Birkenwald Distributing Co.

National Labor Relations Board - Board Decisions

Feb 4, 1987

282 N.L.R.B. 954 (N.L.R.B. 1987)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Birkenwald, Inc. d/b/a Birkenwald Distributing
Company and General Teamsters Local 174,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 19-CA-13849
4 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 28 April 1982 Administrative Law Judge
William J. Pannier III issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
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 brief and has
decided to affirm the judge's rulings , findings, and
conclusions, as modified, and to adopt the recom-
mended Order.
The primary issue in this case is whether, in the
absence of any union animosity, the Respondent le-
gally could hire temporary replacements for its
locked-out employees to continue its operations
during a lawful lockout. The General Counsel has
taken the position that such action by the Respond-
ent constitutes a violation of Section 8(a)(1) and (3)
of the Act. The judge disagreed and dismissed the
complaint in its entirety. Although we agree with
that dismissal, we do so on a basis different from
that set out by the judge . In dismissing the case,
we instead rely on the recent Board decision in
Harter Equipment, 280 NLRB 597 (1986), in which
we held that an employer lawfully may hire tempo-
rary help during a lawful lockout.
As more fully developed by the judge, the mate-
rial facts are undisputed. The drivers and warehou-
semen assigned to the Respondent's Seattle, Wash-
ington facility were represented by the Union. The
Union and the Respondent had a history of collec-
tive bargaining. Since late 1980, they had been en-
gaged in negotiations for a new collective-bargain-
ing agreement affecting these employees. There is
no evidence of union animus in their contract ne-
gotiations. After the negotiations session held on 21
July 1981,1 the Respondent submitted a "last and
final" contract proposal, which the Union and its
membership rejected on 11 August. On that same
date, the Union took a strike vote, which passed.
At that time, a date for the commencement of the
strike was not specifically designated. Fearing a
' All dates are in 1981 unless otherwise indicated
strike being called during its upcoming peak busi-
ness season, 2 the Respondent initiated a lockout
and hired temporary replacements3 for its, drivers
and warehousemen to continue its operations
during the lockout. The lockout was in effect from
23 August until 11 October, at which time the Re-
spondent reinstated the locked-out employees.
During and after the lockout the parties continued
their contract negotiations but had not reached a
new agreement by the time of the hearing.
The General Counsel asserts that, under the cri-
teria set forth in Oshkosh Ready-Mix Co.,4 the Re-
spondent's use of temporary replacements during
the lockout was inherently destructive of employ-
ees' Section 7 rights and therefore violative of Sec-
tion 8(a)(1) and (3). The judge rejected this per se
approach argued by the General Counsel. Instead,
the judge used an analysis similar to the balancing
test adopted by former Chairman Miller in his con-
curring opinion in Inter Collegiate Press.5 The
judge found that the Respondent's asserted business
justification for instituting the lockout and hiring
the temporary replacements, i.e., to ward off poten-
tial adverse consequences from an employee strike
occurring during the Respondent's peak business
season, was valid and outweighed any statutory
employee interest involved when, as here, a bar-
gaining representative's supporters were deprived
of work. Alternatively, the General Counsel sub-
mits that if the judge's balancing test is endorsed
by the Board, then the judge misapplied it in any
event when he found no violation.
As set forth in Harter Equipment, supra, a Board
majority recently adopted neither the approach ad-
vanced by the General Counsel nor that relied on
by the judge. Rather, that decision stands for the
proposition that absent specific proof of antiunion
motivation, an employer lawfully can use tempo-
rary replacements to engage in business operations
during a lawful lockout. The Board also found that
using temporary employees during such a lockout
in order to bring economic pressure in support of
legitimate bargaining demands "(1) is a measure
reasonably adapted to the achievement of a legiti-
mate employer interest and (2) has only a compara-
tively slight adverse effect on protected employee
rights." Harter Equipment, supra. Applying this
principle to the facts of this case, we uphold the
judge's dismissal.
3 The Respondent's peak season commences in late October and con-
tinues until New Year's Day
a The parties agreed that the replacements were temporary help.
4 179 NILRB 350 (1969), enfd. 440 F 2d 562 (7th Cir 1971), cert
denied 404 U.S. 858 (1971).
5 199 NLRB 177 (1972), enfd. 486 F 2d 837 (8th Cir. 1973), cert
denied 416 U.S. 938 (1974)
282 NLRB No. 130
BIRKENWALD DISTRIBUTING CO. 955
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER STEPHENS , concurring.
I recognize that Harter Equipment, 280 NLRB
597 (1986), controls this case acid was therefore
properly followed here . I have not yet decided
whether I agree with the Harter principle that, in
the absence of proof of antiunion motive, an em-
ployer is, under all circumstances , free to hire tem-
porary replacements during a lockout . As explained
by my colleagues , however , the judge dismissed
the complaint essentially under the approach of
Chairman Miller in Inter Collegiate Press, 199
NLRB 177, 177-178 (1972). I agree that the com-
plaint was properly dismissed under that -theory
and thus find it unnecessary to consider whether I
agree with Harter.
Daniel R. Sanders, Esq., for the General Counsel.
William 17. Simmons, Esq., of Seattle Washington, for the
Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge.
This matter was heard by me in Seattle, Washington, on
January 6, 1982. On September 30, 1981,1 the Acting Re-
gional Director for Region 19 of the National Labor Re-
lations Board issued a complaint and notice 'of hearing,
based on an unfair labor practice charge filed on August
26, alleging violations of Section 8(a)(l) and (3) of the
National Labor Relations Act (the Act). All parties have
been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based on the entire record, the briefs filed on
behalf of the parties, and my observation of the demean-
or of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDI(;TTON
At all times material, Birkenwald, Inc. d/b/a Birken-
wald Distributing Company (Respondent) has been a
Washington corporation with offices and a place of busi-
ness at Seattle, Washington, where it is engaged in the
business of wholesale distribution of wine. During the
12-month period preceding issuance of the complaint, a
representative period, in the course and conduct of its
business operations, Respondent derived gross revenues
in excess of $500,000 and, additionally, purchased and
caused to be transferred and delivered to its Washington
facility, either directly from sources outside the State of
Washington or from suppliers within that State which, in
' Unless otherwise stated, all dates occurred in 1981
turn, ' bad obtained those goods and materials directly
from sources outside that State , goods and materials
valued in excess of $50,000. Therefore, I find that at all
times material , Respondent has been an employer en-,
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
At all times material, General Teamsters Local 174,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union) has
been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
This case presents an opportunity for renewal of the
debate concerning the ability of employers to continue
operations with temporary replacements after having
locked out represented employees. Specifically,' the issue
here is whether Respondent violated Section 8(a)(3) and
(1) of the Act by hiring temporary replacements for em-
ployees that it lawfully had locked out2 due to its fear of
the adverse effects of a strike on its business should a
work stoppage be initiated by the Union during Re-
spondent's upcoming peak season of operation. In the
complaint, it is alleged that by utilizing those replace-
ments Respondent had engaged in conduct that "tends to
discourage Union membership among its [locked out 'em-
ployees]" and, further, that "is inherently destructive of
employees' rights guaranteed under Section 7 of the
Act."
The operative facts giving rise to this proceeding are
straightforward and, for the most part, not in dispute.
The Union had been the incumbent representative of all
drivers and warehousemen employed at Respondent's Se-
attle facility. Essentially, those employees perform the
duties of receiving wine delivered to that facility, stock-
ing the various types and sizes of it at appropriate desig-
nated locations in the warehouse, selecting appropriate
types and sizes of wine to be loaded on Respondent's
trucks for delivery to its customers, making those deliv-
eries, and, when necessary, collecting payment from cus-
tomers for wine delivered to them. In November 1980,
Respondent and the Union had initiated negotiations for
a collective-bargaining agreement to succeed the one to
which they were then parties. s Negotiating sessions were
2 Although the fact of a lockout commencing on August 24 is pleaded
in the complaint, that particular paragraph is not included among those
alleged as describing conduct that violated the Act. Moreover, at the
commencement of the hearing, the General Counsel stated that "the Gen-
eral Counsel is not contending the lockout itself was unlawful."
2 In 1977, Respondent had withdrawn from multiemployer bargaining
with the Union. The legality of that withdrawal had become the subject
of an unfair labor practice proceeding that had resulted in a Board deter-
mination that Respondent's withdrawal had been unlawful Birkenwald
Distributing Co., 243 NLRB 1151 (1979). However, enforcement of the
Board's Order was denied by the United States Court of Appeals for the
Ninth Circuit on the basis that the Union's action of entering into "a sep-
arate permanent agreement" with "the largest member of the unit" (Pre-
mium Distributors) had "effectively fragmented and destroyed the integ-
Continued
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted on November 25 and December 29, 1980, and
on January 22, April 23, and July 9 and 21. During the
course of them, both sides presented proposals and both
sides made compromises. There is no allegation that the
bargaining had not conformed to the requirements of the
Act. In fact, at the April session, the parties had reached
agreement on an immediate wage increase that had the
effect of raising unit employees' wages to the levels of
those recently negotiated for other area employees.
After the July 21 meeting, Respondent presented "a
last and final proposal" to the Union. At a meeting held
on August 11, that proposal was rejected by the unit em-
ployees, who, during the same meeting, voted unani-
mously in favor of a strike, although no date for com-
mencing one had been set at that time.4 Although the
Union never officially communicated the fact of the
strike vote to Respondent, Edward L. Anderson, Re-
spondent's operations manager, testified that, based on
"innuendos and . . . one specific statement" by unit em-
ployees, Respondent had felt "that [a strike] was a very
strong possibility ...." Schmidt, in essence, did not dis-
pute that informal communication of the results of the'
strike vote to Respondent had occurred: "I'm sure in the
course of working the drivers would have passed it on to
the company that they had taken a strike vote."
The possibility that it might confront a work stoppage
had been one that had not earlier escaped Respondent's
notice. Schmidt agreed that during the negotiations, Re-
spondent's representative had stated that it was not
"going to give the Union the opportunity to strike [Re-
spondent] during the busy season. That [Respondent
was] going to, take whatever action necessary that [it]
felt [it] had 'to do." More specifically, Business Agent
Tony Giambone described one meeting at which Re-
spondent's, representative had said, with reference to the
possibility of a , strike during Respondent's busy season,
"We're not going to get caught short. In the event of
something happening, we're not going to get caught nap-
ping." Giambone testified that the Union's negotiators
had, replied that they did not know what Respondent's
representatives were talking, about. Moreover, the
Union's representatives denied specifically that they had
ever threatened to commence a work stoppage at Re-
spondent and there is no evidence that would serve to
contradict that denial. On the other hand, at no point did
rity of the bargaining unit," leaving "the remaining members of the unit
... privileged to withdraw [from it] .. " Seattle Auto Glass v NLRB,
669 F 2d 1337 (1982) After its withdrawal from the multiemployer
group, Respondent had executed a separate agreement with the Union
that had been in effect during pendency of the Board proceeding con-
cerning Respondent's withdrawal from that group. Although that sepa-
rate agreement had provided lower economic terms than that one
reached by the Union with the remaining members of the multiemployer
group, Respondent had agreed to retroactively pay the differences if it
failed to prevail in the unfair labor practice proceeding The negotiations
that commenced in 1980 were intended to reach an agreement for a con-
tract to succeed that separate agreement.
4 Ordinarily, following an employee vote in favor of sinking, the
Union's executive board must seek strike sanction from its International
to receive strike benefits from it However, that sanction already had
been accorded in 1977, in connection with the dispute involving Re-
spondent's withdrawal from the multiemployer group, with the result
that, as the Union's business agent, Rodney J Schmidt , agreed, following
the August I1 election, the Union was in a position to strike at any time
Schmidt, Giambone, or any other witness claim that the
Union's officials had ever extended assurances that the
Union would not call a strike against Respondent during
the latter's peak season of operation.
Respondent's peak season commences in late October
and continues until New Year's Day. During that ap-
proximately 2-month period, there is a 43.8 percent in-
crease in business volume and Respondent derives ap-
proximately 30 percent of its annual revenues. So great is
the increase in business volume that during that period
Respondent schedules certain days when it will not de-
liver less than full cases to customers "to eliminate the
burden of having to pull split cases." Furthermore, the
impact on Respondent's seasonal operation is not con-
fined to events occurring between late October and New
Year's Day. For, Anderson testified without contradic-
tion that Respondent's customers "develop their display
schedule weeks ahead of time and if we were in a strike
situation, there's no question we would not get an ad be-
cause they'd be afraid we wouldn't be able to deliver. If
you don't get an ad, you're out of business as far as floor
displays are concerned."5
Following the August 11 employee meeting, the Union
notified Respondent that its "last and final proposal" had
been rejected, but stated that it had a new proposal to
submit to Respondent. When the latter expressed willing-
ness to examine it, the proposal had been delivered to
Respondent. Nothing further was heard from Respond-
ent until August 23, when the Union learned from unit
employees that they had been locked out. So far as the
record discloses, at no point prior to implementing the
lockout did Respondent notify the Union of that possibil-
ity. Following the lockout, it continued operations, using
as temporary replacements employees who had been
working as strike replacements for Premium prior to res-
olution of the latter's own labor dispute withthe Union
in July. In this manner, according to Respondent's coun-
sel, Respondent "was able to pick up some experienced
drivers and warehousemen from Premium that were laid
off at Premium," With respect to the subject of replace-
ments, Anderson testified that had a strike occurred
during its peak season Respondent would have had to
"shut down for a time period to get organized," and he
estimated that a 1- to 2-week period would have been re-
quired inasmuch as
... we've never been in a situation where we've
had to bring in a lot of people at one time . Usually
when we hire a new-hire they work in several dif-
ferent capacities and work into a particular position.
But if you're going to start cold, I think, you're
looking at a couple of months, maybe three months,
before you have to be-before you have really pro-
ficient people.6
S To the extent that, on review, a question might be raised regarding
possible hearsay implications of this testimony , see NLRB Y. Operating
Engineers Local 12, 413 F.2d 705, 707 (9th Cir 1967).
6 Anderson's estimate about the length of time that would be needed to
train a new employee to become proficient in Respondent 's operation did
not go unchallenged Warehouse Manager Kenneth L Brooks Sr, a unit
employee notwithstanding his title, and driver Harmon C Bale each testi-
Continued
BIRKENWALD DISTRIBUTING CO. 957
Despite the commencement of the lockout, the parties
continued meeting in an effort to reach agreement for a
contract. The last such meeting prior to commencement
of the hearing in this matter had been conducted on De-
cember 21. Meanwhile, the lockout had ended on Octo-
ber 11, according to a stipulation of the parties, "on the
assurance that a strike would not follow." Based on the
foregoing sequence of events, Respondent argues that it
"views the lockout as defensive in nature, a necessary
action of protection and defense."
B. Analysis
1. Methodology of analysis
Whether it is a violation of the Act to temporarily re-
place lawfully locked out employees is an issue that has
not enjoyed unanimity of viewpoint. In American Ship
Building Co. v. NLRB, 380 U.S. 300 (1965), the Supreme
Court specifically reserved determination of that issue:
"Contrary to the views expressed in a concurring opin-
ion filed in this case, we intimate no view whatever as to
the consequences which would follow had the employer
replaced its employees with permanent replacements or
even temporary help." Id. at fn. 8. Since then, the Board
members and circuit courts of appeal that have addressed
the issue have been so divided as to result and methodol-
ogy of analysis regarding the issue that it cannot even be
said that there presently is a Board majority approach to
follow in resolving it, save in the very broadest sense.
Thus, two Board members adopted the position, in es-
sence , that it is per se lawful to temporarily replace law-
fully locked-out employees. "Having concluded that the
resulting harm to employee rights by the lockout and
continued operation by use of temporary replacements
was comparatively slight, and being of the view that
there is insufficient evidence of improper motivation, we
hold that Respondent did not violate Section 8(a)(1) and
(3)." Ottawa Silica Co., 197 NLRB 449, 451 (1972), enfd.
482 F.2d 945 (6th Cir. 1973). "Rather, we find . . . that
absent antiunion motivation, which is not shown here, an
employer does not violate Section 8(a)(3) or (1) of the
Act by hiring temporary replacements to continue oper-
ations during an otherwise lawful lockout." Inter-Collegi-
fled, in essence, that it did not take as long to train a newly hired em-
ployee as Anderson had portrayed. The difficulty with this testimony is
that, so far as the record discloses, neither of these witnesses ever had to
train an entirely new complement of employees, as opposed to situations
where a single employee trained to work as part of a complement of em-
ployees who have been working regularly for Respondent Further, even
in the latter type of situation, though Brooks estimated that it normally
took but a day to train a driver who had experience delivering beer to
deliver wine for Respondent, he conceded that it takes a week to train a
bottle puller and from 5 to 7 working days to train an employee to per-
form the function of stocking wine, after it is delivered to Respondent's
facility to the point where "he would do it during a given period of time
without any more than a normal amount of mistakes[ I" Moreover,
Brooks acknowledged that to obtain temporary replacement drivers, Re-
spondent "always used exclusively the [Union's] hiring hall and now I
have a list of members that are out of work and I have a contact through
which he dispatches people either on strike or out of work for whatever
reason and we use, more or less, the same people over and over" Of
course, in the event of a work stoppage initiated by the Union, this pool
of experienced temporary replacements presumably would not be avail-
able to Respondent
ate Press, 199 NLRB 177 (1973), enfd. 486 F.2d 837 (8th
Cir. 1973).
Two other Board members have concluded that the
replacement of lawfully locked-out employees, even if
temporarily, is a per se violation of the Act: ". .. we
would find in accord with the court's reasoning in
[Inland Trucking Co. v. NLRB, 440 F.2d 562 (7th Cir.
1971), cert. denied 404 U.S. 858 (1971)] that Respond-
ent's use of some replacements to continue partial oper-
ation was inherently destructive of the rights of its regu-
lar employees." Ottawa Silica Co., supra, 197 NLRB at
453. "By hiring replacements, Respondent discriminated
by selecting employees who will work under the terms
and conditions it has imposed while refusing to employ
those employees who are attempting to engage in the
protected and concerted activity of bargaining for a
more favorable contract." Ralston Purina Co., 204 NLRB
366, 367 (1973) (dissenting opinion of Members Fanning
and Jenkins).
Relying on the Supreme Court's analysis in NLRB Y.
Brown Food Stores, 380 U S. 278 (1965), then Chairman
Miller concluded that a per se approach to the issue of
temporary replacement of locked-out employees had
been rejected by the Court in favor of "balancing the
impact of such conduct by the Respondents on possible
discouragement of union membership against the impor-
tance and the legitimacy of the objectives of the employ-
er." Inter-Collegiate Press, supra, 199 NLRB at 177-178
(concurring opinion). It is this approach that had been
endorsed by the United States Court of Appeals for the
Eighth Circuit. Inter-Collegiate Press v. NLRB, 486 F.2d
837 (1973).
In the instant case, both the General Counsel and Re-
spondent argue, in essence , in support of a per se ap-
proach to resolution of the issue presented, albeit in op-
posite directions. Yet, a careful examination of the Su-
preme Court's treatment of the replacement issue in
American Ship Building and in Brown Food Stores appears
to negate per se treatment of the issue of retention of
temporary replacements for otherwise lawfully locked-
out employees. In an opinion concurring in the result
reached in American Ship Building, Justice White opined
that by the breadth of its opinion in that case, the major-
ty was sanctioning replacement of locked-out employees.
It had been in response to that assertion that the above-
quoted footnote, stating that the Court was not resolving
the replacement issue , had been included in the major-
ity's opinion in that case Clearly, had the majority flatly
agreed or disagreed with that assertion, believing that it
was per se lawful or unlawful to temporarily replace
locked-out employees, Justice White's concurring opin-
ion had provided it with an appropriate opportunity for
simply saying so. That the majority did not do so can
hardly be assumed to have been some form of arbitrary
judicial fiat. Rather, it can only be concluded that the
Court had been reserving final determination of the issue
until after the Board had exercised the expertise entrust-
ed to it by Congress as "the administrative entity ap-
pointed to apply and enforce a statue." Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980). Conse-
quently, the Court's treatment of the replacement of law-
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully locked -out employees issue in American Ship Build-
ing does not support a per se approach to its resolution.
Of course , that the Court did not resolve the issue fi-
nally in American Ship Building does not, of itself, serve
to preclude the Board from exercising its expertise and
determining that a per se approach is warranted where
operations are continued with temporary replacements
following a lawful lockout . But, the Court 's approach in
Brown Food Stores, where it confronted that very type of
conduct, would appear to preclude adoption of a per se
approach in favor of and a per se approach against find-
ing a violation of the Act in such situations . For, had the
Court intended to apply that type of analysis to the prob-
lem, it could have done so in that case and avoided bal-
ancing whether the employer's "conduct [was] reason-
ably adopted to achieve legitimate business ends or to
deal with business exigencies" against the replacements'
"tendency to discourage union membership . . . ." Id.
380 U.S. at 287-288. That the Court chose to balance
those considerations is some indication that it intends for
the Board to pursue a similar course of analysis when
confronting the same problem in other contexts.
Such a conclusion is not negated by the Court 's subse-
quent decision in NLRB v. Great Dane Trailers, 388 U.S.
26 (1967). For, while in Great Dane the Court identified
a category of employer conduct that would allow the
Board to "draw an inference of improper motive from
the conduct itself," id. 33-34, it nonetheless obliged the
Board , in considering that type of conduct , to consider
"counter explanations for [the employer 's] conduct in
this situation ... and exercise its duty to strike the
proper balance between the asserted business justifica-
tions and the invasion of employee rights in light of the
Act and its policy." Id. at 33-34. Thus, Great Dane made
no change in the methodology for analyzing the legality
of temporarily replacing lawfully locked -out employees.
Rather, it permitted the Board to infer that unlawful mo-
tivation was present , absent evidence to that effect, but
only after assessing the impact of employer conduct on
employee interests and only after weighing employer
business justification . In short , Great Dane does not
create a per se rule that obviates altogether the need to
consider and weigh business justification advanced in
support of employer conduct, but instead is confined to
the methodology for analyzing "the motivational ele-
ment" required for a conclusion that Section 8(a)(3) of
the Act has been violated. Id.7
2. The business justification advanced
To conduct the balancing analysis pursued by the
Court in Brown Food Stores, it is necessary to identify the
business or economic interest advanced by Respondent
and then to identify the affected interest of the locked-
out employees before attempting to undertake a balance
of the two . Moreover , in evaluating the employer 's justi-
fication , three subsidiary issues must be addressed:
whether the employer 's asserted justification is one cog-
7 Of course, as it is accurate that the Supreme Court denied the peti-
tion for certiorari in Inland Trucking Co, supra, "a denial of certiorari by
this Court imports no expression of opinion upon the merits of a case "
House Y Mayo, 324 U.S 42, 48 (1945)
nizable under the Act; whether the employer truly was
relying on the justification it advanced in having pursued
the course that it followed or, instead , is advancing it as
a pretext to conceal another reason for its conduct; and,
in a somewhat related vein , whether there are objective
considerations that support reliance on the justification
by the employer in the circumstances presented.8 Re-
garding the first one , the only purpose for Respondent's
lockout and temporary replacement of unit employees
supported by the record is that it had been concerned
with the adverse impact of work stoppage during its
peak season of operations . It appears now settled that
concern about an imminent work stoppage 's potential for
harmful effects on an employer 's business and customers
during the peak season of its operations has been recog-
nized as a valid business justification , at least, for locking
out employees . "The company, engaged in a highly sea-
sonal business, clearly faced the prospect of `unusual
harm' from a strike during its peak season when 70 per-
cent of its annual production is shipped in a two-month
period." Lewis Lane v. NLRB, 418 F.2d 1208, 1212 (D.C.
Cir. 1969); see also Inter-Collegiate Press, supra; Barn-
sider, Inc., 195 NLRB 754, 763-764 (1972). Moreover,
employers' "right to protect and continue [their]
business [es]" underlay the Supreme Court's conclusion
that the employers have a right to replace economic
strikers. NLRB v. MacKay Radio & Telegraph Co., 304
U.S. 333, 345 (1938). Consequently, protection from
harm caused by a work stoppage during the peak season
of operations is a business justification cognizable under
the Act.9
The second subsidiary issue is whether it can be said
that Respondent truly had been concerned with the im-
minency of a strike called during Respondent's peak
season . A preponderance of the evidence supports an af-
firmative answer . The Union's officers conceded that
during negotiations Respondent's representative had
voiced concern about the possibility of a strike during
"the busy season." The unit employees had voted unani-
mously in favor of a strike. Although the Union had
never notified Respondent officially of that fact, nor had
its officials ever told Respondent that a strike was con-
templated, Operations Manager Anderson testified that
Respondent had learned from unit employees that a
strike might be called. Anderson 's testimony in this re-
spect tends to be corroborated by that of Business Agent
Schmidt who acknowledged that he was certain that the
drivers had told Respondent of the strike vote result.
8 Of necessity , consideration of these subsidiary issues requires exami-
nation of some fact ordinarily considered also in evaluating the legality of
the lockout itself even though the latter is not an issue in this proceeding.
Lest there be any misunderstanding , the fact that such concern is a
business justification cognizable under the Act does not resolve the fur-
ther question of what action employers motivated by it may take to pro-
tect their interests Clearly, its existence does not provide a basis for
taking any type of action that employers deem fit, such as discharging
unit employees altogether , or engaging in other reprisals against them
See, e.g., Red Cab, Inc., 194 NLRB 279 (1971) At this point, analysis if
targeted exclusively at the subsidiary issue of whether concern about the
adverse effects on peak season operations caused by an imminent work
stoppage is a business justification cognizable under the Act. The further
question of whether its presence then justified the action that Respondent
took , temporarily replaced the locked-out employees is considered infra.
BIRKENWALD DISTRIBUTING CO.
Moreover, there is no evidence that when Respondent's
representative had voiced concern about a strike during
negotiating meetings the Union's officials had ever as-
sured Respondent that no strike would be called during
"the busy season." In these circumstances-where Re-
spondent had been aware of the employees' strike vote,
had voiced concern to the Union regarding the possibili-
ty of a strike during the peak, season of operation, and
had not been told that a strike would not occur-I con-
clude, particularly in the absence of evidence that Re-
spondent harbored hostility toward the Union or toward
the concept of collective bargaining, that a preponder-
ance of the evidence supports a finding that Respondent
actually had been motivated by concern that the Union
would call a strike during the peak season of oper-
ations.l °
In most cases involving allegations that Section 8(a)(3)
of the Act has been violated, once it is concluded that an
employer's motivation is other than one proscribed by
the Act, further analysis can be concluded inasmuch as
"Board law does not permit the trier of fact to substitute
his own subjective impression of what he would have
done were he in Respondent's. position." Super Tire
Stores, 236 NLRB 877 fn. 1 (1978). However, in this
area, where "the use of temporary nonunion personnel in
preference to the lock-out union members is discrimina-
tory," NLRB v. Brown Food Stores, 380 U.S. at 288, a
more rigorous analysis of the employer's defense is war-
ranted. That is, even though the employer truly may be
motivated by nondiscriminatory, reasons, the nature of its
conduct and its potential-effect on it employees is such
that its justification must be subjected to closer scrutiny
to determine whether, in the circumstances, it can be
said that the employer's action was reasonably based on
objective considerations.
In the instant case, I conclude that a preponderance of
the evidence supports not only the conclusion that Re-
spondent truly had been motivated by fear of a strike
during its peak season, but also that objective, consider-
ations disclose that Respondent's belief had been a rea-
sonably based one. The unit employees had voted unani-
mously in favor of a strike. The ' Union possessed con-
tinuing strike sanction from its International, arising
during the course of the dispute that had commenced in
1977. Although it had never threatened to strike during
Respondent's peak season, it had never disavowed such
action when the question of whether such a strike might
occur had been raised by Respondent's representative
during negotiations. Moreover, the unit employees had
been discussing the possibility of a strike. Based on these
objective considerations, it cannot be said that, viewed
from an August perspective, a strike during Respondent's
approaching peak season ,had been either an implausible
possibility or an event unlikely to occur.
However, the lockout and temporary replacement had
occurred in late August and Respondent's busy season
was not scheduled to commence until 2 months later.
10 This conclusion is fortified by the parties' stipulation that Respond-
ent had ended the lockout on October 11 once the Union had given oral
assurance that it would not commence a work stoppage during Respond-
ent's peak season.
959
Accordingly, at first blush, it might appear that Re-
spondent had acted too far in advance of its business jus-
tification need for it to be concluded that its conduct had
been reasonably based on objective considerations. Fur-
ther analysis, however, discloses certain factors that mili-
tate in favor of a contrary conclusion. Respondent's busi-
ness during its peak season can be affected adversely not
only 'by events occurring between late October and New
Year's Day. As set forth in section III, supra, the volume
of its business during its peak season is dependent, at
least in part, on inclusion of its ads when customer dis-
play schedules are developed prior to late October. Ob-
viously, if included in such ads, a strike during the peak
season, itself, would prevent Respondent from fulfilling
its obligations to customers, to the detriment of them as
well as of Respondent. Beyond 'that, it is undisputed that
if customers believed that Respondent might not be able
to fulfill its commitments during the peak season,' then
Respondent's ads might be excluded from customer dis-
play schedules. Thus, late summer and early fall rumors
of a possible strike against Respondent during its peak
season could have as injurious an effect on its business as
an actual strike during the peak season because such
rumors could cause customers to preclude Respondent's
products from their display schedules, thereby leaving
Respondent with no floor display business to conduct
during the peak, season.
Moreover, in order, to conduct operations in the event
of a strike-which, of course, it would have been enti-
tled to do-Respondent would have had to locate and
train replacements. Even accepting Brook's and Bale's
accounts of the minimal time needed to train a newly
hired employee, the process of locating and training
strike replacements would not have been as simple as the
General Counsel portrays. For, as noted in footnote 6,
supra, Brooks' and Bale's experiences concerning the
time absorbed in training pertained to situations where
only one individual had to train to work with an experi-
enced employee complement. In the event of a strike, of
course, an entirely new complement would have had_ to
be trained. Obviously, in such circumstances, the difficul-
ty of doing so would have been magnified greatly from
that which exists where only a, single new hire must be
trained. Moreover, Respondent's concern about the
length of time needed for training would have been
heightened even further by the fact that, as a unit em-
ployee, Brooks might be expected to join any strike
called by the Union, thereby depriving Respondent of its
warehouse manager and eliminating his availability as an
individual to conduct training of newly hired replace-
ments.
Nor, in the event of a strike, would Respondent's diffi-
culties be -limited to training problems. Replacements
would have to be located as well. Respondent could not
anticipate that their location would be a simple matter
inasmuch as its normal source of replacement employ-
ees-the Union's hiring hall-presumably would not
have been available to it. In this regard, it, is noteworthy
that in August Respondent had, available to it as replace-
ments the recently released replacement employees who
had been working for Premium during the Union's strike
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against it. There is no basis for assuming, and no evi-
dence has been provided to show, that this already
trained pool of employees would have continued to be
available to Respondent had it waited to see if the Union
actually would call a strike during the peak season.
The foregoing considerations served to nullify any
conclusion reached solely on the basis that Respondent's
lockout and temporary replacement had been conducted
too far in advance of its peak season to be justified by
business or economic considerations. Operations during
the peak season are affected by Respondent's ability be-
forehand to secure floor display ads. That, in turn, is af-
fected by customer perceptions that Respondent will be
able to meet its commitments between late October and
New Year's Day. Thus, by acting when it did, Respond-
ent was able to demonstrate to its customers that it
would be able to meet commitments made for peak
season service to them while, at the same time, assuring
itself of the-services of an experienced cadre of employ-
ees, with allowance of sufficient time prior to com-
mencement of the peak season for whatever training of
those employees was necessary to acquaint them in the
nuances of Respondent's methods of operating.
Therefore, I conclude that a preponderance of the evi-
dence shows that in replacing its employees, Respondent
has advanced a business justification cognizable under
the Act; that, in fact, it had been relying on that justifica-
tion in following the course that it had pursued in late
August; and, that it cannot be said that objective consid-
erations demonstrate that Respondent had been unrea-
sonable or had acted too precipitously in taking action.
3. The relation of the action taken to the
justification advanced
Having resolved that it cannot be said " that the justifi-
cation advanced by Respondent is not one precluded
from consideration under the Act and that Respondent's
concern was not without support in the circumstances,
the next question logically presented is whether the
action taken by Respondent-hiring temporary replace-
ments-was one reasonably adapted to the achievement
of that business justification . For, if the action taken
cannot be said to have been related to the justification
advanced by an employer for having done so, then there
might well be a basis for concluding that the infringe-
ment on locked-out employees ' statutory interests is too
great, or even for inferring that the justification is being
advanced as a pretext. By way of example , had Respond-
ent continued employing replacements after New Year's
Day, there might well be a basis for deciding that the re-
tention of replacements , even of ones hired only for the
duration of the lockout , had exceeded the exigencies of
the' justification advanced by it. It might also be conclud-
ed, in such an event, that, in locking out and replacing
unit employees , Respondent never had been concerned
with the justification that it now advances.
As found above, Respondent 's justification for its con-
duct had been its concern with being able to continue
operating and meeting its commitments for peak season
business. In view of the absence of assurance by the
Union that the employees whom it represented would
continue to be available for work during that period, by
hiring replacements Respondent was able to achieve that
objective. All agree that the replacements hired had been
temporary ones. There is no evidence that Respondent
had contemplated their continued employment once its
peak season had concluded. To the contrary, Respondent
had reinstated the locked-out employees once it had re-
ceived assurance that they would continue working
through its peak season. In these circumstances, there is
no basis for concluding that Respondent's action had not
been related to the exigencies of the justification which it
advances for having done so.
Notwithstanding that conclusion, there still remains
the question of whether Respondent's business justifica-
tion outweighs the statutory employee interests involved.
To conduct that weighing process, those statutory inter-
ests first must be identified.
4. The statutory interests of the employees
Those cases that have addressed the issue of replace-
ment of locked-out employees have listed a variety of
employee interests affected by such conduct: compelling
locked-out employees to modify or possibly forgo alto-
gether their own bargaining proposals and to accept
those made by their employer; 111 destroying employee
initiative over whether and when to commence strike
action;112 foreclosing employee opportunity to earn a
living by continuing to work, while the employer is not
compelled to surrender its corresponding opportunity to
continue its operations;'-9 causing potential loss of em-
ployee enthusiasm for union membership and support of
their bargaining representative, with resultant diminution
of its bargaining capacity and rep *esentative status; 14
and, precluding employees represe ted by a bargaining
representative from continuing to ork while allowing
the employer to select others who will do so, thereby
forcing employees in the former classification to suffer a
detriment because they exercise- their statutory right to
11 In
Oshkosh Ready-Mix Co.,, 179 NLRB 350, 358 (1969), enfd. 440
F.2d 562 (7th Cir. 1971), cert. denied 404 U.S 858 (1971'), the Board
stated:
[w]here the employer, as here, locks out his employees with the pur-
poses of forcing them to accede to his terms and at the same time is
able to demonstrate , by continued operation through other employ-
ees, that resistance to the employer 's terms, whatever they might be,
is unlikely of success, if not hopeless, and reemployment can be ob-
tained only by concessions to the employer 's terms, the necessary, if
not the almost inevitable, tendency of the employer's conduct would
be capitulation.
iz The Board stated in Ruberoid Co, 167 NLRB 987, 993 (1967) "In a
strike against an employer , the employees, usually through their repre-
sentative, constitute the protagonist in the dispute, and to the extent their
rights may be destroyed , this is but a foreseable consequence of their own
actions " Oshkosh Ready-Mix Co.., supra, 179 NLRB at 357.
19 Such action "permit[s] the employer to impose on his employees the
pressure of being out of work while obtaining for himself the returns of
continued operation . Employees would be forced to watch other
workers enjoy the earning opportunities over which the locked out em-
ployees were endeavoring to bargain ." Inland Trucking Co.' v. NLRB,
supra, 440 F 2d at 564.
14 As stated in Oshkosh Ready-Mix Co., supra, 179 NLRB at 358.
[S]uch 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 responsible representation" and be "de-
monstrably so destructive of collective bargaining" (380 U.S at 309)
as .to carry its own indicia of illegal motivation in violation of the
Act
BIRKENWALD DISTRIBUTING CO. . 961
support a collective-bargaining representative.15 No
doubt of these interests are ones that would concern em-
ployees . Yet, not all of them are interests that can be
characterized as being statutory-as ones protected by
the Act--and in some instances, insufficient analysis of
the generalized conclusionary characterization has been
undertaken.
Employees may well be compelled to modify or aban-
don their own proposals and may even be forced to
accept those being made by their employer . Yet "the
right to bargain collectively does not entail any 'right' to
insist on one's position free from economic disadvan-
tage." American Ship Building, supra, 380 U.S. at 309.
Employees have no right under the Act to compel ac-
ceptance of their own proposals . Nor, so long as the Act
is not otherwise violated by, for example , discriminatory
conduct or bad-faith bargaining , does it guarantee that
employees will not have to accept proposals made by
their employer . Absent unlawful conduct , the Act leaves
the parties free from Board interference with "the sort of
economic weapons [they] can use in seeking to gain ac-
ceptance of their bargaining demands .", NLRB v. Insur-
ance Agents, 361 U.S . 477, 497 (1960); see also NLRB v.
Brown Food Store, supra , 380 U.S . at 283.
Similarly, although the strike is an economic weapon
protected specifically by the Act and one'that employers
are not free to restrict absolutely at will , "there is noth-
ing in the statute that would imply that the right to
strike `carries with it' the right exclusively to determine
the timing and duration of all work stoppages ." American
Ship , Building, supra, 380 U.S. at 310. Thus , that employ-
ees may not have the opportunity to be "the protagonist
in the dispute" is a nonstatutory consideration that may
not be weighed in balancing the statutory interests of the
employees against the business or economic justification
of the employer in striking the balance contemplated in
this area.
Unquestionably , locked-out employees are deprived of
their ability to earn a living by continuing to work for
the employer who had locked them out . Yet, the Act is
not intended to promote full employment. Indeed , it does
not even guarantee employment with a particular em-
ployer . For example, "[m]anagement can discharge for
good cause , or bad cause, or no cause at all. It has, as
the master of its own business affairs, complete freedom
with but one specific , definite qualification : it may not
discharge when the real motivating purpose is to do that
which Section 8(a)(3) forbids." NLRB v. Columbus
Marble Works, 233 F . 2d 406, 413 (5th Cir. 1956). Thus, at
the most, the Act prohibits employment from being used
as the vehicle to deprive employees of statutory rights.
In the process , however , employment does not, itself,
become the statutory right of employees . To instead,
focus on employees ' loss of continuing employment as
the employee interest at stake is to elevate the means and
substitute it for the prohibited end.
15 As stated in the dissent in Ralston Purina Co., supra at 367:
By hiring replacements , Respondent discriminated by selecting em-
ployees who will work under the terms and conditions it has im-
posed while refusing to employ those employees who are attempting
to engage in the protected and concerted activity of bargaining for a
more favorable contract.
'In addition , employees do not have a statutory right to
insist that their employers not operate . For example, al-
though employees can strike, employers have the right
to attempt to continue their operations by hiring strike
replacements . NLRB v. MacKay Radio & Telegraph Co.,
304 U.S. 333 , 345 (1938). "Even the Board concedes that
an employer may legitimately blunt'the effectiveness of
an anticipated strike by stocking inventories , readjusting
contract schedules , or transferring work from one plant
to another, even if he thereby makes himself `virtually
strikeproof."' NLRB v. Brown Food Stores, supra, 380
U.S. at 283 . Undoubtedly, continued operation by an em-
ployer while its locked -out employees are not working
may create an imbalance in their positions . Yet, the
Board is prohibited' from "introduc[ing] some standard of
properly `balanced ' bargaining power, or some new dis-
tinction of justifiable and unjustifiable, proper and 'abu-
sive ' economic weapons into the collective bargaining
duty imposed by the Act." NLRB v. Insurance Agents,
supra.
Furthermore, the picture portrayed-of employees de-
prived of ability to earn a livelihood while their employ-
er freely continues to operate its business in a normal
fashion-in advancing this theory is not wholly accurate.
As is the case with strikers, strike benefits can be made
available to locked-out employees . Like strikers, locked-
out .employees are free to seek interim or even perma-
nent employment elsewhere . Moreover, just as employ-
ers confronted with a strike can lock out the striking, em-
ployees , so too can locked-out employees declare a strike
and commence picketing the employer who has locked
them out . Finally, as the only concrete analysis of this
particular theory tended to show, it is not so simple a
matter for employers to secure qualified replacements
and to continue in business with them in a normal fash-
ion. Inter-Collegiate Press, supra, 486 F.2d at 846 fn. 14.
In sum, concern with employees being without work
while their employer continues to operate its business is
not encompassed within the rights guaranteed to employ-
ees by the Act and, further, is not a wholly accurate por-
trayal of what occurs in these types of situations.
Contrary to the three foregoing employee -interests,
which are not statutory ones, the Act is concerned with
employer-conduct that causes employee disaffection from
the bargaining representative and the collective -bargain-
ing process envisioned by the Act . However, any analy-
sis based on this statutory interest must be approached
carefully inasmuch as the Supreme Court has "consist-
ently construed [Sec. 8(a)(3) of the Act] to leave un-
scathed a wide range of employer actions taken to serve
legitimate business interests in some significant fashion,
even though the act committed may tend to discourage
union membership ." American Ship Building , supra, 380
U.S. at 311. Further , "[t]o establish ... a violation of §
8(a)(1), it must be shown that the employer has inter-
fered with , restrained , or coerced employees in the exer-
cise of some right protected by § 7 of the Act." Id. at
308. ,
The theory that temporary replacement of locked^out
employees , tends, automatically , to cause disaffection
from their bargaining representative is not 'one universal-
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly accepted. As the dissenting Board members (Members
Rogers and Fanning) in the Board decision underlying
Brown Food Store, supra, observed, " it seems clear that
temporarily replacing the employees for the duration of
the strike did not further affect their employment status
or union adherence . . . ." (137 NLRB at 77.) As is true
of the lockout itself, "there is no indication , either as a
general matter or in this specific case , that the [hiring of
temporary replacements] will necessarily destroy the
[Union 's] capacity for effective and responsible represen-
tation." American Ship Building, supra, 380 U.S. at 309.
To the contrary, "the temporary hiring of strangers
might well tend to solidify the Union's ranks . ."
Martin A. Gleason, Inc., 215 NLRB 340, 347 (1974).
Thus, although employee-disaffection from the bargain-
ing representative is a concern under the Act, it is not all
pervasive , precluding consideration of all other interests.
Finally, there is a definite statutory interest at stake
when a bargaining representative 's supporters are de-
prived of work . Again, however, care must be taken in
conducting analysis proceeding from this statutory inter-
est. For, the Act does not prohibit all discrimination, nor
even all discrimination based on union considerations.
See, e.g ., Electrical Workers UE Local 623 (Limpco Mfg.),
230 NLRB 406 (1977), affd. sub nom. D'Amico v NLRB,
582 F .2d 820 (3d Cir. 1978); see American Ship Building,
supra. "The statutory language `discrimination ... to
... 'discourage' means that the finding of a violation
normally turns on whether the discriminatory conduct
was motivated by an antiunion purpose ." Great Dane
Trailers, supra, 388 U.S. at 33. As set forth above, such a
motive can be inferred by the Board "from the conduct
itself," but the Board cannot draw that inference without
first "exercising] its duty to strike the proper balance be-
tween the asserted business justification and the invasion
of employee rights in light of the Act and its policy."
Id., 388 U . S. at 33-34 . Specifically , regarding to the issue
posed in this case, the Supreme Court already had held
that temporary replacement of locked-out employees is
not the type of conduct "demonstrably so destructive of
employee rights and so devoid of significant service to
any legitimate business end that it cannot be tolerated
consistently with the Act." Brown Food Store, supra, 380
U.S. at 286.
In sum, there is a statutory interest in protecting em-
ployees from employer conduct that tends to undermine
their right to support a bargaining representative of their
own choice-either by conduct directed to the employ-
ees, themselves, or indirectly, by weakening or destroy-
ing the capacity of that representative to bargain effec-
tively on their behalf-and, additionally, in protecting
employees from discrimination in employment on the
basis of antiunion considerations , either proven or in-
ferred from the employer's conduct. However, neither of
these interests is so paramount that any and all employer
conduct , which infringes ,on them can be said to be un-
lawful, per se, precluding the need for analysis of the
employer's motive and, further, of whether the adverse
effects of temporary replacement had so invaded the
locked-out employees ' statutory interests that it constitut-
ed an unlawful measure for Respondent to have taken,
without regarding the employer 's actual motive.
5. Striking the balance
In conducting its balancing analysis in Brown Food
Store, the Supreme Court looked essentially to three gen-
eral areas : the permanency of the represented employees'
deprivation of employment as a result of the employers'
replacement of them , the ability of those employees to
pursue a collective course of conduct that would return
them to employment, and the ability of the employees'
bargaining representative to retain employee support fol-
lowing resolution of the immediate dispute, notwith-
standing its possible momentary loss of that support
during the existing dispute. The first two general areas
pertain to the statutory employee interest in being pro-
tected from antiunion discrimination, while the last one
pertains to concern with employee disaffection from the
bargaining agent and concomitant weakening of its rep-
resentative capacity . In each of these three areas, the
Court appears to have distinguished temporary from per-
manent infringement on the statutory employee interests,
permitting action that has but a temporary adverse effect
on them so long as there is a statutorily valid business
justification and so long as the employer 's action has the
effect of promoting the overall statutory objective, set
forth in Section 1(b) of the Act, of avoiding or substan-
tially minimizing "[i]ndustrial strife which interferes with
the normal flow of commerce and with the full produc-
tion of articles and commodities for commerce ...' ."
As found above, avoidance of detriment to the busi-
ness of Respondent and of its customers during the
former 's peak season is an economic or business justifica-
tion statutorily cognizable-one encompassed by the
Act's goal of minimizing , at least, industrial strife that
interferes with the normal flow of commerce and with
full protection. Accordingly, the permanence or imper-
manence of the effects of Respondent 's conduct remains
for evaluation.
The parties agree that Respondent had hired replace-
ment employees only temporarily. Consequently, the
locked-out employees were not being made to suffer a
permanent deprivation of employment with Respondent
because of their support for the Union and its bargaining
positions. In this regard , it is noteworthy that the locked-
out employees were in a better position than had they
gone on strike. For, in that event, Respondent could
have replaced them permanently , absent the commission
of any unfair labor practices. However, during the term
of the lockout, the locked-out employees had the securi-
ty of knowing that they eventually would be returning
to work for Respondent, should they choose to do so. -
Nor can it be said that , in August and September, Re-
spondent had, portrayed the replacements that it had
hired in a manner tending to create the impression that
the locked-out employees were being permanently de-
prived of future employment with Respondent. For that
matter, neither has it been contended nor shown that the
manner of replacements had been such that the locked-
out employees had been left in a position of uncertainty
regarding their future employment with Respondent. i s
16 The Board stated in Western Tug & Barge Corp., 207 NLRB 163 fn.
1 (1973) "The burden of establishing every element of a violation under
the Act is on the General Counsel "
BIRKENWALD DISTRIBUTING CO.
To the contrary , the replacements hired by Respondent
had been individuals who had worked as strike replace-
ments during the work stoppage at Premium . When that
dispute had ended , those replacements had been released
from employment by Premium , presumably so that the
strikers there could return to work . From that fact, it
would have been as inferrable to Respondent 's locked-
out employees-who are represented by the same bar-
gaining agent as are Premium 's employees and who had
been part of the same multiemployer group as Premium's
employees until the events of 1977-that they would be
returning to work at Respondent , once the immediate
dispute had been resolved , as it would have been for
them to infer that the replacements might be permanent.
Indeed , any doubt concerning the matter had been clari-
fied by the fact that Respondent had been willing to ne-
gotiate with the Union concerning return to work of the
locked-out employees and, in fact , did negotiate an
agreement for their return . In these circumstaces, it
cannot be said that the manner in which Respondent had
retained replacements would have led the locked -out em-
ployees to believe or, at least , to be concerned that they
would not be allowed to return to work at Respondent.
As had been the case in Brown Food Store, Respond-
ent's locked-out employees had possessed the ability to
"end the dispute and terminate the lockout at any time
. . ." (380 U. S. at 289 .) Indeed , that is exactly what
happened here . Moreover , to do so, the locked -out em-
ployees had not been obliged to make any concessions
pertaining to contract proposals . Rather , they had been
obliged only to provide assurances that they would not
initiate a strike during Respondent 's peak season. Of
course , the right to strike is a statutory one. However,
any contention that this concession to Respondent had
been a more onerous one than contractual concessions
founders on the Supreme Court's analysis of the extent
of the right to strike guaranteed by the Act-"but there
is nothing in the statute which would imply that the
right to strike `carries with it ' the right exclusively to de-
termine the timing and duration of all work stoppages.
The right to strike as commonly understood is the right
to cease work-nothing more ." American Ship Building,
supra , 380 U.S. at 310. In fact , Respondent had not been
seeking to compel the unit employees to forgo altogether
their right to cease work . Rather , it had been seeking as-
surances only that timing of any strike that they conduct-
ed would not be such as to adversely affect Respondent's
peak season operations . Consequently , the concesson
sought by Respondent pertained to the nonstatutory em-
ployee interest in timing and duration of the exercise of
the right to strike-not to the staturory right to cease
work altogether. 17
Finally , there had been no showing beyond the debata-
ble theory that temporary replacement of locked -out em-
ployees naturally would tend to cause them to become
disenchanted with the Union , see Martin A. Gleason,
supra , that Respondent 's hiring of temporary replace-
ments would have tended to cause permanent loss of
11 Consequently , the issue of whether an employer can lawfully lock
out and replace its employees in an effort to extract a promise not to
strike altogether during negotiations is not presented here
963
support for the Union , nor, for that matter , loss of sup-
port even during the course of that dispute . So far as the
record discloses, the Union had continued to enjoy the
support of the locked -out employees and had been able
to continue advancing its proposals and adhering to its
bargaining strategy notwithstanding the temporary re-
placement of employees that it represented . Moreover,
there is no evidence that Respondent had rejected pro-
posals by the Union-for example , a union-security
clause , checkoff, bulletin board access-that would have
enabled it to secure and to retain support of employees
during the term of any collective -bargaining agreement
negotiated by the parties . In addition , the record is
devoid of evidence showing that it was not possible or
realistic for the Union to have taken action to retain sup-
port of the locked -out employees during the period of
the lockout-such as countering the lockout by calling a
strike and commencing picketing of Respondent, or by
providing strike benefits or even securing interim em-
ployment for the locked -out employees that it represent-
ed.
In sum , had Respondent been obliged to wait until its
employees decided to initiate a strike , it could have re-
placed them and continued to operate its business. How-
ever , by waiting , it ran a risk of not being able to obtain
ads for floor displays, because of customer fear that it
would not be able to deliver as scheduled during its peak
season and of, in fact , not being able to operate during its
peak season should the Union decide to commence a
strike between late October and New Year's Day. In
these circumstances , and absent any evidence that it har-
bored animus toward the Union and its supporters, Re-
spondent concededly acted lawfully in locking out the
unit employees . By hiring replacements , Respondent
took action that was related to that business justification.
In doing so, it ensured its ability to operate during its
peak season with an experienced complement of employ-
ees, who by then was fully trained in the nuances of its
operations. In addition , by taking action in August, Re-
spondent effectively served notice on customers of its
ability to meet its commitments during the peak season.
It hired replacements only temporarily and there is no
evidence that their temporary status had been concealed
from the locked -out employees or their bargaining repre-
sentative . Even after they had been hired , Respondent
stood willing to negotiate with the Union about the
return of the locked -out employees and, in fact, did
reach an agreement with the Union for their reinstate-
ment. There is no evidence that in the course of negotia-
tions, prior to or after the hiring of replacements, Re-
spondent had taken any position on contractual proposals
that would have prevented the Union from retaining sup-
port of unit employees . Nor is there any evidence that
Respondent took any other action that would have im-
peded the Union from retaining employee support during
the course of the lockout and in connection with negoti-
ations regarding return of those employees to work. In
these circumstance, I find that Respondent did not vio-
late the Act by hiring temporary replacements for the
locked -out employees.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Caveat
At this point, it might be best to state expressly that
which is implicit from the foregoing. The conclusion that
I reach is a very narrow one, applying only where the
business justification is concerned regarding impact of a
strike on peak season operations and only in the circum-
stances presented by the evidence in this matter. Such an
approach is consistent with the admonition of Justice
Goldberg in his separate opinion, in which Chief Justice
Warren joined, in American Ship Building: "In view of
the necessity for, and the desirability of, weighing the le-
gitimate conflicting interests in variant lockout situations,
there is not and cannot be any simple formula which
readily demarks the permissible from the impermissible
lockout." (380 U.S. at 341.) This observation would
appear equally applicable to the matter of replacing
locked-out employees. Thus, had Respondent's justifica-
tion for having locked out its employees been one differ-
ent from that presented by the evidence here, a different
conclusion might well be warranted on the issue of
whether the hiring of temporary replacements also was
justified. 18 Moreover, a different result might be reached
where the employer's conduct, unlike that of Respondent
in this matter, is not reasonably related to the economic
justification advanced.19 Finally, a different result might
18 For example, had Respondent been concerned only with nonsea-
sonal loss of business, which ordinarily occurs where a strike is com-
menced, or had it locked out its employees to bring economic pressure to
bear in support of its bargaining position, the justification for hiring tem-
porary replacements that exists in the circumstances presented in this case
might not be present and, even so, the adverse effects of hiring replace-
ments on the statutory interest of locked-out employees might outweigh
the business justification for hiring temporary replacements in such cir-
cumstances. Of course, these issues are not presented nor decided in this
case
sa For example, the hiring of permanent replacements or the retention
of temporary replacements after expiration of the justification for their
hiring might occasion a different result. These too are not matters pre-
sented for resolution in this proceeding.
follow had Respondent gone about hiring temporary re-
placements in a manner different from that which it fol-
lowed, or in circumstances differing from those present-
ed in the instant case .20
CONCLUSIONS OF LAW
1. Birkenwald, Inc. d/b/a Birkenwald Distributing
Company is an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. General Teamsters Local 174, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. Birkenwald, Inc. d/b/a Birkenwald Distributing
Company has not violated the Act in any manner alleged
in the complaint in this proceeding.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
It is recommended that the complaint be dismissed ' in
its entirety.
20 For example, had Respondent been committing unfair labor prac-
tices designed to undermine the Union's capacity to represent the em-
ployees; or, had Respondent been lawfully opposing proposals, such as a
union-security provision, that would enable the Union to retain support
of unit employees during the term of any collective-bargaining agreement
negotiated; or had Respondent misled the Union and the locked-out em-
ployees into believing that the replacements were being hired permanent-
ly; or, finally, had Respondent been unwilling to negotiate about the
terms under which the locked-out employees could return to work
Again, these issues are not presented nor resolved here.
2 i If no exceptions are filed as provided by Sec 162.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.