. He noted that, although he
might aid in the formulation and presentation of propos-
als, the final decision concerning what is presented is left
to the officials of the local involved . Moreover, both
Perkins and Orville Harrison , president of the Ports-
mouth local , testified credibly that the final authority to
accept or reject a particular proposed contract lies with
the membership of the local. 10
10 Like the IUD , the Gypsum Workers International also acts as an
information conduit, forwarding details concerning negotiation and settle-
ments at Respondent 's facilities to the presidents of all its local unions
that have bargaining rights with Respondent . Copies of such information
are also routinely forwarded to the IUD.
597
3. The 1983 negotiations and the lockout
The collective-bargaining agreement at Portsmouth
was set to expire on April 1 , 1983, at 12 :01 a.m. Some-
time prior to March 15, Perkins had a series of telephone
conversations with Thomas Lynch, a labor relations at-
torney with Respondent , concerning the arrangement of
negotiations." Due to prior commitments , neither was
available for negotiations until March 15 . During the
course of these conversations , according to the testimony
of Lynch, Perkins informed Lynch that he would also be
unavailable during the week of March 20 , but would ar-
range for Bob Simmons, another International represent-
ative, to attend the sessions in his stead . As a result,
Lynch "kept his calendar open" for meetings through
March 31.
In accordance with prior agreements, the first bargain-
ing session was held at the Portsmouth facility on March
15, 1983 . Respondent's negotiating committee was com-
posed of Lynch, Arthur Feith , the Portsmouth plant
manager, Judith Selley , a personnel and safety supervisor
from another of Respondent's facilities, and Charlie
Murphy, a production supervisor at the Portsmouth
plant . The Union's committee was composed of Gypsum
Workers International Officials Perkins and Simmons, as
well as Orville Harrison, president of the Local and an
employee at Portsmouth, and eight other Portsmouth
employees , including Sandra Jones.
The initial proposals of both sides were exchanged at
this March 15 meeting . The union proposals numbered
67. The first 30 were the standard IPC proposals ; the re-
mainder had been formulated by officials of the local.
The Union asked for a "$1 per hour across the board"
increase and for increases in pension benefits. Respond-
ent's initial proposal, which numbered 41 separate
clauses, included , inter alia, an extensive management-
rights clause which was broader than that in the old con-
tract, t a and an insurance containment provision which
obligated Respondent to pay the cost of group insurance
only at its current rate . Lynch testified that he was not
surprised by the union proposal and described it as "the
standard international proposal that we had seen at just
about every other Gypsum Worker location with some
11 Lynch is based at Respondent 's headquarters in Charlotte, North
Carolina . He travels to various of Respondent 's facilities throughout the
country to aid in the negotiation of collective-bargaining agreements.
12 The proposed management-rights clause read as follows:
The Management of this plant and the direction of working forces
including, without limitation , the right to schedule its operations or
to extend, limit, curtail, or reschedule its operations when in its sole
discretion it may deem it advisable to do so ; the right to determine
whether, when and to what extent any work shall be performed by
its employees; the right to hire, promote , demote, suspend or dis-
charge; the right to establish Company work rules ; the right to es-
tablish and change job classifications , and to change the grouping of
any classifications ; the right to transfer or lay off due to lack of
work; and in general all of the functions of Management not express-
ly limited by this Agreement are reserved to and vested exclusively
in the Company.
The management-rights clause in the expiring agreement was markedly
less inclusive:
6-Section 6. This agreement recognizes the inherent right of the
Company to conduct its business in all particulars except as modified
herein.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
local proposals on there," adding "[T]here was nothing
in there that was especially startling , though, no."
The March 15 meeting as well as a subsequent meeting
on March 16 was essentially spent reviewing and ex-
plaining the proposals . At some point during the course
of the March 16 meeting, the Union raised the issue of
pay for its committee members . According to the uncon-
tradicted testimony of Lynch, it was the position of the
union negotiators that the Portsmouth employees who
were part of the union negotiating committee should be
paid for time spent on negotiations during working
hours. The Union wanted this issue resolved prior to
proceeding to substantive negotiations.
According to Lynch, Respondent interposed a two
pronged objection : (1) that this was essentially an eco-
nomic issue , not a preliminary matter, which should be
discussed in turn ; and (2) that in view of "the hardest
economic times facing it since the great depression, that
it was not business as usual and being able to pay the
committee was just something that the Company was not
going to do." Respondent also objected to the number of
employees on the union committee. The nine represented
14 percent of the bargaining unit. It was Respondent's
view "that that was a disproportionate number of people
for that size unit ... and was an exceptionally large ex-
pense to pay the committee." Lynch admitted, however,
that committee pay is "considered part of negotiations"
and that regarding payment, "the general practice his-
torically is that we do pay." He also noted that, at the
last negotiations at Portsmouth , the committee had been
paid in full. He testified , however, that Respondent had
begun to change that practice, by, on at least one occa-
sion at another facility, successfully suggesting that nego-
tiations take place after working hours in order to save
expenses . He testified that such a suggestion was pro-
posed to the Union at Portsmouth and it was rejected.
The committee pay issue was thus not resolved at the
March 16 meeting.
The next meeting occurred on March 17. At the
Union's request, Federal Mediator William McGonagle
appeared to help the parties resolve the issue of commit-
tee pay. The issue remained unresolved, and the Union
refused to discuss any further issues . Additionally, ac-
cording to the uncontradicted testimony of Lynch, at
either the March 16 or 17 meeting , he was informed that
Simmons, as well as Perkins, would be unavailable to ne-
gotiate during the week of March 20, and that, as a
result, "the union would be unable to meet." He further
testified that, " It was a combination of Mr. Simmons'
non-availability and the Company's lack of willingness to
pay the members of the committee for negotiating that
was given us the reasons why they would not meet the
following week." The next meeting was not held until
Tuesday, March 28 , 4 days prior to the expiration of the
contract.
On March 23, the Union took a strike vote. The result
was 37 in favor and 4 opposed, with 26 not voting.
Local President Harrison explained that such a vote is a
condition precedent for members of the Local to obtain
benefits from the International 's strike and lockout fund
should either of these events ultimately occur. By voting
early on in negotiations and forwarding the proper pa-
perwork to the International , the local members can re-
ceive their benefits on an expedited basis should they ul-
timately strike or be locked out. There is no other evi-
dence that the Union was making preparations for or
contemplating a strike or that a strike was imminent.
However, Respondent was informed of the strike vote
by the union negotiators at one of the subsequent negoti-
ating sessions.
According to the testimony of Lynch , at the March 28
meeting, the issue of committee pay was "resolved"
when Respondent "agreed to pay the committee. The
concern was that no meetings at all would be able to be
scheduled if something wasn 't done . In an effort to move
the negotiations along , the Company agreed to pay the
committee ." This testimony is somewhat contradicted by
the documentary evidence . Respondent's final offer,
dated March 31, provided: "The Company will pay up
to five (5) members of the Union Committee for time ac-
tually lost from work during negotiations , up to eight (8)
hours per day." Thus, it is clear that the committee pay
issue was resolved on March 28 by compromise and not
by complete abdication on the part of Respondent.
Be that as it may, the parties did begin to discuss sub-
stantive issues on March 28 . However, according to the
uncontradicted testimony of Lynch, the Union rejected
all the Respondent's proposals . Lynch further testified:
A. Sometime that week, either that day or the
next day, the company learned that the ratification
meeting was scheduled for 1:00 on March 31.
Typically, that meeting would be held at the end
of the day on March 31st. Certainly, with so few
days left to negotiate , it would seem that if the
union was serious about getting a contract that they
would want to schedule the meeting late in the day
on the 31st, so the better part of that day would be
available for negotiations.
Q. Okay. And, what was the company's position
at that time with respect to continuing to meet?
A. The company said that it was available to
meet around the clock, if necessary.
Q. And , what was the union 's position and who
said it?
A. Mr. Perkins indicated that he did not like to
meet past four o'clock because he got tired after
four o'clock.
At the commencement of the March 30 meeting, Re-
spondent informed the Union that, if no agreement was
reached, Respondent would lock out the employees com-
mencing April 1. According to Lynch, the meeting
"lasted a little longer that day," and the "Company
dropped all but the most important and most significant
proposals from its list ." Lynch also admitted that the
Union took "some" of its proposals "off the table."
The parties again met on March 31, at which time Re-
spondent presented its final offer to the Union. The pro-
posal contained the management-rights clause and insur-
ance containment clause that Respondent had originally
proposed. It additionally offered a wage increase of 32
cents per hour on ratification and 32 cents per hour on
NATIONAL GYPSUM CO. 599
April 1, 1984. It also offered a slight increase in pension
benefits . Lynch described the meeting as follows:
A. The company began making or continued
making economic offers . The union was moving
very slowly. It was taking positions on company
proposals that were kind of surprising.
It took the position on the management 's rights
clause that it would not agree to the management's
rights clause as proposed by the company because it
was a-well, because it was unacceptable to the
union.
It was startling in that the language is identical to
the language that Mr. Perkins and I-well, is identi-
cal to the language in a-from an agreement at
Mobile , Alabama, that Mr. Perkins and I were in-
volved in negotiating and as far as the company
was concerned the proposal did not change any
rights that the company already had, yet the union
viewed it as being something very unacceptable and
very unreasonable and it seemed, to me at least, that
the union was taking an unreasonable position on
the management's rights clause to try and hold off
reaching an agreement.
The meeting adjourned without settlement . A special
meeting of the union membership was then convened to
vote on Respondent 's final proposal. The proposal was
rejected by a 58-5 vote. According to documentary evi-
dence introduced by Respondent , a May 12, 1983 letter
under the signature of Local President Harrison, at the
same meeting , the membership "voted 100%" to contin-
ue working under the expired contract and continue to
negotiate a new contract with the Company. After the
rejection, on the evening of March 31, the parties again
met. Lynch described the meeting as follows:
A. The mediator, Mr. McGonagle , indicated that
he, obviously, wanted to head off a work stoppage,
if that could be done, and that it seemed to him that
the management's rights clause was one of the ob-
stacles to reach an agreement , and asked Mr. Per-
kins if we couldn 't go over the management's rights
clause word by word to see if there wasn't some
basis for an agreement there, indicated or took the
phrase that the company would retain the right to
hire from the management's rights clause and asked
Mr. Perkins if he had any problems with just put-
ting that one phrase in there.
Mr. Perkins indicated that he did, indicated,
again, to me that the international union did not
want a contract at Portsmouth.
Q. Now, let me understand . Was there any pro-
posals, other than the company 's final proposal,
which is in evidence, I assume it 's in evidence, that
were exchanged?
A. There was no proposal . The company did in-
dicate that its offer , its wage offer of thirty-two
cents for the first and second year was a final offer,
but that the company did not want to have a work
stoppage over a couple of cents and that if the
union had a counter-proposal that was within cents
of the company proposal, that the company would
pass that offer ' along to the principals at the Char-
lotte headquarters and see if we couldn 't get a con-
tract on that basis.
However, Lynch later admitted that by March 31, the
Union had reduced its original $1-per -hour increase
demand to 50 cents and had otherwise dropped all of the
IPC proposals . He also admitted , on cross-examination,
that the Union offered to continue working by extending
the contract after April 1 "on a day by day basis."'s The
contract contained a no-strike clause which forbade the
Union from striking in support of its own economic de-
mands or in sympathy with any other union. Respond-
ent, however , did not accept this offer, and made no
counteroffer to extend the contract for more than 1 day
at a time . No agreement was reached and the mediator
scheduled the next meeting for April 22.
The employees were locked out on April 1 and the
lockout remained in effect until August 1 , 1983, when
the patties signed a new collective -bargaining agreement.
The determination by Respondent to lock out the union-
represented employees and continue to operate was a
single decision based on recommendations from corpo-
rate headquarters . Prior to the lockout on April 1, Re-
spondent received no specific communications from cus-
tomers that, if its product was unavailable for a period of
time, they would permanently cease dealing with Re-
spondent."
From April 1 through 4, Respondent produced no
wallboard at Portsmouth , deciding to use this period to
perform major maintenance work on its machinery. 15
This task was performed by supervisory and nonunion
salaried personnel from the Portsmouth work force.' °
Once this work was completed , Respondent began to
produce wallboard at Portsmouth on April 5 or 6 utiliz-
ing the same nonunit Portsmouth work force."
About April 10, Respondent began to supplement the
above work force with supervisors and nonunion salaried
employees from other of Respondent 's facilities. Is A
system was established by which 15 to 20 of these
people, depending on availability, would be assigned to
Portsmouth in 2-week rotations . Thus, depending on the
availability of this outside personnel , Respondent was
is In his testimony, Perkins stated that the Union made an offer to
extend the contract but did not limit it to "a day at a time." However, I
credit Lynch and find that the offer was limited to a day-to-day basis.
Lynch's testimony is corroborated by the documentary evidence. In a
notice to the membership dated June 6, 1983, Local President Harrison
wrote, "The recommendation of the Union Negotiating Committee ...
is still to reject the Co's [sic] final contract offer and work the old con-
tract day to day."
14 During the lockout , the regular employees received moneys from
the strike-lockout fund maintained by the Gypsum Workers International
Union. There was no requirement that the employees picket in order to
receive this money and the payments were considerably less than the
wages the employees could have earned had they been working at their
regular jobs.
is There is no dispute that this is bargaining unit work which would
have been performed by the locked-out employees.
16 This group comprised approximately 19 people-16 supervisors and
3 nonunit employees.
17 There is likewise no dispute that the production of wallboard is bar-
gaming unit work which would have been performed by the lockout em-
ployees.
is The nonunit salaried employees were essentially office support staff.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally operating with a production and maintenance
work force of between 35 to 40 employees as opposed to
its normal 65.
Feith testified that the plant normally ran on a 7-day-a-
week, 24-hour-per-day schedule, utilizing three 8-hour
shifts. During the lockout, due to the reduction in size of
the work force , the plant operated on two 12-hour shifts.
At first, Respondent utilized a group to work from 7
a.m. to 7 p.m.; this group was then replaced by another
group that worked the remaining 12 hours . These groups
would work for a 2 -week period and then be replaced by
two new groups of replacements . There was apparently
no work on weekends . After June 1, the plant operated 7
days per week.
According to Feith, during the first 6 weeks of the
lockout, Respondent did not make any of its more
"exotic" or "odd sized" products . It limited its manufac-
ture to the most basic and simple types of wallboard.
This was basically due to the inexperience of the supervi-
sors and salaried personnel who were performing the
bargaining unit work . Feith did state, however, that the
products, which were produced, were manufactured at
the same rate as when the regular employees made them.
Feith also testified that during the first 2 months of the
lockout, Respondent lost approximately 10 production
days. He attributed this to unscheduled "down time"
which was due to a lack of preventive maintenance
which in turn was caused by the lack of experience of
the replacements who were doing maintenance work.
By mid-May, Respondent decided to replace the su-
pervisory and salaried personnel it was using to operate
the plant with temporary employees that it would hire
from the Portsmouth area . These employees commenced
work at Portsmouth about May 24 . From that point on,
Respondent used no nonunion salaried employees to do
any bargaining unit work . The supervisory personnel
from Portsmouth and other Respondent facilities contin-
ued to do some bargaining unit work , but acted mainly
in a training capacity. By July, the bargaining unit work
was being performed only by the temporary outside
hires.
Lynch and Feith testified that Respondent's decision
to replace the supervisory and salaried personnel with
temporary outside hires involved various considerations:
(1) The 12-hour-per-day shift schedules during a 2-month
period had caused the original replacements great strain.
(2) Due to financial constraints, during the past 2 years,
Respondent had reduced the number of nonunion sala-
ried personnel it employed, thus reducing the pool from
which replacements could be drawn. Additionally, vaca-
tion time was approaching , which would further reduce
the pool . Finally , Respondent's Westwego, Louisiana
plant was in negotiations. Should that plant be struck, it
would also need replacements which it would draw from
this same source of employees.19 (3) Respondent had
'9 The production employees at Westwego are represented by a local
of the OCAW Its collective-bargaining agreement had expired on Febru-
ary 1, 1983 The employees were permitted to work without a contract.
On May 23, the day prior to the actual hire of the outside replacements
at Portsmouth , the Westwego employees struck
been paying airfare and per diem to the personnel it had
been bringing in from its other facilities . Because Ports-
mouth is a resort city, the cost of accommodations rises
dramatically after Memorial Day. Thus Respondent was
facing increasing per diem costs and the hiring of local
replacements would obviate the need to pay per diem.
On June 6, 1983, Respondent signed a contractual
agreement with the Voss Company for the repair and
maintenance of its production equipment . By its terms,
the contract was to terminate on the settlement of Re-
spondent's labor dispute with the Union. Feith testified
that a portion of the tasks performed by Voss involved
bargaining unit work . However, he also stated that some
of the work assigned to it involved "work that would
have been subcontracted out anyway."
Meanwhile, Respondent and the Union continued to
negotiate . On April 22 the parties met without reaching
an agreement. Respondent continued to insist on the in-
clusion of its management-rights clause in the contract.zo
The next meeting was set for May 17. At that meeting,
Feith announced Respondent 's plans to hire outside tem-
porary replacements instead of continuing to operate
with supervisory and nonunion employees. Union negoti-
ator and employee Sandra Jones asked Feith if Respond-
ent could do that "even though we are willing to come
back to work." Feith responded in the affirmative. The
parties continued at impasse . The Union reduced its
demand for a wage increase from 50 cents to 49-1/2
cents . Respondent's position remained the same.
On Friday, July 29, 1983, Respondent and the Union
reached agreement . The replacements were dismissed,
the Voss contract was terminated , and on Monday
August 1 , 1983, the production and maintenance employ-
ees returned to work.
There is no dispute that all personnel who performed
bargaining unit work during the lockout were temporary
replacements and that they were expected to cease to do
such work and be dismissed on the termination of the
labor dispute between the Union and Respondent and
that this fact was known to the locked-out employees.
The union-represented employees engaged in no picket-
ing activity and there was no evidence of sabotage
during the 1983 negotiations or those of prior years. It is
also clear that both parties continued to negotiate during
the lockout in an attempt to reach a collective-bargaining
agreement . No allegations of unfair labor practices were
filed with respect to the bargaining positions or tactics of
either the Union or Respondent.
20 According to Lynch, the substance of the negotiations concerning
the management-rights clause were as follows
In official positions, nothing happened to it The company in off
the record proposals indicated that it could-if we had an agreement
that the company had all these rights anyway , that there might be
some room for flexibility on that , but there was no change in official
positions
The Union did not alter its position.
NATIONAL GYPSUM CO.
B. Discussion and Analysis81
1. The applicable legal principles
The Supreme Court considered the issue of lockouts
and the use of temporary replacements in American
Ship2 2 and Brown Food Store s which were decided on
the same day in 1965 . In American Ship, the Court held
that, absent antiunion motivation , an employer may law-
fully lock out employees after impasse in negotiations. In
that case, the Court expressly left open resolution of the
issue whether continued operation of a plant with tempo-
rary replacements violated the Act. 380 U.S. at 308 fn. 8.
That issue was decided, to a certain extent, on the par-
ticular set of facts presented in Brown Food. Brown in-
volved five employers who operated six retail food
stores and dealt with the union in a multiemployer bar-
gaining unit. After its collective-bargaining agreement
expired , the union struck one of the stores . Thereafter,
the remaining stores-locked out their employees and con-
tinued to operate with temporary replacements, includ-
ing management personnel and outside hires . The em-
ployers told the union that a strike against one of them
would be considered a strike against all and they also
told the union that their continued operation with tempo-
rary replacements would end when the so-called whip-
saw strike ended . The Supreme Court found that the
lockouts and subsequent operation of the stores did not
violate the Act.
The Court rejected the notion that "in the setting of
this whipsaw strike" and the continued operation of the
struck employer, the lockout and continued operation by
the remaining employers with the use of temporary re-
placements was "inherently destructive of employee
rights." (380 U.S. at 282-283). Such conduct would be
unlawful despite any asserted business purpose even if
undertaken in good faith . See NLRB v. Erie Resistor
Corp., 373 U.S. 221 (1963) (grant of superseniority to
strike replacements), and NLRB v. Burnup & Sims, Inc.,
379 U.S. 21 (1964) (discharge of innocent strikers despite
mistaken but good-faith belief that they engaged in mis-
conduct). Rather, the Court held that, although "the use
of temporary non-union personnel in preference to the
locked out union members is discriminatory," any "result-
ing tendency to discourage union membership is com-
21 Respondent makes a threshold assertion that the General Counsel is
precluded from litigating this case because, on a prior occasion, in May
1979 , the then General Counsel declined to issue a complaint concerning
a prior utilization by Respondent of temporary replacements during a
lockout at its Mobile , Alabama plant . Respondent 's position is without
merit. There is, of course, no competent evidence about the factual cir-
cumstances behind that use of temporary replacements. Thus , there is no
way to determine whether the facts in that case are parallel to those in
this case, although it appears from this record that, in 1979, coordinated
bargaining-the touchstone of Respondent 's defense-was a more signifi-
cant factor than at present. More importantly, the General Counsel as
prosecutor does not bind the Board as adjudicator of unfair labor prac-
tices . The General Counsel has unreviewable discretion to refuse to issue
an unfair labor practice complaint . Vaca v. Sipes, 386 U .S. 171 (1967).
Thus, even in cases involving identical conduct by the same parties, the
Board is not bound by the decision of a General Counsel not to issue a'
complaint on a prior occasion . See Union Mining Ca of Allegany County,
264 NLRB 275, 276 and fn . 4 (1982); Walter B. Cooke. Inc., 262 NLRB
626, 636 (1982).
$$ American Ship Building Ca v. NLRB, 380 U.S. 300 (1965).
as NLRB v. Brown Food Store, 380 U.S. 278 (1965).
601
paratively remote" and the use of temporary personnel
was a "measure reasonably adapted to the effectuation of
a legitimate business end." (Emphasis added , 380 U.S. at
288.)
In determining that the acknowledged discrimination
in Brown had a "comparatively remote" effect on em-
ployee rights rather than an "inherently destructive"
effect, the Court noted that the replacement employees
were used for the duration of the labor dispute only and
thus the displaced employees could not have looked on
the replacements as threatening their jobs . Earlier the
Court had rejected the argument that the regular em-
ployees were willing to work at the employers' terms by
stating that it was more likely that such willingness was
due to their desire to further the objectives of the whip-
saw strike. (380 U. S. at 285 .) The Court also noted that
the employees could end the lockout simply by agreeing
to the employers ' terms which were "still better than
under the old contract" and that a union -security provi-
sion was to be carried over into the new contract.
The Court then balanced the resulting impact on em-
ployee rights against what it viewed as a measure reason-
ably adapted to the achievement of a legitimate end-the
defensive measure of remaining open and resisting a
whipsaw strike in order to "preserv[e] the integrity of
the multiemployer bargaining unit." (380 U.S. at 289.) It
concluded that the employers' business reason justified
the actions taken.
Having concluded that there existed a "substantial and
legitimate business" reason for the employers' actions,
the Court then determined that it was necessary for the
General Counsel to prove an improper motive. Its analy-
sis of the facts in that case revealed no such motive.
Indeed, the Court found positive evidence of the em-
ployers' "good faith ." (380 U.S. at 290.)
The Supreme Court had occasion thereafter, in NLRB
v. Great Dane Trailers, 388 U . S. 26 (1967), to reexamine
the doctrine discussed in Brown, although in a situation
not involving a lockout . The Court stated (388 U.S. at
34):
From this review of our recent decisions , several
principles of controlling importance here can be dis-
tilled . First, if it can reasonable [sic] be concluded
that the employer's discriminatory conduct was "in-
herently destructive" of important employee rights,
no proof of an antiunion motivation is needed and
the Board can find an unfair labor practice even if
the employer introduces evidence that the conduct
was motivated by business considerations. Second,
if the adverse effect of the discriminatory conduct
on employee rights is "comparatively slight," an an-
tiunion motivation must be proved to sustain the
charge if the employer has come forward with evi-
dence of legitimate and substantial business justifica-
tions for the conduct. Thus, in either situation, once
it has been proved that the employer engaged in
discriminatory conduct which could have adversely
affected employee rights to some extent, the burden
is upon the employer to establish that he was moti-
vated by legitimate objectives since proof of moti-
vation is most accessible to him.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See also NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967).
The first case decided by the Board , after Brown and
Great Dane, dealing with the use of temporary replace-
ments during a lockout was Oshkosh Ready-Mix Co., 179
NLRB 350 (1969), enfd . 440 F .2d 562 (7th Cir. 1971),
cert. denied 404 U . S. 858 (1971). That case involved
three separate employers in the ready -mix concrete busi-
ness who had three separate collective-bargaining agree-
ments with the same union , all of which expired on the
same date . The three employers did not compose a multi-
employer bargaining unit . When the contracts expired
without renewal , the employers locked out their employ-
ees and continued to operate using both management
personnel and temporary outside hires . There was no
evidence that any of the employers had been struck at
the time of the lockouts or that a strike was imminent.
The employers admitted that they locked out employees
and used temporary replacements to continue operating
in order to force the union to agree to their proposed
bargaining agreements . The employers also desired to
settle the contract dispute before their busy season to
preclude the possibility of a strike at that time and to
protect their share of the market.
The Board found a violation . Analyzing the case in
terms of the Supreme Court's Brown and Great Dane de-
cisions, the Board found that the employers engaged in
discriminatory conduct which "affected employee rights
to some extent" (179 NLRB at 356), and thus the burden
shifted to the employers to justify their conduct. As the
Board stated (179 NLRB at 358):
[W]here the employer, as here, locks out his em-
ployees with the purpose of forcing them to accede
to his terms and at the same time is able to demon-
strate, by continued operation through other em-
ployees, that resistance to the employer's terms,
whatever they might be, is unlikely of success, if
not hopeless, and reemployment can be obtained
only by concession to the employer 's terms, the
necessary , if not the almost inevitable , tendency of
the employer 's conduct would be capitulation. Thus
if the employer not only may decide if and when
his employees shall be deprived of work, but at the
same time replace those employees and continue in
operation , making capitulation rather than bargain-
ing the option presented , such action might well be
said to have the tendency , which the Court found
lacking in American Ship, to "necessarily destroy
the unions' capacity for effective and responsible
representation" and be "demonstrably so destructive
of collective bargaining" (380 U .S. at 309) as to
carry its own indicia of illegal motivation in viola-
tion of the Act. Indeed, the employer 's capacity for
achieving this result might well be limited only by
the available labor market.
[A]ssuming that the Respondents here were at-
tempting to secure their aims in collective bargain-
ing by discrimination in employment inflicting a
maximum amount of economic injury upon the em-
ployees, which seems beyond question , the determi-
nation of whether these actions violated the Act
does not depend on whether Respondents were suc-
cessful . Specific proof of the successful effect of the
Respondents' discrimination is not required. "It is
common experience that the desire of employees"
with respect to unionization or collective activity
"is raised or lowered by the advantages," or disad-
vantages , "thought to be attained by such action."
And the Board may reasonably infer such effect
from the discrimination . See The Radio Officers'
Union v N.L.R.B., 347 U.S. 17, 51 (1954).
The Board then considered the employers ' purpose in
replacing their employees . It distinguished the situation
in Brown because the latter case involved a defensive
measure utilized to preserve the multiemployer group in
the face of a whipsaw strike . It also observed that there
was no evidence of any affirmative or overt act on the
union's part which compelled the employers ' conduct
and the employers asserted no special situation, beyond
their desire to "continue normal business operations," in
justification of their conduct. Thus, there was no indica-
tion that their situation "differed" from " that in previous
years" or that they faced "serious or unusual competitive
threats" from other firms. Nor did the Board consider
persuasive the argument that the contracts had expired
and thus the union was free to strike . Accordingly, the
Board concluded that the injury to employee rights
overrode the business justification offered in defense of
such injury . Id. at 359.24
It is important to note that the Board 's analysis in
Inland as well as that of the Supreme Court in Brown,
Erie Resistor, and Great Dane does not call for a specific
proof of motivation . Rather the analysis deals with
whether the acknowledged impact on employee rights
was more significant, on balance , than the employer's
business justification . This is true whether the impact on
employee rights is "inherently destructive" or less so; in
the former instance , no business justification is consid-
ered overriding; in the latter, the Board must consider
whether the business justification does indeed outweigh
the injury to employee rights. Only at this point in the
analysis-if the Board finds that a substantial and justifi-
able business reason outweighs the interference with em-
ployee rights-is there an inquiry into improper motive,
which the General Counsel must prove by independent
evidence . This contrasts with those situations, particular-
ly discharge cases , where, unlike in Brown , the discrimi-
nation is not apparent on the face of the action so that
the General Counsel must prove the discrimination and
does so by showing unlawful motive. In these cases, the
24 The Board 's Order was enforced by the U.S. Court of Appeals for
the Seventh Circuit at 440 F 2d 562 (1971) The court stressed the offen-
sive nature of the employers ' action (id at 564 In 7) and distinguished
the case from Brown. It found such action "inherently destructive" of em-
ployee rights and a per se violation of the Act (Id at 564-565.) It also
found that , even if the employers ' action amounted to "comparatively
slight harm" to the employees' protected rights under the second Brown
test, the employers' action was unlawful According to the court , the ap-
proach of the busy season , in and of itself, simply does not amount to a
"substantial business reason " for the lockout and subsequent operation. It
merely evidences a preference by the employers for a confrontation at a
more desirable time (Id at 565 )
NATIONAL GYPSUM CO. 603
trier of fact does not consider the employer's business
justification until or unless the General Counsel has made
a prima facie showing of unlawful motive . See NLRB v.
Transportation Management Corp ., 462 U.S. 393 (1983).
The next Board case to consider the issue was Ottawa
Silica Co., 197 NLRB 449 (1972), affd. mem . 482 F.2d
945 (6th Cir. 1973). In that case the employer, who oper-
ated several plants, had a contract with the union cover-
ing its Rockwood, Michigan plant which was set to
expire on May 31 . During the course of negotiations, the
union threatened to strike on several occasions, including
one time when it informed the employer that , if a strike
at Rockwood became necessary, it would strike at all its
facilities . On May 29 the employer asked the union to
extend the contract, which contained a no-strike clause,
pending the settlement of a new agreement . The union
declined, agreeing only to extend the contract on a day-
to-day basis . When the employer made its final offer im-
mediately prior to expiration of the contract , union offi-
cials informed the employer that they were going to rec-
ommend to the membership that it reject the offer.
Meanwhile , during the course of negotiations, the em-
ployer had been contacted by one of its customers ex-
pressing concern about the possibility of receiving serv-
ice if there was a strike . The contract expired with the
parties at impasse . The employer locked out the employ-
ees and temporarily replaced them with supervisory and
office personnel from Rockwood as well as from another
of its plants.
The Board found no violation in a 2-1-2 decision.
Members Kennedy and Penello , in their opinion, stated
that they would overrule Inland Trucking and concluded
that the use of temporary replacements during an other-
wise lawful lockout has only a comparatively slight
impact on employee rights and thus , absent unlawful mo-
tivation, is a permissible tool for employers . Chairman
Miller concurred in the result , but disavowed the over-
ruling of Oshkosh : "I do not intend my conclusions in
this case to be understood as sanctioning the utilization
of temporary replacements, particularly when hired from
the outside, in all permissible lockout situations." Id. at
451. He instead employed the Brown balancing test and
found no violation based on the following factors: (1) the
employer used only nonunit personnel as opposed to out-
side hires; (2) the union refused to provide any assur-
ances of continued operation and there was therefore
reason to believe a strike was imminent ; and (3) there
was "some evidence , although perhaps not totally con-
clusive evidence, of a bona fide business justification."
(Ibid.) Members Fanning and Jenkins dissented. Under
their reading of Inland Trucking, they would fmd that all
lockouts with subsequent temporary replacements are
per se unlawful and, in any event, even under the second
"comparatively slight" test, they would fmd that the em-
ployer advanced "no legitimate business reason" for con-
tinued operation during the lockout in this case.
The next case involving the issue was Inter Collegiate
Press, 199 NLRB 177 (1972), affd. 486 F.2d 837 (8th Cir.
1973), cert. denied 406 U .S. 938 (1974). The employer, a
firm which printed school yearbooks and graduation an-
nouncements had its peak season from February through
June when it did 66 percent of its yearbook volume and
98 percent of its announcement volume . Its collective-
bargaining agreement with the union was set to expire on
August 31 , 1970. Even though negotiations commenced
in July, agreement was not reached by the expiration
date of the contract . The parties continued to negotiate
without economic action . On October 16, with the par-
ties at impasse, the employer locked out the employees
and operated with temporary replacements . The employ-
er offered various reasons for its decision. The busy
season was approaching , During the prior busy season it
had been struck under similar circumstances by another
union. It had been unable to complete its orders and had
lost customers . Those customers who had not abandoned
the employer made it clear that they would , if it hap-
pened again . The employer believed the union was pro-
longing negotiations into the busy season , when a strike
or a threat of strike would be of increased strength. On
November 9 the employer offered to end the lockout if
the union promised it would not strike during the busy
season. The union refused to give such assurances. On
November 23 the employer began hiring replacements.
The employer submitted that it was necessary to begin
hiring replacements in November even though the busy
season did not begin until February because it took 2
months to train them.
The Board again dismissed the complaint in a 2-1-2
decision. Members Kennedy and Penello , citing their
opinion in Ottawa Silica, simply found that there can be
no violation in hiring temporary replacements after a
lawful lockout , absent a showing of animus. Members
Jenkins and Fanning also took the same position they
had in Ottawa Silica.
Chairman Miller concurred in the result , but found
that Brown mandated a balancing of interests test in each
case by which the Board must carefully weigh all the
circumstances in order to determine the extent to which
use of replacements has a tendency to discourage union
membership as opposed to the extent to which the em-
ployer's decision was occasioned by "legitimate and sub-
stantial business reasons." In this regard , he stated that
he did not read Oshkosh as holding that all lockouts with
replacements are per se unlawful and noted that, in his
opinion , Oshkosh was decided in accordance with Brown,
on its particular facts . Id. 199 NLRB at 178:
If I understand the reasoning of the majority
opinion of the Supreme Court in the Brown case,
therefore, it is incumbent upon this Board in each
case involving the use of temporary replacements
during an otherwise legitimate lockout to: (1)
Weigh carefully all of the circumstances in order to
determine the extent to which the use of such re-
placements has a tendency to discourage union
membership , and (2) balance against our conclusions
in that regard the extent to which the use of such
replacements was supported by a legitimate and sig-
nificant business justification or, on the other hand,
the extent to which antiunion animus rather than
bona fide business considerations motivated the em-
ployer's decision to utilize replacements.
It was for these reasons that in my separate con-
curring opinion in the Ottawa Silica case I found no
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation under the facts of that case, but at the same
time disclaimed what appeared to be the view of
two of my colleagues that the utilization of tempo-
rary replacements would be justified in all other-
wise permissible lockout situations.
While there is some language in the opinion of
the Court of Appeals for the Seventh Circuit in
Inland Trucking Co. d/b/a Oshkosh Ready Mix Co.,
440 F .2d 562 (1971), cert. denied 404 U.S. 858
(1971), which might be read as outlawing the use of
temporary replacements as a per se interference with
protected employees' rights, such a holding would
be directly contrary to Brown . I therefore read the
Inland opinion to mean only that the use of such re-
placements under the circumstances there at bar con-
stituted , in the court's view , such an improper inter-
ference . At any rate, in the latter part of the court's
opinion in Inland, it clearly engaged in a balancing
analysis and there concluded , as had the Board [em-
phasis added] , that there was insufficient evidence of
legitimate and substantial business justifiction for the
respondent's insistence upon continued operation
during what the Court there referred to as an "of-
fensive lockout."
Employing the balancing test, Chairman Miller found
no violation. He noted that the infringement on union
rights was "comparatively slight" for the following rea-
sons: (1) the employer made clear that the replacements
were temporary and offered to abandon the lockout as
well as the use of replacements if the union gave assur-
ances that it would not strike during the busy season; (2)
as in Brown, the employer's final offer was greater than
the expiring collective-bargaining agreement and, thus,
the employees could end the lockout by returning to
work under improved conditions; and (3) the proposed
contract contained a union-security clause. Chairman
Miller also found that the employer's action was occa-
sioned by a legitimate business justification because the
employer's sole desire was to maintain its competitive
position, which it felt would be seriously jeopardized by
a strike during a crucial period for a second consecutive
year and because there was evidence that the employer
would not use replacements again.25
Thereafter the Board dealt with a number of cases in-
volving the same issue and in none of the cases did it
find a violation. The positions of the Board Members re-
mained as expressed in Ottawa Silica and Chairman Mil-
ler's balancing test provided the rationale for his concur-
rence and his vote provided the majority in each case. In
these cases, the administrative law judge generally fol-
lowed Chairman Miller's balancing test. See Ozark Steel
Fabricators, 199 NLRB 847 (1972) (evidence of union
strike threat and defensive nature of employer's action in
view of a potential loss of business); WGN of Colorado,
199 NLRB 1053 (1972) (same); Ralston Purina Co., 204
25 The United States Court of Appeals for the Eighth Circuit en-
forced , basically adopting the balancing approach set forth in Chairman
Miller's concurrence It did, however, disagree with the Seventh Circuit's
decision in Oshkosh insofar as the latter seemed to imply that the use of
temporary replacements during a lockout amounted to a per se violation
of the Act
NLRB 366 (1973) (same); Sargent-Welch Scientific Co.,
208 NLRB 811 (1974) (union refused to give a no-strike
commitment and employer was in the middle of its busy
season).26
The final and most recent case in this line was Johns-
Manville Products Corp., 223 NLRB 1317 (1976), enf.
denied on other grounds 557 F.2d 1126 (5th Cir. 1977),
cert. denied 436 U.S. 956 (1978). In this case, then Chair-
man Murphy joined Member Penello to find a violation,
over Member Jenkins' dissent. The employer continued
to operate during negotiations for a new agreement but
experienced numerous incidents of sabotage and produc-
tion slowdowns which the union refused to help allevi-
ate. Murphy and Penello found a violation "for the same
reasons fully set forth in our decision in Ottawa Silica."
Respondent asserts that, in Johns-Manville, the Board
abandoned Chairman Miller's balancing approach. I
cannot agree. Not only did the Board specifically refer
to Ottawa Silica, whose validity is based on Chairman
Miller's swing vote and concurrence, but it also referred
to WGN of Colorado, supra, where Chairman Miller
again concurred with a short discussion of his views that
the Brown decision requires a balancing of competing in-
terests and that "the defensive nature of the lockout here
is one of several relevant factors weighing in favor of the
use of replacements in the particular circumstances of
this case." (199 NLRB 1053 at fn. 2.) The Board did not
specifically overrule Oshkosh Ready-Mix Co., nor did it
eschew the balancing test which had been consistently
utilized by Chairman Miller and is mandated by the Su-
preme Court's Brown decision. Rather, the Board under-
took an analysis of the circumstances in concluding that
the impact on employee rights was slight and that Re-
spondent's concern about sabotage satisfied its burden to
show legitimate and substantial business reasons. The
Board also found no antiunion motive for the employer's
action. (223 NLRB at 1318.)
The General Counsel and Respondent submit distinct
standards to be used in determining the propriety of Re-
spondent's conduct. The General Counsel contends,
based on her reading of Oshkosh Ready-Mix Co., 179
NLRB 350 (1969), that a lockout followed by operation
with temporary personnel constitutes a per se violation
of the Act. Respondent contends that the proper stand-
ard is that expressed by Members Kennedy and Penello
in their series of opinions following Oshkosh-that a
lockout and subsequent operation is lawful absent a
showing of union animus. In the alternative, both submit
that the balancing test espoused by Chairman Miller in
his series of concurring opinions following Oshkosh is the
proper approach.
I believe the alternative view of the parties is the ap-
propriate one and conclude that Chairman Miller's bal-
ancing test is to be applied in this case.
25 In Hess Oil Virgin Islands Corp, 205 NLRB 23 (1974), the complaint
did not allege a violation based on the employer's use of temporary re-
placements dung a lockout and thus Chairman Miller, who again pro-
vided the swing vote, decided the case without reaching the issue. How-
ever, in the alternative, he found that, since the employees actually
struck, the employer's use of replacements after the end of the strike was
no different than its use during the strike Moreover, the trial judge had
noted the employer's reasonably based fear of sabotage
i
NATIONAL GYPSUM CO.
In the series of cases beginning with Oshkosh and
ending with Johns-Manville, the Board has tended to blur
the distinctions in the three -step analysis of the Supreme
Court in the Brown case . For example , it is unclear
whether in Oshkosh the Board was saying that the use of
temporary replacements in a nonwhipsaw strike , nonmul-
tiemployer, nonoffensive lockout situation was in the "in-
herently destructive" or in the "comparatively slight"
category. At the other end of the spectrum , in Johns-
Manville , the Board mixed the various components of the
analysis in a way which might well confuse a reader of
that decision . Nevertheless, Chairman Miller's view most
faithfully adheres to the Brown analysis. In all his deci-
sions, he found no violation but he refused to overrule
Oshkosh, in which a violation was found , and it is clear
that he concluded that that case was rightly decided. Be-
cause his constituted the necessary vote for a majority in
each of the cases in which he participated and because
Johns-Manville necessarily relied on his position, I view
Chairman Miller's position as the applicable Board law.
Chairman Miller 's position requires , as does the Brown
decision, a three-step analysis. First, he had to distinguish
between "inherently destructive" and "comparatively
slight" impacts on employee rights . Some of the factors
he utilized were those utilized for the same purpose by
the Brown Court: whether the replacements were known
to be temporary; whether the employer's proposals were
better than those in the old contract and whether there
was a union-security clause in the employer's proposals.
He also added a new factor-whether the employer used
only new hires or restricted its continued operation to
existing nonunit employees . Thus, in all cases in which
Chairman Miller participated and in Johns-Manville
which basically rested on his swing vote analysis in
Ottawa Silica, the Board found that there was insufficient
evidence from which to infer that the employer's con-
duct fell in the "inherently destructive" category. How-
ever, the Board nevertheless found that the use of tem-
porary replacements during a lockout was discrimination
whose tendency to discourage union membership was,
although comparatively remote, sufficiently adverse so as
to require an inquiry into the employer's business justifi-
cation. This is clear not only from Chairman Miller's
analysis in each of the cases in which he participated and
provided the swing vote, but also because neither he nor
the Board ever overruled Oshkosh and because he at-
tempted to distinguish the case . Oshkosh was the only
case in which a violation was found and since that case
stands as rightly decided , the Board must recognize that,
in some circumstances , the use of temporary replace-
ments during a lockout is unlawful without regard to un-
lawful motive.
This position is dictated by Supreme Court precedent.
The Brown decision compels the finding that the use of
temporary replacements instead of union-represented em-
ployees during a lockout "is discriminatory" (380 U.S. at
288). This action , of itself, has some adverse impact on
employee rights and therefore requires an inquiry into
the employer's business justification. (Ibid.) In these cir-
cumstances, there is no basis for the contention that the
use of temporary replacements during a lockout is
605
always lawful without regard to an employer 's business
justification.
Thus, in the post-Brown lockout cases, Chairman
Miller and the Board addressed the next step in the anal-
ysis : whether the employer 's business justification was le-
gitimate and substantial . In all the cases, the following
facts carried the day for the employers : A strike was
either implemented, imminent , or threatened and the em-
ployers had a compelling need to continue operating as a
"defensive" measure to counter the strike threat or some
other aggressive action by union -represented employees.
Because in every case except Oshkosh the Board accept-
ed the employer's business justification, there was a need,
as in the Brown decision, to move to the third and final
step of the analysis : whether the General Counsel proved
unlawful motive by independent evidence . In all such
cases, the Board found no unlawful motive.
2. An analysis of the instant case
I am bound by precedent to engage in the same analy-
sis. I turn first to the question whether the conduct of
Respondent was inherently destructive of employee
rights so as to warrant a finding of a violation without
regard to any business justification offered by Respond-
ent. Although the matter is not free from doubt, I find
that this case does not fall within the "inherently de-
structive" category.
It is true that the Brown decision which found the con-
duct in that case not to fall in the inherently destructive
category is distinguishable from the instant case . The em-
ployees had engaged in a whipsaw strike . They deliber-
ately withheld their labor in order to cause the employ-
ers to capitulate to their terms . They were not innocent
pawns who were prevented by an employer from work-
ing because that employer wished to impose its contract
proposals on them . Thus, the Brown decision does not
preclude a finding in this case that the employer's con-
duct is "inherently destructive" of employee rights.
However, applying the Brown criteria and Chairman
Miller's analysis to the question of whether the impact of
Respondent's action was in the "inherently destructive"
or the "comparatively slight" category, I find that this
case falls into the latter category. The regular employees
knew that the employees replacing them were temporary
and that they could return to work by accepting Re-
spondent's terms . There was also apparently no risk that
the union-security clause in the old contract would not
carry over into the new contract. On the other hand, the
Respondent here utilized new hires and its proposals
were regressive to some extent . As to the latter point, it
appears that Respondent proposed a more stringent man-
agement-rights clause and an insurance containment pro-
vision which necessarily increased the cost of medical
care to employees . Moreover, Respondent's resistance to
paying employee members of the negotiating committee,
as it had in the past, left only 3 or 4 days of bargaining
over substantive issues before Respondent's target date
for locking out employees . In my view, consideration of
these factors, while presenting a more significant interfer-
ence with employee rights than was present in the cases
which followed Oskash , does not require that this case be
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed into the "inherently destructive" category. They
do not present a difference in kind from those factors
which were present in Brown or approach the severity of
the conduct condemned in Erie Resistor or Burnup do
Sims.
With respect to the alleged "regressive" bargaining
proposals of the Respondent , the General Counsel al-
leges that Respondent's proposed management rights,
zipper, and no-strike clauses would not only restrict the
Union's "right to bargain over virtually every phase of
the employees ' terms and conditions of employment but
also its rights to either grieve or strike over these mat-
ters." The General Counsel then characterizes these pro-
posals as "evidence of bad faith bargaining ." It seems
likely to me that if, indeed , an employer were engaged in
bad-faith bargaining , this fact would go a long way
toward showing that its contemporaneous use of tempo-
rary replacements during a lockout was inherently de-
structive of employee rights . However, it is significant
that, in this case, the General Counsel 's complaint did
not allege bad-faith bargaining either as a separate viola-
tion or as a part and parcel of the use of temporary re-
placements . If bad-faith bargaining is to be an element of
the violation , it must be separately alleged as a violation
of Section 8(a)(5) and fully tried and proven as an ingre-
dient of Respondent 's conduct in using temporary re-
placements during a lockout . To require less would not
only raise questions of due process but would also invite
an endless and elusive inquiry into relative bargaining
positions without providing an adequate standard by
which to gauge a party's conduct.21
The General Counsel also seems to argue that the in-
stant case falls into the "inherently destructive" category
because it is indistinguishable from Oshkosh which can be
read to have been in that category. I disagree with the
General Counsel's argument that the Oshkosh case falls
within the "inherently destructive" category. In this
regard I must follow the position of Chairman Miller
who, while agreeing with the result in Oshkosh , never-
theless did not read Oshkosh as being in that category.
Instead, he believed that Oshkosh properly applied the
Brown balancing test . (Inter Collegiate Press, 199 NLRB
177 at 179 (1972)). I agree . In my view , it is essential to
the Oshkosh analysis that the employers in that case
faced no serious fear of a strike and engaged in offensive
action . Thus, the lack of a legitimate and substantial busi-
ness justification was a key element in the Board's find-
ing of a violation . This is supported by the fact that nei-
ther Chairman Miller nor the Board ever overruled Osh-
kosh, but they consistently utilized analyses which dwelt
at some length on the employer's business justification.
However, I do agree with the General Counsel that
this case is indistinguishable from Oshkosh with regard to
27 The General Counsel also cites evidence that some regular employ-
ees and nonunit personnel clashed after the former returned to work. I
am doubtful that this evidence has any bearing on the issue . Lingering
animosity among employees over the use of temporary replacements does
not, at least at the minimal level presented in this record , add anything to
the resolution of whether use of temporary replacements during a lock-
out is inherently destructive of Sec. 7 rights . Such animosity must affect
collective bargaining in some meaningful way before it is even considered
relevant to the issue
the impact of the lockout and use of temporary replace-
ments on employee rights . Initially, there is no doubt
that the Respondent 's conduct herein has some adverse
impact on employee rights , without regard to motive. As
the Supreme Court specifically held, the use of tempo-
rary replacements instead of union-represented employ-
ees during a lockout "is discriminatory." (380 U.S. at
288.) Thus, it is revealing that Chairman Miller believed
that Oshkosh was properly decided under the Brown
"comparatively slight" analysis . He obviously felt that
the factors he relied on in those cases in which no viola-
tion was found , including the employer 's business justifi-
cation , distinguished those cases from Oshkosh when the
infringement on employee rights outweighed the employ-
ers' business justification . Accordingly, this case presents
at least the same degree of discrimination and impact on
employee rights which was present in Oshkosh . Although
this is not sufficient to move either case into the inher-
ently destructive category , it does place both cases into
the second category of cases which requires an inquiry
into business justifications.
Having determined that this case falls within the
second "comparatively slight" category under the Brown
analysis, of necessity , I must also determine whether the
Respondent's business justification was substantial and le-
gitimate enough to justify its actions. I now turn to an
analysis of that issue.
In my view , the most significant factor in the balance
utilized by Chairman Miller, and the one that has been
dispositive in all of the relevant cases, is whether the em-
ployer's use of temporary replacements was defensive or
not. See particularly , Chairman Miller 's views in Ozark
Steel Fabricators, 199 NLRB 847 (1972), and WGN of
Colorado, 199 NLRB 1053 (1972). This also is consistent
with the Supreme Court's analysis in Brown . The em-
ployers there were defending against a whipsaw strike in
an effort to preserve the multiemployer unit . An analysis
of all the Board cases where a violation was not found
demonstrates that the employers ' actions are taken in re-
sponse to a reasonably based apprehension of an immi-
nent strike or some other aggressive act by the union or
employees . In addition, the employers' defensive action
is justified by a compelling business reason. In some
cases, the employer hopes to head off the possibility of a
strike at a time when it would involve serious financial
hardships . In others , the employer's continued operation
is necessary for another compelling reason, such as acts
of sabotage by regular employees . But in none of the
cases is the employer 's purpose for continued operation
without its regular employees solely to force capitulation
to the employer's bargaining terms.
The following cases all involve the reasonably based
fear of an imminent strike which would have caused fi-
nancial hardships-an essentially defensive posture justi-
fying continued operation without union-represented em-
ployees . In Inter Collegiate, supra, the employer had been
struck by a different union during its busy season the
previous year causing a loss of customers. The employer
offered to abandon the lockout if the union promised not
to strike during the approaching busy season but the
union refused. In Ozark Steel, the union threatened a
NATIONAL GYPSUM CO. 607
strike and the employer's busy season was approaching.
The employer's contract contained penalty clauses for
late delivery. In WGN, the union threatened a strike and
sent notice of intent to strike to a state agency . The em-
ployer's media event of the year-a televised basketball
tournament-was approaching . In Ralston-Purina, the
employer had experienced three wildcat strikes the year
before over the same issues which were the subject of
the current contract . The union threatened to strike but
the employer preferred a confrontation at a time more
convenient to it. In Ottawa Silica, the employer had been
threatened with a strike on several occasions during ne-
gotiations and the union refused to give any assurances
that it would not strike . One of its customers had ex-
pressed concern about receiving deliveries during a
strike. In Sargent-Welch, the employer had been struck
during negotiations the year before and the union refused
to give assurances that it would not strike again . The em-
ployer was in the midst of its busy season.
The other two cases , the Brown case and Johns-Man-
ville, are likewise defensive-type cases. In Brown, there
was an actual strike and the employer 's conduct was in
response to a "whipsaw" strike which would have
spread inevitably to them. In Johns-Manville, the employ-
er's action was in response to plant sabotage and interfer-
ence with production by regular employees , an apparent
substitute for striking.
In contrast, in the only case in which a violation was
found, Oshkosh, there was no apparent strike threat and
the union actually advised the employers that it had no
intention of striking at the expiration of the current con-
tracts. Moreover, the evidence was clear that the em-
ployers' action was for the sole purpose of forcing agree-
ment to its contract proposals and not for any other busi-
ness reason. In short, the employers' action was offensive
in nature.
On this point the instant case is distinguishable from
Brown and the other cases in which no violation was
found and indistinguishable from Oshkosh. The Respond-
ent's decision to lock out and to continue operating was
a single and inseparable decision and its purpose was of-
fensive rather than defensive in nature . Respondent's
purpose was basically to force its contract terms on the
union-represented employees . There was no threat of an
imminent strike and the regular employees were willing
to work without a new contract and had expressed this
willingness to Respondent . Moreover, there was no
unique business justification which could be character-
ized as legitimate and substantial enough to counterbal-
ance the interference with employee rights of using out-
side employees to perform the jobs of union-represented
employees during negotiations for a new contract. A
more detailed analysis of Respondent's asserted justifica-
tion follows:
Respondent submits that its decision to lock out em-
ployees at Portsmouth as of April 1 was the result of
several factors . To begin with, Respondent argues, the
Union's conduct during the negotiations evidenced an
intent to avoid reaching agreement by the April 1 con-
tract expiration date . Such conduct , Respondent submits,
was reminiscent of the dilatory tactics employed at vari-
ous of Respondent's locations , during 1969 , 1973, and to
some extent in 1978 , at the height of the coordinated bar-
gaining movement , when the Union was part of an at-
tempt to have several plants operating without contracts
and thus create the possibility of simultaneous strike ac-
tivity. Respondent also relies on the Union 's March 23
strike vote to contend that it had good reason to believe
that a strike at Portsmouth was imminent.
Additionally, according to Respondent, as negotiations
were in progress at Portsmouth , Respondent was experi-
encing difficulties at its Westwego facility , where the
production employees had been working without a con-
tract since February 1. And the collective-bargaining
agreements at Respondent's facilities at Phoenix and
Shoals were also due to expire shortly-on April 11 and
April 15, respectively . As previously noted, the
Westwego production employees are represented by a
different International union and the Phoenix and Shoals
employees by other locals of the Gypsum Workers; but
these unions had previously been involved in coordinat-
ed bargaining , particularly during 1969 and 1973.28
Relying on the above factors, Respondent submits
that, by virtue of the totality of the circumstances exist-
ing in March 1983, it had reason to believe that coordi-
nated bargaining had been revived and that if it did not
effect a lockout at Portsmouth in order to force the
Union to reach an agreement , it might be faced with ex-
pired contracts and simultaneous strikes at Portsmouth,
Phoenix, Shoals, and Westwego by April 15. Moreover,
with separate contracts due to expire at three additional
plants within the next 3 months, Respondent asserts the
fear of facing seven simultaneous strikes.
Respondent further submits that, after locking out the
employees at Portsmouth , it was necessary to maintain
the facility in operation in order to avoid a permanent
loss of business. 89 According to Plant Manager Feith, a
complete shutdown at Portsmouth would have resulted
in its customers seeking to obtain supplies from Respond-
ent's competitors. Feith speculated that once Respond-
ent's Portsmouth customers began to patronize these
other companies, they would never return to Respond-
ent. However, on cross-examination, Feith admitted that
prior to the lockout he was not informed by any custom-
er that it would permanently cease dealing with Re-
spondent if its product became unavailable. Schiffman
also testified that Respondent had lost customers in the
past due to labor disputes . However, he supplied no spe-
cifics about time, facility, or amount of business lost or
whether the dispute involved a strike or lockout.
28 According to the testimony of Schiffman , Respondent had heard
that coordinated bargaining was on the rise again , but evidence to this
effect was hearsay and speculative at best . Schiffman testified as follows:
A. Yes. We had heard , or our plant manager rather, had heard at
Westwego that the Local President had travelled to Shoals , Indiana
for a conference or meeting with at least the President of the Local
at Shoals and perhaps some others from other locals from the
Cement, Lime and Gypsum Worker organized plants.
29 Respondent's Portsmouth facility manufactures wallboard and sells
it to distributors . The distributors in turn sell the product to building con-
tractors . The Portsmouth plant services a geographic area which is com-
posed of the entire State of Maine, most of New Hampshire, Rhode
Island , and most of Massachusetts, particularly the Boston metropolitan
area.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find Respondent's evidence insufficient to establish a
legitimate and substantial business justification for its
action.
First of all, the Union's bargaining tactics were not al-
leged or found to have constituted bad-faith bargaining
under Section 8(b)(3) of the Act. As I stated earlier, in
rejecting a similar argument made by the General Coun-
sel that Respondent 's bargaining positions rendered its
conduct "inherently destructive" of employee rights,
without specific allegations and findings of bad-faith bar-
gaining, an inquiry into the bargaining positions of the
parties would be an endless and elusive venture . This ap-
plies as well to Respondent 's argument. Secondly, in
Oshkosh , the Board specifically rejected the argument
that failure to reach an agreement before the expiration
of a contract provides a justification to continue oper-
ations without utilizing union-represented employees. 179
NLRB at 359. Finally, the Union's conduct at the bar-
gaining table was not of the character which would
make Respondent 's conduct defensive or otherwise dis-
tinguish it from that found unlawful in Oshkosh.
In any event , Respondent's factual assertions concern-
ing the Union's bargaining position are not supported by
the record . Respondent relies principally on the Union's
stance regarding committee pay and Respondent's pro-
posed management -rights clause as well as alleged delays
which precluded the reaching of an agreement before the
April 1 expiration date . Regarding the committee pay
issue, Lynch admitted that it had been Respondent's past
practice to pay the negotiating committee in full and that
such payment had been made at the prior Portsmouth
negotiations . Thus, Respondent 's initial refusal to pay the
committee at all was a change in established past prac-
tice which the Union cannot be faulted for resisting. Ad-
ditionally , despite the testimony of Lynch, it appears that
the committee pay issue was actually settled by compro-
mise on March 28 prior to the contract expiration date
and the date of the lockout.
Nor can the Union 's resistance to the proposed man-
agement-rights clause be considered evidence of bad
faith. In this regard , Respondent stresses that the same
clause had been accepted at its Mobile facility in 1982,
that that facility is represented by a local of the Gypsum
Workers and that Perkins also participated in those nego-
tiations . However, an examination of the clause reveals
that it is significantly more extensive than that which ap-
peared in the prior contract at Portsmouth . Indeed, Per-
kins testified that it was his opinion that the clause "ex-
panded" management rights and he recommended that
the Union reject it. Thus, it appears that the Union was
again resisting a change in the status quo which was
being proposed by Respondent . Moreover , Respondent
seems to have been less than totally committed to the
clause . The exact same clause was simultaneously pro-
posed at Shoals . Yet, on April 14, 1983, a contract was
reached at Shoals which did not contain the new man-
agement-rights clause . This fact was made known to the
union negotiators at Portsmouth . Thus, from that point
on, the Union had reason to believe it might succeed in
its position . Indeed , when an agreement was finally
reached at Portsmouth , Respondent's management-rights
clause did not appear in the final contract. Thus, it ap-
pears that the Union was not acting in bad faith , but was
in the process of successfully resisting, as had been done
at other facilities , a change in the status quo, which had
been proposed by Respondent.
Finally, even though the Union was unavailable to ne-
gotiate during the week of March 20 to 27 and had de-
cided not to negotiate after 4 p.m., its conduct during the
course of substantive negotiations did not indicate an
intent to avoid an agreement by April 1. In this regard,
Lynch testified that normally eight meetings were suffi-
cient to reach accord at Portsmouth. An examination of
the record reveals that prior to the lockout the parties
actually met seven times . Thus, the Union's 1-week ab-
sence would seem to have had little effect on the
progress of the negotiations. Moreover, Schiffman admit-
ted that Respondent at no time in 1983 filed any unfair
labor practice charges against the Union for failure to
bargain in good faith . Indeed, by March 31 , the Union
had significantly altered its demands . It had reduced its
original $1 -raise demand by one-half to 50 cents and had,
by Lynch's own admission , withdrawn its IPC proposals
and had even submitted Respondent 's final offer to its
membership for approval . Thus, the Union had made sig-
nificant moves toward compromise . On the other hand,
according to both Lynch and Perkins, the management-
rights clause and the insurance containment provision
represented two of the major stumbling blocks to reach-
ing an agreement . Both of these were proposals set forth
by Respondent which represented departures from the
prior collective-bargaining agreement and Respondent
had refused to alter them during the course of the nego-
tiations before the lockout . Thus, Respondent was at
least as responsible for lack of agreement before April 1
as was the Union.
Nor is Respondent's assertion that it feared simultane-
ous strikes at up to seven of its locations supported by
the record evidence. To begin with, the IUD, which had
been the principal architect of such activity in previous
years, was moribund as far as Respondent was con-
cerned. It had not participated in negotiations at any of
Respondent 's facilities since at least 1981 . And its Na-
tional Gypsum Committee had not met in 3 years. This
lack of activity was essentially due to the IUD's failure
to achieve its goals at National Gypsum . Schiffman read-
ily acknowledged this. Moreover , Schiffman also testi-
fied that Respondent was kept apprised of IUD activity
by means of its subscription to the IUD Digest, a publi-
cation which details both committee meetings and co-
ordinated bargaining efforts . Thus, Respondent must
have surely known of the lack of IUD activity as the
1983 negotiations approached.
Secondly, there is no indication that the indicia of
IUD activity which was attendant during the 1969 and
1973 negotiations at various of Respondent 's plants was
evident at any of the 1983 negotiations involving the
seven plants to which Respondent referred. There is no
evidence that Campagna or any other IUD official took
part in the negotiations , or that standard IUD proposals
were submitted, or that there was any attempt to arrange
some type of joint negotiations between Respondent and
IUD officials or that the IUD was somehow involved in
NATIONAL GYPSUM CO.
coordinating the bargaining efforts of these facilities.
Simply put , there is no evidence that the IUD was in-
volved in the 1983 negotiations.
Nor is there anything unusual in the participation by
the Gypsum Workers International in the 1983 Ports-
mouth negotiations. There was no specific effort to co-
ordinate the bargaining at Portsmouth with that of other
locals in any significant way. Thus , there was no attempt
to obtain contracts with common expiration dates or to
cause simultaneous strikes. The record is clear that the
International proposals were not an important factor in
the bargaining of the parties . Indeed, at Portsmouth, they
were actually removed from consideration prior to April
1, the date of the lockout. And there is no evidence that
these proposals appeared in a final collective -bargaining
agreement. I fail to see the significance of Respondent's
references to the International 's constitution in this re-
spect . Although the International must approve local
bargaining agreements , there is also a requirement that
the employee members of the local approve such agree-
ments . Whatever the International 's constitutional au-
thority, what must be considered is the International's
conduct during the 1983 bargaining . In my view, Re-
spondent has not demonstrated that the International's
participation provided a greater basis for the lockout and
use of temporary replacements than existed without such
participation.
In summary , there was simply no evidence of the re-
vival of coordinated bargaining and its bothersome re-
sults at Portsmouth or Respondent's other locations. In
this regard, it should be noted that Schiffman's testimony
concerning a 1983 meeting between the president of the
Westwego local of OCAW and the presidents of various
Gypsum Workers International locals was not corrobo-
rated by independent evidence . Moreover, it is vague
and makes no reference to the Portsmouth negotiations.
Thus, I cannot attach much significance to this piece of
evidence.
Turning to the most important element in Respond-
ent's argument, there is no evidence that, as part of a co-
ordinated bargaining effort, a strike was imminent at
Portsmouth or at any of the six other plants mentioned
by Respondent . The Portsmouth employees did take a
strike vote on March 23 . However, as Local President
Harrison explained, this was a mere formality , a condi-
tion precedent to obtaining benefits from the Internation-
al on an expedited basis should the employees ultimately
strike or be locked out . Because the Portsmouth employ-
ees had been locked out twice during previous negotia-
tions and they were to be locked out again during these
negotiations, their action had an understandable basis..
They were in fact prevented from working by Respond-
ent and, having lost their pay, were required to, and did,
rely on the International's lockout benefits. Significantly,
Respondent introduced no further evidence which would
indicate that the Union was preparing for a strike or had
taken any definitive measures toward a strike. There is
no evidence that the threat of a strike was ever men-
tioned prior to the Respondent 's lockout. Nor did Re-
spondent ever express any concern to the Union that it
might be struck at Portsmouth or its other locations.
Likewise there is no evidence that Respondent sought as-
609
surances or guarantees that it not be struck . Indeed, at
the March 30 meeting , when Respondent announced its
decision to lock out employees, the decision was ex-
pressed solely in terms of a failure to reach an agree-
ment. The supposed fear of a strike was never men-
tioned . Further, before the lockout was imposed, the
Union offered to extend the existing contract, which
contained a no-strike pledge, but Respondent refused the
offer. Although this offer was on a day -to-day basis, Re-
spondent did not ask for greater, or indeed any, no -strike
protection . Thus, the situation here is quite unlike those
cases, such as Ottawa Silica Co., 197 NLRB 449 (1972),
affd. mem . 482 F.2d 945 (6th Cir. 1973), and Inter Colle-
giate Press, 199 NLRB 177 (1972), affd. 486 F .2d 837 (8th
Cir. 1973), cert. denied 406 U.S. 938 (1974), in which the
employer asked for assurances against a strike and the
union refused to give them.
It is worthy to note that , as of April 1983, there had
been no strikes at Portsmouth for 14 years . Moreover, in
at least two meetings, those on March 30 and May 17,
members of the Union 's negotiating committee informed
Respondent that the Portsmouth employees were willing
to continue to work. Indeed, Portsmouth employees had
a history of working without incident after expiration of
their collective-bargaining agreements . In 1979, the
Portsmouth employees worked from April 1 to June 1
without a contract. SO Likewise in 1981 , the Portsmouth
employees worked without a contract from April 1 to
4.81 Finally, there is no record evidence of complaints
from Respondent concerning employee sabotage or slow-
downs during either of these periods or during the
course of the 1983 negotiations.
Nor did Respondent introduce evidence that there was
any indication of imminent strike activity at the other six
plants in question . As of April 1 , the Westwego produc-
tion employees had been working without a contract for
2 months . Although they eventually struck, they did not
do so until May 23, some 7 weeks after the Portsmouth
lockout.32 Furthermore , the Phoenix and Shoals plants,
whose contracts expired within 2 weeks of that of Ports-
mouth and who, according to Respondent , presented an
immediate threat with Portsmouth of simultaneous strike
activity, both signed new contracts by April 15. These
contracts, which contained broad no-strike clauses, of
course, eliminated the possibility of the employees of
these two plants taking part in any strike activity. Yet
the Portsmouth lockout continued until August 1-an
additional 3-1/2 months.
Finally, Respondent introduced no evidence suggestive
of imminent strike activity at the remaining three loca-
tions-Rotan, National City, or Baltimore . There is no
indication in the record that the employees at any of
these locations engaged in strike activity or were locked
out. (R. Exh. 40.) Indeed, although the contract at Rotan
expired on July 1 , the employees were permitted to
so A contract was signed on June 7.
81 A contract was signed on April 4.
as At one point, Schiffman testified that the union negotiators were
also employing dilatory bargaining tactics at Westwego . However, he
supplied no specifics and admitted that Respondent did not file unfair
labor practice charges to that effect.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work without an agreement until a settlement was
reached on July 22.33 As for Baltimore and National
City, there is no indication in the record that the parties
did not settle prior to the expiration of the applicable
agreements.
In view of the lack of factual support for the above
allegations, it appears that Respondent 's lockout and
temporary replacement of the employees at Portsmouth
was strictly an offensive maneuver designed to force the
Union to capitulate to Respondent 's demands at Ports-
mouth as well as at other locations . This fording is sup-
ported by the following testimony of Schiffman:
Q. Do you use a lockout only to counter coordi-
nated bargaining?
A. No.
Q. What other purposes do you use a lockout?
A. Well, where it becomes obvious during the
bargaining that the-the local or the international
union has no intention of trying to discuss the issues
intelligently and bargain in good faith or they have
no intention of reaching agreement on time.
Our position is and has always been we seek to
reach an agreement by the expiration date, to do
what we can to reach an agreement satisfactory to
both sides.
One of the reasons a lockout has been used over
the years is to-to try to-to bring the matter to a
head, try to-to have the parties get together and-
and discuss those issues intelligently to reach a set-
tlement on time.
With respect to the settlement at Shoals, subsequent to
the Portsmouth lockout, Schiffman testified as follows:
A. In fact, we know that the lockout at Ports-
mouth, in fact, was a factor from out of the work-
force at Shoals in urging them on and getting-the
table and getting to the important issues and reach-
ing a settlement on time.
In view of the offensive nature of Respondent's action,
its argument that it needed to continue operating its busi-
ness-based primarily on the speculative and conclusory
testimony of Plant Manager Feith-because it feared a
loss of customers is tantamount to an argument that the
simple desire to continue normal business operations per-
mits both the lockout of union-represented employees
and the continued operation with temporary replace-
ments. This is not the equivalent of a substantial and le-
gitimate business justification under Brown. Not only was
this very argument rejected in Oshkosh, but, if accepted
here, would establish a per se rule that all continued op-
erations with temporary replacements after an offensive
lockout are permissible. Such a ruling would render
meaningless the Brown test. What is significant here-and
was significant in Oshkosh-is that the regular, union-rep-
resented employees wanted to work, but were prevented
from doing so by their employer who had no special
s s Schiffman testified that the union negotiators at Rotan also em-
ployed dilatory bargaining tactics. In this instance , Respondent did file
unfair labor practice charges with the Board . However, the General
Counsel refused to issue a complaint.
business reason to operate without them, but did so de-
liberately in order to impose its contract demands on
them. In this case , where there was no evidence of a
threat of an imminent strike, there could be no serious
fear of loss of customers caused by a strike or potential
strike. Indeed, Feith admitted he had received no specif-
ic evidence of customer fears of this type before Re-
spondent announced its lockout. In short, the entire argu-
ment that Respondent feared a loss of customers pro-
ceeds from a faulty premise . Unless the feared loss of
customers had some reasonably based causal connection
to a threat of an imminent strike or some other conduct
of the Union or union-represented employees, it is obvi-
ous that the feared loss of customers was caused by Re-
spondent's own action-the offensive lockout. Accord-
ingly, Respondent's asserted economic justification for
continuing to operate during a lockout, invoked by it as
an offensive weapon, cannot, in the circumstances of this
case , counterbalance the interference with employee
rights caused by its action.
In summary, the instant case contains the same ele-
ments of interference with employee rights which caused
the Board, in Oshkosh, to require an inquiry into the em-
ployer's business justifications for such interference.
Moreover, the instant case, like Oshkosh but unlike other
cases subsequent to Oshkosh in which no violation was
found, presents the situation where Respondent's use of
temporary replacements was an offensive weapon not
impelled by the threat of an imminent and financially
harmful strike and where Respondent admitted that its
action was occasioned solely by a desire to force the
union-represented employees to accede to its contract
proposal. As the Board indicated in Oshkosh, the mere
desire to keep a business open in the absence of a strike
threat does not constitute a legitimate and substantial
business justification for using temporary replacements
during a lockout. Nor is there any requirement that a
new contract be concluded before the expiration of the
old one, particularly where, as here, the employees of-
fered to continue working and the Union agreed to
extend the old contract. Because the union-represented
employees were ready and willing to work notwithstand-
ing the expiration of their agreement, there was no justi-
fication to operate without them. In these circumstances,
I fmd that Respondent violated the Act by using tempo-
rary replacements during a lockout not forced or caused
by union action.
CONCLUSIONS OF LAW
1. By locking out its union-represented employees and
continuing to operate with temporary replacements with-
out substantial and legitimate business justification, Re-
spondent has violated Section 8(aX3) and (1) of the Act.
2. The above violation constitutes an unfair labor prac-
tice within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated the Act, I
will recommend that it cease and desist from the conduct
found unlawful herein and to take certain affirmative
NATIONAL GYPSUM CO.
action designed to effectuate the purposes of the Act. In
this case, the decision to lock out employees and to con-
tinue operating was a single decision which resulted in
union-represented employees who wanted to work being
deprived of pay and benefits. Thus, in accordance with
the remedy set forth in Oshkosh, supra, 179 NLRB 350 at
360 (1969), and enforced by the United States Court of
Appeals for the Seventh Circuit, I shall order that the
locked-out employees be restored to their former status,
seniority, and other rights and privileges, to the extent
that has not already been accomplished, and that they be
made whole for their loss of wages and benefits from
April 1 to August 1, 1983, the period of the lockout, less
interim earnings. Such sums shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as provided in Florida Steel Corp.,
231 NLRB 651 (1977).34
The General Counsel also asserts that the notice re-
quired to be posted in this case should be posted not
only at the Portsmouth plant, but at all Respondent's
plants in the United States. Such corporatewide notice
posting is well within the Board's discretion in fashioning
appropriate remedies. See NLRB v. Delchamps, Inc., 653
F.2d 225, 228-229 (5th Cir. 1981 ), enfg . 244 NLRB 366
(1979); J. P. Stevens Ca V. NLRB, 623 F.2d 322, 327 (4th
Cir. 1980); Gerry's I.G.A. v NLRB, 602 F.2d 1021, 1025
(1st Cir. 1979).
The evidence herein supports the broad posting re-
quirement. The evidence clearly shows that the decision
in this case was made by Respondent's corporate officials
with an eye towards its effect on all of its union-repre-
sented plants. Its defense involved an analysis of bargain-
ing at widely scattered plants . Moreover, Respondent's
director of employee relations, Samuel Schiffman, testi-
fied that lockouts have been used in the past as a bar-
gaining tactic and "in most cases " Respondent continues
34 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
611
to operate during such lockouts. His testimony strongly
suggests that Respondent intends to continue this policy.
Moreover, Schiffman's testmony also shows that Re-
spondent takes into account the impact of its lockouts on
plants other than that which is the subject of the lockout.
For example, he viewed the successful Portsmouth lock-
out as having influenced the Shoals settlement. Finally, it
is clear that Respondent monitors the actions of all
unions which represent its employees at all locations in
an effort to achieve bargaining superiority. There is, of
course, nothing unlawful in Respondent's coordinated
approach to bargaining at all its plants. However, be-
cause its corporatewide and coordinated policy was im-
plemented in an unlawful manner in Portsmouth, there is
every reason to notify union-represented employees at
other plants that similar unlawful conduct may not be di-
rected against them. I see this as the equivalent of notify-
ing all employees in a plant that they may not be dis-
criminated against in the same manner as a particular em-
ployee in that plant whose discharge was found to be un-
lawful. Such a notice is appropriate even though it is un-
derstood that the Employer may legitimately discharge
employees in the future; the only prohibition is that it
not discharge employees unlawfully. Here, also, Re-
spondent is not prohibited from lawfully utilizing a lock-
out with temporary replacements at other plants. How-
ever, Respondent may not lock out union-represented
employees and operate with temporary personnel in the
absence of substantial and legitimate business reasons.
That is the law. There is nothing oppressive in notifying
employees at other plants of that fact as well as the fact
that Respondent has violated the law in this respect at
one of its plants. The remedy is reasonably related to the
violation and is addressed to preventing its recurrence.
Accordingly, I shall order that the Board's notice be
posted not only at Portsmouth but at all Respondent's
plants whose employees are represented by unions for
the purpose of collective bargaining.
[Recommended Order omitted from publication.]