Schenk Packing Co.

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 487 (N.L.R.B. 1991)

487
301 NLRB No. 68
SCHENK PACKING CO.
1 All dates hereafter are in 1989 unless otherwise noted.
Schenk Packing Company and United Food and
Commercial Workers Union Local 44, affiliated
with United Food and Commercial Workers
International Union, AFL–CIO, CLC. Case 19–
CA–20214
January 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by the Union on March 6, 1989,
and an amended charge filed on May 8, 1989, the
General Counsel of the National Labor Relations
Board by the Regional Director for Region 19 issued
an amended complaint and notice of hearing dated
September 27, 1989. The complaint alleges that the
Respondent has violated Section 8(a)(1) of the Na-
tional Labor Relations Act by inducing its employees
to resign their union membership. The complaint also
alleges that the Respondent has violated Section
8(a)(1) and (3) by locking out certain unit employees
and conditioning their reinstatement on resignation
from the Union. The complaint alleges further that the
Respondent has violated Section 8(a)(1), (3), and (5)
by giving benefits related to terms and conditions of
employment, without prior notification to and bar-
gaining with the Union, to unit employees who re-
signed from the Union and by withholding such bene-
fits from locked-out employees.
On October 24, 1989, the General Counsel, the Re-
spondent, and the Union filed with the Board a joint
motion to transfer this proceeding to the Board the
charges, the amended complaint and notice of hearing,
the Respondent’s answer, and the stipulation of facts
with attached exhibits constitute the entire record in
this case and that no oral testimony was necessary or
desired by the parties. The parties further stipulated
that they waived a hearing and the making of findings
of fact, conclusions of law, and the issuance of a deci-
sion and recommended Order by an administrative law
judge, and submitted the case directly to the Board for
findings of fact, conclusions of law, and a Decision
and Order.
On December 18, 1989, the Board issued an order
granting the joint motion, approving the stipulation of
facts, and transferring the proceeding to the Board. The
General Counsel and the Respondent subsequently
filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation of the State of
Washington, engaged in the operation of a beef slaugh-
ter, boning, and grinding facility near Stanwood,
Washington. During the 12-month period preceding the
execution of the parties’ stipulation of facts, the Re-
spondent had gross sales of goods and services valued
in excess of $500,000. During the same time period,
the Respondent sold and shipped goods or provided
services valued in excess of $50,000 from within the
State, either to customers outside the State, or to cus-
tomers within the State who themselves were directly
engaged in interstate commerce. During the same time
period, the Respondent purchased and received goods
and materials valued in excess of $50,000 either di-
rectly or indirectly from sources outside Washington
State. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
We further find that the Union, United Food and
Commercial Workers Union Local 44, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent and the Union have had a collec-
tive-bargaining relationship since 1966. That relation-
ship has resulted in successive collective-bargaining
agreements, the most recent of which expired January
31, 1989. The unit represented by the Union consists
of production and loading employees of the Respond-
ent, specifically, its employees working on the kill
floor, in the boning department, and in the grinding de-
partment. In January 1989,1 the parties began negotia-
tions for a new collective-bargaining agreement. On
February 13, the Respondent presented the Union with
a final offer. On February 21, the unit employees re-
jected the Respondent’s offer, and voted to authorize
a strike if the Respondent and the Union could not
agree on a new contract. When told of the employees’
rejection of its offer and their strike authorization, the
Respondent insisted that the Union provide 2 weeks’
notice of any strike, asserting that this would allow it
to regulate its purchase of cattle for slaughter and
avoid the potential for spoilage of slaughtered beef
awaiting boning and grinding. The Union, disagreeing
with the Respondent’s assertions, offered to give 48
hours’ notice before commencing a strike.
On February 23, the Respondent initiated a partial
lockout, laying off first its kill-floor employees, and
then its boning department employees. For approxi-
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 It is not clear in the stipulated record, and there is no complaint allegation,
that these unit employees were ‘‘hired’’ as ‘‘temporary employees,’’ as the
April 26 memorandum suggested they would be.
3 On June 27, the Division of Advice determined that no complaint allega-
tion should issue with respect to the partial lockout, i.e., the lockout the Re-
spondent maintained until April 28. The legality of the partial lockout is thus
not at issue in this case. See Bali Blinds Midwest, 292 NLRB 243, 246 (1989),
for a discussion of the lawfulness of a partial lockout.
mately the next 2 months, the Respondent operated
only its grinding department, using the unit employees
who had been working in that classification. On April
21, following impasse in the parties’ negotiations, the
Respondent unilaterally implemented its final offer of
February 13.
On April 26, the Respondent distributed a memo-
randum to the unit employees concerning the ‘‘labor
dispute’’ and the employees’ ‘‘current employment sta-
tus.’’ The memorandum recounted the Union’s refusal
to agree to a 2-week strike notice and asserted that the
partial lockout was necessary to avoid the risk of alien-
ating customers by failing to deliver the Respondent’s
product and the risk of ‘‘being stuck with cattle we
could not process.’’ The memo also discussed per-
ceived uncertainties regarding the legality of the partial
lockout, the Union’s filing of unfair labor practice
charges concerning it, and the Regional Office’s sub-
mission of the question to the Division of Advice in
Washington, D.C. The memo then set forth the fol-
lowing:
Effective Friday, April 28, 1989, we will institute
a total lockout in which all Union employees will
be locked out. While we are reluctant to take this
action, it is clear that a total lockout under these
circumstances is perfectly legal and resolves any
uncertainty as to a partial lockout. During this
lockout, the following conditions apply: (1) no
Union members will be employed as replace-
ments; (2) we are only entitled to use temporary
non-union employees as replacements during the
lockout, and (3) if locked out Union employees
become non-union members of the labor market,
it is possible for them to be hired temporarily for
the duration of the lockout. However, it is impor-
tant to understand that we cannot and are not by
this letter encouraging you one way or the other
with respect to resigning from the Union. Nor are
we in any way promising you a job in the event
that you do resign from the Union. The question
as to whether you remain members of the Union
or resign is totally yours to make and we are not
taking a position one way or the other. We are
simply reviewing the existing facts in light of the
applicable national labor law. We trust you under-
stand our position in that respect.
On April 28, the Respondent, pursuant to the inten-
tions expressed in the April 26 memo, initiated a total
lockout of all employees who were members of the
Union. Ten unit employees resigned from the Union
between April 26 and May 5; these employees were
permitted to return to work.2 For the duration of the
lockout—approximately 1 month—the Respondent op-
erated its facility with the use of management and su-
pervisory personnel, nonunit employees, the unit em-
ployees who resigned from the Union, and newly hired
temporary replacements. No unit employee who main-
tained membership in the Union was allowed to work.
About May 4, the Respondent gave all its employees
who were actively employed between April 28 and
May 4 a bonus package consisting of a $500 check
and a written notice conferring an additional week of
paid vacation. The group of employees receiving the
bonus package included the unit employees who had
resigned from the Union and returned to work by May
4. None of the unit employees who remained locked
out received the bonus package. The Respondent did
not inform employees or the Union prior to May 4 that
the bonus package would be given, or otherwise pro-
vide the Union an opportunity to bargain about the
package. The package was not part of the Respond-
ent’s final offer implemented on April 21.
Pursuant to the terms of a memorandum distributed
to unit employees on May 24, the Respondent allowed
the locked-out kill-floor and grinding department em-
ployees to return to work on May 31, and allowed the
locked-out boning department employees to return to
work on June 1, thus terminating its lockout on those
dates. On May 31, the unit employees commenced a
strike. On July 26, after the Respondent and the Union
reached agreement on a new collective-bargaining
agreement, the employees ended the strike and offered
unconditionally to return to work.3
B. Contentions of the Parties
The General Counsel contends that the Respondent’s
April 26 memo announced an intention to discriminate
against employees who were union members by lock-
ing them out, and induced and encouraged unit em-
ployees to relinquish their union membership in order
to continue working, and thereby coerced employees in
violation of Section 8(a)(1). The General Counsel fur-
ther contends that the Respondent’s lockout commenc-
ing on April 28 was in and of itself discriminatory and
unlawful under Section 8(a)(3) and (1), and without
any legitimate business justification, because its pur-
pose was to deny employment to employees who were
union members and to condition further employment
on resignation from the Union. With regard to the Re-
spondent’s conferral of the bonus package, the General
Counsel argues that it violated Section 8(a)(1), (3), and
(5) because it interfered with unit employees’ Section
7 rights, because it constituted disparate treatment for
the purpose of discouraging union membership, and
489SCHENK PACKING CO.
4 The General Counsel moved that the Respondent’s factual assertions in its
brief concerning its motivation for the bonus package be stricken as beyond
the scope of the parties’ stipulation. We will dispose of the motion below.
5 In defending against the 8(a)(1) allegation concerning the statements in its
April 26 memo, and against the 8(a)(3) allegations regarding the lockout, the
Respondent primarily relies on the court’s decision in NLRB v. Martin A.
Gleason, Inc., 534 F.2d 466, 476 (2d Cir. 1976), remanding 215 NLRB 340
(1974). The Gleason case, however, is distinguishable; the lockout there was
called by members of an employers association in response to the union’s
whipsaw strike, and the inducement to resign from the union occurred subse-
quent to the initiation of the lockout. Additionally, the Board has never en-
dorsed the Second Circuit’s views expressed in that opinion concerning what
an employer lawfully may say and do in the context of a lockout.
Further, to the extent the Respondent ultimately relies on language in NLRB
v. Brown Food Store, 380 U.S. 278 (1965), concerning ‘‘the use of temporary
nonunion personnel in preference to the locked-out union members,’’ id. at
288, we find such reliance unavailing. We do not interpret Brown as estab-
lishing a privilege, or a duty, to discriminate against union members in tem-
porary hiring in a lockout situation. That issue was clearly not before the
Brown Court.
because it amounted to a change in the terms and con-
ditions of employment of those unit employees who re-
ceived it without prior bargaining with the employees’
bargaining representative.
The Respondent contends that the lockout was law-
ful, justified by its need to protect against the spoilage
of unprocessed beef in the event of a strike. With re-
gard to the April 26 memo, the Respondent contends
that it simply stated the Respondent’s view of the facts
and applicable law, containing no threat of reprisal or
promise of benefit, and was thus protected under Sec-
tion 8(c). The Respondent further argues that because
it neither induced employees to resign from the Union
nor conditioned reinstatement on union resignation, its
allowing employees who voluntarily resigned from the
Union to return to work was also lawful. With respect
to the bonus package, the Respondent contends that it
was awarded during the course of the lockout pursuant
to substantial business justifications,4 which out-
weighed any minimal impact on unit employees’ Sec-
tion 7 rights, and, therefore, did not violate Section
8(a)(1). Concerning the 8(a)(5) allegation, the Re-
spondent contends that because the bonus package con-
stituted a gift rather than wages, it was not a term and
condition of employment over which the Respondent
had an obligation to bargain.
C. Discussion
1. The April 26 memorandum and the lockout
An employer’s statement to employees that condi-
tions employment on giving up union membership or
activity tends to interfere with, restrain, and coerce em-
ployees in the exercise of Section 7 rights and violates
Section 8(a)(1). See, e.g., A-1 Schmidlin Plumbing Co.,
284 NLRB 1506 (1987). Although an employer does
not violate the Act merely by providing employees
with information relating to union resignation, if it ad-
ditionally creates a situation in which employees
would tend to feel imperiled should they refrain from
resigning, the employer’s conduct constitutes unlawful
solicitation of resignation from union membership.
See, e.g., Manhattan Hospital, 280 NLRB 113, 114–
115 (1986), enfd. mem. 814 F.2d 653 (2d Cir. 1987),
cert. denied 483 U.S. 1021 (1987). We find that the
Respondent’s April 26 memorandum amounted to such
an unlawful solicitation and violated Section 8(a)(1).
In its April 26 memorandum, the Respondent made
three significant points concerning employment of unit
employees during its impending lockout that created a
situation in which the employees would reasonably
tend to perceive a substantial employment risk should
they fail to resign from the Union. To the extent that
the memorandum suggested that the Respondent’s tem-
porary hiring options were limited for legal reasons to
applicants who were not union members, it was incor-
rect as a matter of law and misleading to employees.5
Its stated condition that ‘‘no Union members will be
employed as replacements’’ is an explicit statement of
its intention to discriminate in employment against
those maintaining union membership. Finally, its sug-
gestion that locked-out union members might be rein-
stated during the lockout if they first revoked their
union membership is a specific, unlawful solicitation to
resign from the Union. The Respondent’s message was
that it would not even consider unit employees for em-
ployment while the lockout was in effect unless they
withdrew from the Union. This condition for employ-
ment consideration is neither justified nor mitigated by
any other statements in that particular paragraph or any
other part of the April 26 memo. Whether one inter-
prets the Respondent’s statements concerning employ-
ment conditions during the lockout as a threat of con-
tinued layoff for unit employees who do not resign
from the Union, or as a promise of consideration for
employment for those who effect such resignations, it
is abundantly clear that Section 8(c)—which sanctions
neither threats nor promises—provides the Respondent
no protection. The Respondent’s solicitation of em-
ployees’ union resignations in the context of an unpro-
tected threat and promise quite reasonably tended to
interfere with, restrain and coerce the unit employees
in the exercise of their Section 7 rights, and violated
Section 8(a)(1). A-1 Schmidlin, supra, Manhattan Hos-
pital, supra.
In considering the lockout of unit employees that
began on April 28, we find substantial guidance in the
Supreme Court’s opinion in American Ship Building
Co. v. NLRB, 380 U.S. 300 (1965). There the Court
held that an employer may lawfully lock out its unit
employees temporarily for the sole purpose of applying
economic pressure in support of its valid bargaining
position. Id. at 318. In discussing the appropriateness
of examining the employer’s motivation for estab-
lishing its lockout in the context of alleged 8(a)(3) dis-
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Because the complaint does not allege that the Respondent’s hiring of tem-
porary replacements during the lockout was unlawful, Harter Equipment, 280
NLRB 597 (1986), review denied sub nom. Operating Engineers Local 825
v. NLRB, 829 F.2d 458 (3d Cir. 1987), is inapplicable in this case.
7 This is an equally important threshold matter in the 8(a)(5) analysis below.
8 R. Br. 4.
crimination, the Court noted the limited nature of the
situation before it:
There is no claim that the employer locked out
only union members, or locked out any employee
simply because he was a union member; nor is it
alleged that the employer conditioned rehiring
upon resignation from the union.
Id. at 312.
The situation the Supreme Court distinguished in
American Ship Building is before us in the present
case. Pursuant to its April 26 memo the Respondent
engaged in a lockout of certain unit employees that
lasted for about a month. That memorandum clearly
stated that union members would not be hired as re-
placements during the lockout, and that unit employees
would be considered for employment only if they re-
signed from the Union. Further, during the course of
the lockout, the Respondent reinstated 10 unit employ-
ees who did resign from the Union, while those who
remained union members continued to be deprived of
their employment. These facts establish a clear basis
for finding that discouragement of the unit employees’
union membership was a fundamental objective in the
Respondent’s decision to conduct the April 28 lockout.
The Respondent contends that its justification for the
April 28 lockout was the same as for the earlier, par-
tial lockout–to avoid the spoilage of meat that would
occur because of a strike called by the Union without
sufficient notice. For the purposes of this decision, we
shall assume without deciding that the Respondent’s
interest in avoiding spoilage of its product underlay its
2-week strike notice proposal, that its decision to im-
plement a total lockout was based in part on a desire
to avoid legal issues implicated in its earlier, partial
lockout, and that these considerations had an adequate
nexus with the Respondent’s ‘‘legitimate bargaining
position.’’ None of these assertions, however, provides
even a remote justification for a lockout which, in its
initial announcement to unit employees, expressly con-
ditioned reinstatement on resignation from union mem-
bership.
We conclude, therefore, that an unavoidable effect
and, hence, unstated purpose of the lockout was to dis-
courage unit employees’ membership in the Union by
denying employment to those who maintained that sta-
tus. Accordingly, the Respondent’s conduct violated
Section 8(a)(3) and (1), as alleged in the complaint.6
See United Chrome Products, 288 NLRB 1176 fn. 2
(1988), in which the Board found, inter alia, an 8(a)(3)
violation, concluding that the employer’s lockout of
unit employees followed by their rehire as new, proba-
tionary employees was a device to implement unlaw-
fully a unilateral change in seniority rights.
2. The bonus package
As set forth above, about May 4, the Respondent
gave all its actively employed workers—i.e., those who
were not locked out—a bonus package consisting of a
$500 check and a written note awarding them an extra
week of vacation. Although occurring in the context of
an unlawful lockout, these circumstances are somewhat
analogous to a situation in which an employer, fol-
lowing a strike by unit employees, decides to grant
benefits to its employees who worked during the
strike, including those unit employees who chose to
cross the picket line and return to work, while with-
holding such benefits from those who engaged in the
strike. In the appropriate circumstances, the Board has
found that conduct of this kind violates Section 8(a)(1)
because of its impact on employees’ rights to engage
in protected activity, see, e.g., Desert Inn Country
Club, 282 NLRB 667, 668 (1987); Rubatex Corp., 235
NLRB 833, 835 (1978), enfd. 601 F.2d 147 (4th Cir.
1979); Swedish Hospital Medical Center, 232 NLRB
16 (1977), reconsidered sua sponte 238 NLRB 1087
fn. 2 (1978), enfd. in relevant part 619 F.2d 33 (9th
Cir. 1980); Aero-Motive Mfg. Co., 195 NLRB 790, 792
(1972), enfd. 475 F.2d 27 (6th Cir. 1973). The Board
has also found that conduct of this sort may violate
Section 8(a)(3) because the disparate, detrimental treat-
ment of those who engaged in activity in support of
the union discourages further participation in such ac-
tivity and in union membership. See, e.g., Desert Inn,
supra at 668; Swedish Hospital, supra, 232 NLRB at
20–22. Finally, the Board has found that the conferral
of additional compensation on some unit employees—
those who returned to work during the strike—without
prior notice to and bargaining with the unit employees’
bargaining representative may constitute a unilateral
change in terms and conditions of employment in vio-
lation of Section 8(a)(5). See, e.g., Rubatex, supra at
835; Swedish Hospital, supra, 232 NLRB at 21–22;
Aero-Motive, supra at 792–793.
We address first the 8(a)(3) allegation attacking the
award of the bonus package. A threshold question is
whether the bonus package was a ‘‘term or condition
of employment’’ within the meaning of Section
8(a)(3).7 The parties’ stipulation of facts provides scant
reference to the nature of the bonus package. However,
in its brief, the Respondent asserts that the bonus pack-
age was the product of a business decision ‘‘to reward
these employees working the long hours required by
the strike [sic] and suffering the abuse from the Union
which had been taking place.’’8 The Board has author-
ity to accept as fact assertions by a party that are mate-
491SCHENK PACKING CO.
9 In light of the above, we deny the General Counsel’s motion to strike from
the record the reasons for the bonus package asserted in the Respondent’s
brief.
10 Regarding the 8(a)(3) bonus package and the Respondent’s 8(a)(3) lock-
out as well, in light of the evidence of unlawful motivation and the inadequacy
of the Respondent’s asserted justifications, we find it unnecessary to consider
whether either incident may be characterized as ‘‘inherently destructive’’ con-
duct within the meaning of NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
12 Due to the ongoing nature of the lockout, it would appear that the imme-
diate discouraging effect on the Sec. 7 rights of unit employees currently af-
fected by the lockout would be greater than the effect of such a bonus award-
ed after unit employees returned to work, as in Desert Inn, supra, and Swedish
Hospital, supra.
12 Additionally, we note that, to the extent the bonus package itself may rea-
sonably be perceived as illegal in light of the 8(a)(1) and (3) violations found
above, this is not a defense to the Respondent’s failure to bargain about it.
Discussion with the Union of the bonus package as a proposal might have
opened the question of its legality, leading the Respondent to withdraw the
proposal and to consider alternatives. Rubatex, supra at 835; Aero-Motive,
supra at 792.
rial to an unfair labor practice issue and that constitute
admissions against that party’s interest. See, e.g.,
Massillon Community Hospital, 282 NLRB 675 fn. 5
(1987); Florida Steel Corp., 235 NLRB 1010, 1011–
1012 (1978). Therefore, we accept as fact the Re-
spondent’s assertion that the bonus was in the nature
of compensation for services the Respondent perceived
to have been rendered, even in the absence of stipula-
tions or evidence to support the proposition that em-
ployees worked ‘‘long hours’’ and suffered ‘‘abuse
from the Union’’ during the lockout.9 As compensa-
tion, the bonus package given to each of the Respond-
ent’s employees who were not locked out constituted
terms and conditions of employment within the mean-
ing of the Act. Desert Inn, supra at 668; Rubatex,
supra at 835; Swedish Hospital, supra, 238 NLRB at
1087.
The conferral of the bonus package in the cir-
cumstances of this case was clearly a matter of dis-
parate treatment: all employees who were actively em-
ployed on May 4 received the bonus, and those who
were locked out—union members—did not. Further,
taking account of the context in which the bonus was
given—the unlawful April 26 memo inducing unit em-
ployees to resign from the Union and the ongoing, un-
lawful lockout that conditioned reinstatement on union
resignation, we find that a motivating factor for the
award of the bonus was to discourage union member-
ship. Thus, the Respondent not only locked out union
members but denied them substantial extra benefits
that it gave to the nonunion employees it permitted to
work during the lockout. The Respondent’s asserted
business purpose—to reward those employees who, it
perceived, were working hard and in difficult cir-
cumstances—cannot stand as a sufficient justification
for the granting of benefits in support of an unlawful
lockout. The Respondent’s discriminatory conferral of
the May 4 bonus package violated Section 8(a)(3).10
With respect to the 8(a)(1) allegation, we focus on
the objective impact of the Respondent’s granting of
the bonus package apart from any subjective motiva-
tion. Awarding benefits to employees it permitted to
continue working, while withholding those benefits
from employees it had unlawfully locked out, had a
reasonable tendency, during and after the lockout, to
interfere with the unit employees’ exercise of Section
7 rights, particularly their right to maintain their union
membership.11 Accordingly, the conferral of the bonus
package violated Section 8(a)(1) independent of the
8(a)(3) violation above.
Concerning the complaint’s 8(a)(5) allegation, it is
stipulated that the bonus package was not part of the
‘‘final offer’’ the Respondent implemented on April 21
following bargaining impasse. It is further stipulated
that unit employees who had resigned their union
membership and returned to work were among those
who received the bonus package, and that the Union
was not informed or given an opportunity to bargain
concerning the package prior to its distribution. We
have already found that the bonus package constituted
compensation, rather than a ‘‘gift’’ as the Respondent
contends, and as such it is a term and condition of em-
ployment over which the Respondent was required to
bargain with the Union.12 Taking the above into ac-
count, the Respondent’s granting of the bonus package
to certain of the unit employees was a unilateral
change in terms and conditions of employment in vio-
lation of Section 8(a)(5).
CONCLUSIONS OF LAW
1. By the statements in its memorandum dated April
26 that solicited employees’ resignations from the
Union and promised consideration of employment for
those who resigned and threatened those who did not,
and by its award of a bonus package on May 4 to non-
union employees while withholding it from employees
who were union members, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. By locking out employees who were union mem-
bers beginning April 28 and conditioning their rein-
statement on resignation from the Union, and by
awarding a bonus package on May 4 to nonunion em-
ployees while withholding it from employees who
were union members, the Respondent has discrimi-
nated in regard to hire, tenure, and terms and condi-
tions of employment in order to discourage member-
ship in the Union, in violation of Section 8(a)(3) and
(1) of the Act.
3. By awarding a bonus package to certain unit em-
ployees on May 4 that changed their terms and condi-
tions of employment without prior notification to and
bargaining with the Union, the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 It is apparent from the parties’ stipulation that certain of the 10 employees
who resigned their union membership and returned to work were initially
locked out on April 28, and thus may be entitled to a measure of make-whole
relief. We will leave specific identification of these and the other unit employ-
ees entitled to relief to the compliance stage of this proceeding. In addition,
we note for compliance purposes that the stipulation states that unit employee
John Hernandez returned from a work-injury compensation program on May
20 and is considered to have been locked out as of that date.
14 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, we shall order it to
cease and desist and post an appropriate notice.
With respect to affirmative relief, the General Coun-
sel points out that the Respondent ended its unlawful
lockout and offered reinstatement to employees on or
about May 31. Accordingly, the General Counsel seeks
a make-whole order for all unit employees who suf-
fered a loss of earnings and other benefits because they
were unlawfully locked out between April 28 and May
31. We agree and will so order.13
With respect to the Respondent’s award of the bonus
package, in violation of Section 8(a)(1) and (3), we
agree with the General Counsel that rescission is an in-
appropriate remedy pursuant to Board order because of
its likely discordant impact on employees already af-
fected by the Respondent’s unfair labor practices. Ac-
cordingly, the appropriate affirmative remedy here is
the conferral of the same bonus package—$500 and an
additional week of paid vacation—on those unit em-
ployees whose ineligibility for the bonus package was
premised on the Respondent’s unlawful conduct, thus
restoring the statutorily required equality of treatment
between employees who exercised protected rights and
those who did not. See, e.g., Rubatex, supra at 835–
836; Swedish Hospital, supra at 22–23; Aero-Motive,
supra at 793.
Accordingly, the Respondent will be ordered, inter
alia, to make prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), and backpay to be
computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), where applicable.
ORDER
The National Labor Relations Board orders that the
Respondent, Schenk Packing Company, Stanwood,
Washington, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Making promises to and threatening employees
based on their union membership status and soliciting
their resignations from United Food and Commercial
Workers Union Local 44, affiliated with United Food
and Commercial Workers International Union, AFL–
CIO, CLC and conferring benefits on nonunion em-
ployees while withholding such benefits from employ-
ees who are union members.
(b) Discouraging membership in the Union by lock-
ing out employees who are union members and condi-
tioning their reinstatement on resignation from the
Union, and by awarding benefits to nonunion employ-
ees while withholding such benefits from employees
who are union members, or in any other manner dis-
criminating against employees with respect to wages,
hours, or terms and conditions of employment.
(c) Awarding benefits to unit employees that change
their terms and conditions of employment without
prior notification to and bargaining with the Union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole those employees who were unlaw-
fully locked out from April 28 until May 31, 1989, for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, and make
whole those employees who were discriminatorily de-
nied the bonus package awarded to other employees on
May 4, l989, in the manner set forth in the remedy
section of this Decision and Order.
(b) Remove from its files any reference to the un-
lawful lockout as it pertains to each affected employee
and notify the employee in writing that this has been
done and that the lockout will not be used against him
or her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Stanwood, Washington facility copies
of the attached notice marked ‘‘Appendix.’’14 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
493SCHENK PACKING CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT make promises to or threaten employ-
ees based on their union membership status and solicit
their resignations from United Food and Commercial
Workers Union Local 44, affiliated with United Food
and Commercial Workers International Union, AFL–
CIO, CLC and WE WILL NOT confer benefits on non-
union employees while withholding such benefits from
employees who are union members.
WE WILL NOT discourage membership in the Union
by locking out employees who are union members and
conditioning their reinstatement on resignation from
the Union, or by awarding benefits to nonunion em-
ployees while withholding such benefits from employ-
ees who are union members, or in any other manner
discriminate against employees with respect to wages,
hours, or terms and conditions of employment.
WE WILL NOT award benefits to unit employees that
change their terms and conditions of employment with-
out prior notification to and bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole those employees who were
unlawfully locked out from April 28 until May 31,
1989, for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them,
and WE WILL make whole those employees who were
discriminatorily denied the bonus package awarded to
other employees on May 4, 1989.
WE WILL remove from our files any reference to the
unlawful lockout as it pertains to each affected em-
ployee and notify the employee in writing that this has
been done and that the lockout will not be used against
him or her in any way.
SCHENK PACKING COMPANY