Dayton Newspapers

National Labor Relations Board - Board Decisions

Jul 14, 2003

339 N.L.R.B. 650 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650

Dayton Newspapers, Inc. and General Truck Drivers,
Chauffeurs, Warehousemen and Helpers, Local
Union No. 957, an affiliate of the International
Brotherhood of Teamsters, AFL–CIO. Cases 9–
CA–36894, 9–CA–36981, and 9–CA–37385.
July 14, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 14, 2000, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an
answering brief, and the Respondent filed a reply brief to
each of the answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
This case involves a 1-day economic strike by the Re-
spondent’s drivers. At the time of the strike, the Re-
spondent was in the process of gradually transferring its
operations to a new plant, pursuant to a transition plan
made before the strike and discussed with the Union.
Several days after the strike, the Respondent laid off 13
drivers and locked out 18 others. As explained below,
the judge found, and we agree, that the Respondent made
several statements in connection with the strike that vio-
lated Section 8(a)(1), dealt directly with the drivers in
violation of Section 8(a)(5) and (1), laid off 13 drivers
and withheld their bonuses in violation of Section 8(a)(3)
and (1), and refused to reinstate 9 of the locked-out driv-
ers in violation of Section 8(a)(3) and (1).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to our findings and the Board’s standard reme-
dial language. In addition, we do not believe that a broad cease-and-
desist order is warranted under the test set forth in Hickmott Foods, 242
NLRB 1357 (1979), and we shall modify the judge’s recommended
Order accordingly.
I. FACTUAL BACKGROUND
The drivers are represented by Teamsters Local 957
(the Union). In 1998, the Respondent notified the Union
of its plans to transfer operations to a new plant. The new
plant would use larger trucks and therefore require fewer
drivers. The Respondent anticipated that it would have
positions for 18 drivers at the new plant, but that the 13
least senior drivers would be laid off. In October 1998,
the Respondent offered the Union a “stay to the end”
bonus for the drivers who would eventually be laid off.
The terms of the bonus offer provided in part:
This offer is contingent upon the employees staying ac-
tively at work, and in good standing, until their release
date. Release dates will be determined periodically, by
seniority, based on operational needs and the transition
schedule.
The Union appears to have agreed to the offer.
The Respondent planned that the 13 layoffs would be
staggered, corresponding with the gradual transfer of its
printing operations to the new facility. As of early
1999,3 the Respondent predicted that the layoffs would
start in April. At least by June 10, however, that date
had changed, and the layoffs were not anticipated to start
until about July 19.
Meanwhile, since August 1998, the parties had been
negotiating for a new collective-bargaining agreement.
Negotiations were unsuccessful. In May 1999, the union
membership voted to authorize a strike, but did not set a
date. During an employee meeting in early June 1999,
employee Tim Hehemann mentioned the possibility of a
strike to Director of Operations Mike Joseph. Hehemann
testified that Joseph said that if the drivers struck, “you
won’t be working here any more, and that would be it for
you.”
On June 26, the Union began a strike that lasted 24
hours. During the strike, Joseph came to the picket line
and told Hehemann that the union representatives “just
cost you guys all—cost all you guys your jobs.”
On June 27, the Union made an unconditional offer to
return to work. When the drivers reported to work, how-
ever, Joseph did not allow them to work. Joseph told
Hehemann that the Respondent was “not in need of [Lo-
cal] 957’s services” and that Joseph would contact He-
hemann if or when he was to work again. Hehemann
restated his desire to return. Hehemann testified that
Joseph then said, “[W]ell, the problem isn’t with you as a
driver, but as long as you have 957, and he mentioned
John Burns’ name, in particular, he didn’t see how the
problem could be resolved.”4
3 All dates are in 1999 unless otherwise specified.
4 John Burns is the Union’s business agent.
339 NLRB No. 79
DAYTON NEWSPAPERS 651
On July 1, the Respondent sent a letter to the Union re-
jecting its offer to return to work. The Respondent at-
tached copies of two form letters, which the Respondent
sent to two separate groups of drivers that same date.
One letter, sent to each of the 18 most senior drivers,
informed these drivers that they were being placed on
unpaid leave until they gave an “acceptable commit-
ment” to make deliveries without disruption.5 The other
letter, sent to each of the 13 least senior drivers, informed
these drivers that they were being laid off. In contrast to
the letter sent to the drivers placed on unpaid leave, the
letter to the laid-off drivers said nothing about the possi-
bility of returning to work upon making an “acceptable
commitment.” Therefore, for purposes of this case, the
drivers fall into two groups: the 13 drivers who were
laid off, and the 18 drivers who were locked out and
placed on unpaid leave.
Also about July 1, Joseph began calling the 18 locked-
out drivers and asking them to come in for one-on-one
meetings with him. During those meetings, Joseph told
the drivers that they could return to work if they prom-
ised to work without interruption. Joseph said that this
would include crossing future picket lines. One driver
testified that Joseph asked him for a “verbal agreement
. . . not to honor any job action called upon by the Team-
sters 957.” Some drivers agreed and returned to work on
these terms, others did not agree, and still others declined
to come in for a meeting.6
About July 11, the Respondent began advertising for
new drivers. It did not recall the 13 laid-off drivers, al-
though it rehired two of them as new employees. Fur-
thermore, it did not pay the laid-off drivers their “stay to
the end” bonuses.
During July and August, the parties continued to nego-
tiate for a new agreement and over the conditions for
ending the lockout. The Respondent continued to de-
mand that the Union give assurances against further work
stoppages, but the Respondent was reluctant to define
what those assurances should be. For example, on July
19, the Respondent said it would need “notice” of future

5 The Union filed an unfair labor practice charge alleging that the
Respondent violated Sec. 8(a)(3) and (1) by locking out the drivers on
June 27, and refusing to allow them to return to work. The Regional
Director dismissed the charge, and the General Counsel denied the
Union’s appeal, on the basis that the Respondent’s need for timely
delivery of its newspaper was a legitimate and substantial business
justification for locking out the drivers and conditioning reinstatement
upon their assurances that they would not engage in additional strikes
during the transition to the new plant. With regard to the lockout, the
complaint in this case alleges that the Respondent unlawfully refused to
reinstate the locked-out drivers as of December 27. Therefore, we
presume, as the judge did, that a lawful lockout was in place until that
time.
6 Eventually, 9 of the 18 were reinstated through these meetings.
strikes and some assurance regarding intermittent strikes,
but “did not want to say something specific that would
sound like a demand, when in fact there is so much un-
certainty about what we legitimately need . . . .” On July
21, the Respondent stated: “At this point we have little
information or time, and no input from you, to make a
meaningful demand . . . . For now, as an opening propo-
sition, we are asking for some assurances that work and
new plant transition can continue with little or no inter-
ruption until the transition is complete—after that, some
type of advance notice (a few weeks might be enough,
maybe less) before striking would be required.”
About July 19, the Respondent added a second condi-
tion for reinstatement of the remaining locked-out driv-
ers: in addition to giving assurances against further work
stoppages, the Union must agree to accept “operational
changes” the Respondent had made since the strike.
When the Union asked what operational changes the Re-
spondent had made, the Respondent gave a partial list,
but stated that the list would keep changing in the com-
ing weeks and months.
Meanwhile, the Respondent continued its transition to
the new plant. On August 28, the Respondent transferred
the last of its printing to the new plant.
On December 23, the Union made a written offer to re-
turn to work on behalf of the locked-out drivers. It of-
fered to return “with the assurances that there would be
no work stoppages, strikes or other slowdowns for the
same period of time agreed to by the locked out drivers
that the Company has allowed to return to work [i.e., the
drivers reinstated after meeting with the Respondent on
an individual basis], and providing the same notification
agreed to by those same locked out drivers that the Com-
pany allowed to return to work.”
The Respondent did not accept the Union’s December
23 offer. Instead, on December 27, the Respondent sent
a letter to the Union claiming that there were “a number
of changed circumstances in recent months” that “may
impact our position regarding a return to work for the
employees locked out.” The Respondent listed the al-
leged changed circumstances, which included, among
other things, “[h]iring of replacement workers who are
already trained to work in the new operation,” “[c]hanges
in relative bargaining strength as a result of the failed
strike,” and “[c]ontinued operational changes tied to the
new plant.”
On December 28, the Union responded with a letter re-
iterating its assurances against work disruption, noting
that none of the “changed circumstances” listed by the
Respondent should affect a return to work, and empha-
sizing that the locked-out drivers were all long-term,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
capable employees who were qualified to perform the
Respondent’s work. The letter also stated in part:
In regard to the ‘operational changes tied to the new
plant,’ while those changes might be subject to further
negotiations between the Company and the Union, they
have absolutely nothing to do with the unconditional
offer to return to work made by Local 957 and the driv-
ers who have not yet been allowed to return to work.
On February 4, the parties met to discuss the rein-
statement issue further. At that meeting, the Respondent
distributed a memorandum stating that “nothing in the
union’s recent correspondence reasonably permits or
requires” reinstatement of the locked-out drivers. The
memorandum then set forth a long list of additional is-
sues the parties would need to address before the rein-
statement issue could be resolved, including such issues
as whether the Union or the drivers “might be lying,”
how the Respondent could be sure the Union would not
“secretly authorize” a wildcat strike, and whether the
Union would post a bond to secure its promise against
unannounced work stoppages.7 The February 4 memo-
randum was the Respondent’s last communication re-
garding the conditions for reinstatement of the locked-
out drivers. The Respondent has not reinstated the
locked-out drivers, other than those drivers discussed
above who met with the Respondent on an individual
basis in July.
The judge found that the Respondent violated Section
8(a)(1) by threatening employees with job loss for strik-
ing and by inducing the employees to rid themselves of
the Union. He also found that the Respondent violated
Section 8(a)(5) and (1) by bypassing the Union and deal-
ing directly with the drivers to reinstate them in ex-
change for a waiver of their right to strike. The judge
further found that the Respondent violated Section
8(a)(3) and (1) by failing to reinstate the 13 drivers upon
the Union’s June 27 offer to return to work, by laying
them off and failing to recall them because they struck,
and by denying them the “stay to the end” bonus. Fi-
nally, he found that the Respondent violated Section
8(a)(3) and (1) by refusing to reinstate the 9 remaining
locked-out drivers upon the Union’s December 23 offer
to return to work. As stated below, we agree that the
Respondent committed each of these violations.

7 The relevant portions of the Respondent’s February 4 memoran-
dum are quoted in par. 37 of the judge’s decision.
II. ANALYSIS
A. Alleged Threats of Job Loss and Inducement to Em-
ployees to Rid Themselves of the Union, in Violation of
Section 8(a)(1)
1. Threat of job loss at June 1999 employee meeting
The judge found that the Respondent violated Section
8(a)(1) when Joseph told Hehemann during an early June
meeting that if the drivers struck, “you won’t be working
here any more, and that would be it for you.” We agree
with the judge that this statement was a threat of job loss
in the event of a strike and therefore violated Section
8(a)(1).
The Respondent argues that the judge erred in finding
this violation because his finding was based on Hehe-
mann’s uncorroborated testimony, which the Respondent
contends was contradicted by the testimony of employee
Terry Glueckert. The Respondent relies on the Sixth
Circuit’s decision in NLRB v. Cook Family Foods, Ltd.,
47 F.3d 809, 816 fn. 5 (6th Cir. 1995). In that case, the
court stated that it has declined “to uphold unfair labor
practice findings that rest upon the uncorroborated testi-
mony of persons who stand to receive backpay if the
findings are upheld.” Not only were the witnesses in
Cook uncorroborated, but their version of events was
contradicted by all of the disinterested witnesses who
testified on the issue. See id. The court therefore found
that “the evidence as a whole” did not support the finding
of an unfair labor practice. Id.
The principles of Cook do not preclude us from finding
an unlawful threat. First, we do not agree that Glueckert
clearly contradicted Hehemann’s testimony that the
threat occurred. Glueckert testified that he “did not hear”
any threats. Second, as noted by the judge, Joseph did
not deny that he made the threat. Joseph testified gener-
ally about the meeting and stated that the possibility of a
strike was discussed, but he was never asked to confirm
or deny making the statement that Hehemann attributed
to him. Under these circumstances, considering the evi-
dence as a whole, we agree with the judge that the Re-
spondent violated Section 8(a)(1) by threatening employ-
ees with job loss if they were to strike.
2. Threat of job loss on picket line
The judge also found that the Respondent violated
Section 8(a)(1) when Joseph told Hehemann on the
picket line that the union representatives “just cost you
guys all—cost all you guys your jobs.” The judge found
that Joseph’s statement was a threat that the employees
had lost their jobs by striking. For the reasons stated by
the judge, we agree that Joseph’s statement violated Sec-
tion 8(a)(1).
DAYTON NEWSPAPERS 653
3. Inducement to employees to rid themselves of the
Union in order to return to work
The judge further found that the Respondent violated
Section 8(a)(1) by inducing the drivers to rid themselves
of the Union when they sought to return to work the day
after the strike. The judge relied on Joseph’s statement
to Hehemann, as Hehemann was attempting to return to
work, that the Respondent was “not in need of 957’s ser-
vices” and that Joseph did not see how the “problem”
could be resolved as long as Hehemann was represented
by Teamsters Local 957 and its business agent, John
Burns. For the reasons stated by the judge, we agree that
Joseph’s statement violated Section 8(a)(1).
B. Alleged Direct Dealing with Employees in Violation of
Section 8(a)(5) and (1)
We agree with the judge, for the reasons stated in his
decision, that the Respondent violated Section 8(a)(5)
and (1) by bypassing the Union and dealing directly with
employees through a series of one-on-one meetings be-
ginning about July 1, in which Joseph asked for each
driver’s commitment to work without interruption, in-
cluding crossing picket lines, in exchange for being al-
lowed to return to work.
The Respondent argues that it was simply communi-
cating an offer of reinstatement directly to the drivers,
and that its conduct was therefore lawful under U.S.
Ecology Corp., 331 NLRB 223 (2000), enfd. 26 Fed.
Appx. 435 (6th Cir. 2001). We find U.S. Ecology distin-
guishable. In that case, employees engaged in a strike
prior to impasse. In response to the strikers’ inquiries,
the employer sent a letter to the strikers stating that they
could return to work and “for the time being” receive the
same wages and benefits they had received before the
strike. The Board found that the employer did not en-
gage in unlawful direct dealing, emphasizing that the
employer could not lawfully offer the strikers any terms
other than those existing before the strike, because the
parties had not bargained to impasse. The Board rea-
soned, “We do not believe that, merely by stating (in
response to employee inquiries) the only employment
conditions it could lawfully offer under the circum-
stances, the Respondent can reasonably be found to have
‘eroded the Union’s position as exclusive representa-
tive.’” 331 NLRB at 226.
Here, the Respondent went far beyond merely com-
municating an offer of reinstatement. As of July 1, the
approximate date the Respondent began contacting the
drivers for one-on-one meetings, the Respondent had
made only a general demand from the Union for an “ac-
ceptable commitment” to make deliveries without disrup-
tion. Rather than clarifying to the Union what an “ac-
ceptable commitment” would involve, the Respondent
instead discussed this issue directly with the drivers. It
sought to obtain from each driver individually, in ex-
change for returning to work, a broad and open-ended
waiver of their Section 7 right to support future union
strikes or picketing. We find that such conduct clearly
erodes the Union’s position as exclusive representative.
We agree with the judge that the Respondent’s one-on-
one meetings with the drivers violated Section 8(a)(5)
and (1).
C. Alleged Failure to Reinstate, Permanent Layoff, and
Failure to Recall 13 Drivers in Violation of Section
8(a)(3) and (1)
The judge found that the Respondent violated Section
8(a)(3) and (1) by failing to reinstate, permanently laying
off, and thereafter failing to recall 13 drivers after the
June 26 strike.8 As explained below, we agree.9
1. The Respondent did not prove a legitimate and sub-
stantial business justification for not reinstating all 13
drivers on July 1
The Union made an unconditional offer to return to
work on behalf of the striking drivers on June 27. In a
letter to the Union dated July 1, the Respondent denied
the offer and stated, in part, that it had laid off 13 drivers
due to recent changes to its operation. On the same date,
the Respondent sent letters to the 13 drivers notifying
them that they were being laid off. We agree with the
judge that these 13 drivers were not part of the lockout,
which encompassed only the 18 drivers placed on unpaid
leave.
It is well settled that an employer violates Section
8(a)(3) and (1) if it fails to reinstate strikers on their un-
conditional offer to return to work, unless the employer
can establish a “legitimate and substantial business justi-
fication[]” for failing to do so. NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378 (1967); Laidlaw Corp.,
171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir.
1969), cert. denied 397 U.S. 920 (1970). The Respon-
dent argues that it had already decided, before the strike,
to lay off the 13 drivers in connection with its new plant

8 The Respondent argues that the failure-to-recall allegation is barred
by the 6-month time limitation of Sec. 10(b), because the allegation
was not expressly included in the charge and was not added to the
complaint until May 2000. However, the Respondent failed to raise its
Sec. 10(b) defense until its posthearing brief, and has therefore waived
it. See Public Service Co., 312 NLRB 459, 461 (1993).
9 In finding the layoffs unlawful, we do not rely on the judge’s find-
ing, in par. 23 of his decision, that the layoffs were inherently destruc-
tive of employee rights. Furthermore, we do not rely on his finding, in
par. 20 of his decision, that even assuming the 13 drivers were part of
the lockout, the Respondent permanently replaced them and therefore
made the lockout unlawful as to these 13 drivers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
transition, and that it simply accelerated the transition
(and, consequently, the layoffs) after the strike. There-
fore, the Respondent claims that it had a legitimate and
substantial business justification for not reinstating the
13 drivers.
The Respondent’s transition plans called for layoffs on
a staggered basis as the Respondent transferred printing
operations to its new facility. Brett Thurman, the Re-
spondent’s General Counsel and Human Resources Man-
ager, testified that “printing the newspaper [at the new
plant] is what triggers our ability to drive bigger trucks
and that triggers the layoffs.” Under the Respondent’s
transition plan, transfer of the printing was to occur in
stages. Thurman testified that the Respondent did accel-
erate the transition and begin some printing at the new
plant immediately after the strike. The judge found, and
we agree, that it was lawful for the Respondent to change
its transition schedule in view of the strike. However, it
is uncontested that the Respondent continued some print-
ing at the old plant through August 28. In addition,
Thurman testified that the Respondent did not com-
pletely switch over to using larger trucks until mid-
August at the earliest. Therefore, because there was at
least some driving work available when the employees
offered to return to work on June 27, we reject the Re-
spondent’s argument that its transition to the new plant
was a legitimate and substantial business justification for
not reinstating any of the 13 drivers on July 1.
We also reject the Respondent’s argument that it was
justified in not reinstating the drivers on July 1 because
they lacked the class A commercial driver’s license en-
dorsement necessary to drive the large trucks used at the
new plant. The record shows that the Respondent was
not certain that all of the drivers lacked class A endorse-
ments. Furthermore, as noted above, the Respondent did
not completely shift its operation to the large trucks until
at least mid-August, well after the July 1 refusal to rein-
state.
As stated above, it was the Respondent’s burden to
show a legitimate and substantial business justification
for its conduct. The Respondent’s asserted justifica-
tions—that the drivers were unnecessary because of the
plant transition, or unqualified because they lacked class
A endorsements—were not true for all 13 drivers as of
July 1. That is, the Respondent has not shown that all 13
of the drivers were unnecessary or unqualified as of July
1. Therefore, we find that the Respondent has not shown
a legitimate and substantial business justification for fail-
ing to reinstate any of the 13 drivers on that date, and we
agree with the judge that the Respondent violated Section
8(a)(3) and (1).10
2. The layoffs were unlawful under a Wright Line
analysis
We further find that the layoffs violated Section
8(a)(3) and (1) under Wright Line.11 In Wright Line, the
Board established an analytical framework for deciding
cases turning on employer motivation. To prove that an
employment decision violated Section 8(a)(3) and (1),
the General Counsel must first persuade, by a preponder-
ance of the evidence, that the employee’s protected con-
duct was a motivating factor in the employer’s decision.
Once the General Counsel makes such a showing, the
burden of persuasion “shift[s] to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct.” Wright Line,
supra at 1089. The elements commonly required to show
discriminatory motivation are union activity, employer
knowledge, and employer animus. See Sears, Roebuck
& Co., 337 NLRB 443 (2002).
We find that the General Counsel has met his burden
to show that protected activity was a motivating factor in
the layoffs. At the time of the layoffs, the employees had
just engaged in a strike, and therefore the Respondent
was well aware of their union activity. The Respondent
displayed its antiunion animus on June 26, when Joseph
threatened employees on the picket line that the Union
had just cost them their jobs, and again on June 27, when
Joseph told Hehemann that he did not see how matters
could be resolved as long as Hehemann (and, by implica-
tion, the other drivers) was represented by the Union.
Just days after these unlawful statements, the Respondent
laid off 13 drivers. In addition, during the period July
1999 through February 2000, the Respondent advertised
for and hired 11 new drivers, presumably to replace the
group of drivers it had locked out. However, the Re-
spondent did not recall any of the laid-off drivers. The
Respondent rehired two laid-off drivers, but as new em-
ployees with no seniority. See Lear Siegler, Inc., 277
NLRB 782 (1985) (laying off and failing to recall union-
represented employees while simultaneously hiring new
employees was evidence that protected activity was mo-
tivating factor in the layoffs). Therefore, we find that the

10 We leave to the compliance stage of this proceeding to determine
how many and which of the 13 drivers would have been reinstated on
that date absent the Respondent’s discriminatory conduct.
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
DAYTON NEWSPAPERS 655
General Counsel has met his burden of showing that pro-
tected activity was a motivating factor in the layoffs.12
We further find that the Respondent failed to prove it
would have laid off all 13 drivers on July 1, even in the
absence of their protected conduct. The Respondent ar-
gues that all 13 drivers were unneeded or unqualified due
to the new plant transition. We reject this argument for
the reasons stated in section C,1 above. Accordingly, we
agree with the judge that the Respondent violated Section
8(a)(3) and (1) by laying off the drivers and thereafter
failing to recall them. See Wright Line, supra at 1089.
D. Alleged Denial of Bonus to the 13 Drivers in Viola-
tion of Section 8(a)(3) and (1)
The judge found that the Respondent violated Section
8(a)(3) and (1) by denying the 13 drivers their “stay to
the end” bonuses. We agree. The test for determining
whether denial of a benefit to strikers violates Section
8(a)(3) and (1) is set forth in Texaco, Inc., 285 NLRB
241, 245–246 (1987). Under Texaco, the General Coun-
sel has the prima facie burden to show some adverse ef-
fect of the benefit denial on employee rights. The Gen-
eral Counsel can meet this burden by showing that (1)
the benefit was accrued, and (2) the benefit was withheld
on the apparent basis of the strike. The burden then
shifts to the employer to show a legitimate and substan-
tial business justification for denying the benefit.
We find that the bonus was accrued. In doing so, we
reject the Respondent’s argument that the bonus was not
accrued because the drivers failed to meet the condition
that they remain “actively at work, and in good standing,
until their release date” (that is, until the Respondent laid
them off). The drivers were “released,” or laid off, on
July 1. On its face, the bonus provision says nothing
about a strike precluding the drivers from being “actively
at work and in good standing.” Further, there is no evi-
dence that the parties intended a 1-day strike to disqual-
ify drivers from being “actively at work and in good
standing.” To the contrary, several employees testified
that they were never told the bonus would be unavailable
if they struck. The Union’s business representative testi-
fied that when the bonus was proposed by the Respon-
dent and discussed in bargaining, there was no discussion
of what impact a strike might have on the bonus. There-
fore, we find that as of July 1, the drivers remained “ac-
tively at work and in good standing.” Accordingly, the
bonus was accrued.
We also find that the bonus was withheld on the ap-
parent basis of the strike. Thurman testified that “it

12 In finding animus, we do not rely on Thurman’s statements (de-
scribed in pars. 5 and 6 of the judge’s decision) during his hearing
testimony or during negotiations with the Union.
wasn’t the strike for one day” that resulted in denial of
the bonus, but “the combination of missing one day un-
announced and then not giving any reasonable work as-
surance afterward.” However, as the judge found, the
Respondent clearly stated after the strike that work as-
surances would have “no effect on the layoffs.” Thus, on
July 22, the Respondent stated in a memorandum to the
Union: “There is no change in our position. The layoffs
are unconditional, and are based solely on the changes in
our operation since the strike. Assurances regarding dis-
ruptions will have no effect on the layoffs, but are impor-
tant concerning employees who have not been laid off.”
Furthermore, the July 1 letters to the 13 laid-off drivers
(in contrast to the letters to the 18 drivers placed on un-
paid leave) said nothing about the possibility of returning
to work after giving work assurances. The Respondent
cannot fault the laid-off drivers for failing to give work
assurances when it made clear that such assurances
would have no effect. Having rejected the Respondent’s
argument that it withheld the bonus because the drivers
failed to give work assurances, we find that the Respon-
dent withheld the bonus on the apparent basis of the
strike. Therefore, the General Counsel has met his bur-
den under Texaco to show that the denial of the bonus
adversely affected employee rights.
The burden then shifts to the Respondent to show a le-
gitimate and substantial business justification for denying
the benefit. We find that the Respondent has failed to do
so. As explained above, the Respondent’s asserted busi-
ness justification is that the laid-off drivers failed to give
“reasonable work assurances.” We reject that argument
for the reasons stated above. Consequently, we agree
with the judge that the Respondent violated Section
8(a)(3) and (1) by denying the 13 drivers their “stay to
the end” bonuses.13
E. Alleged Failure to Reinstate Locked-Out Drivers in
Violation of Section 8(a)(3) and (1)
The judge found that the Respondent violated Section
8(a)(3) and (1) by failing to reinstate the locked-out driv-
ers after the Union’s December 23 offer to return to
work. For the reasons stated below, we agree.
13 We do not rely on the judge’s findings, in par. 29 of his decision,
that the denial of the bonus was inherently destructive of employee
rights and a unilateral change in terms and conditions of employment in
violation of Sec. 8(a)(5) and (1).
Member Schaumber agrees that the Respondent’s denial of the bo-
nuses to the drivers scheduled for future layoff violated Sec. 8(a)(3) and
(1). The sole condition for the drivers’ receipt of the bonuses was that
they remained “actively at work and in good standing.” The Respon-
dent’s wrongful layoff of the drivers made it impossible for them to
meet this condition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
1. Legal framework
The burden is on an employer to prove a legitimate
and substantial business justification for failing to rein-
state economic strikers. NLRB v. Fleetwood Trailer Co.,
supra, 389 U.S. at 378; Laidlaw, supra, 171 NLRB at
1368. In the present case, the Respondent’s asserted
business justification is that it lawfully locked out the
striking drivers. The Respondent claims that it was enti-
tled to condition reinstatement on the Union’s fulfillment
of two requirements: some type of assurance against
further work stoppages, and agreement to accept “opera-
tional changes” made after the strike. The Respondent
argues that it lawfully continued the lockout and denied
reinstatement even after the Union’s December 23 offer,
because the Union did not agree to the operational
changes.
As the judge noted, however, a fundamental principle
underlying a lawful lockout is that the Union must be
informed of the employer’s demands, so that the Union
can evaluate whether to accept them and obtain rein-
statement. The judge cited Eads Transfer, 304 NLRB
711 (1991), enfd. 989 F.2d 373 (9th Cir. 1993). In Eads,
the employer refused to reinstate economic strikers after
their unconditional offer to return. Several months later,
the employer announced for the first time that reinstate-
ment would be conditioned on a signed contract. Be-
cause the employer had not timely informed the strikers
that it was locking them out until a contract was reached,
the Board found the failure to reinstate unlawful. The
Board held:
[W]e conclude that an employer can only justify its
failure to reinstate economic strikers “for legitimate and
substantial business reasons” based on a “lockout” by
its timely announcement to the strikers that it is locking
them out in support of its bargaining position. For only
after the employer has informed the strikers of the
lockout can the strikers knowingly reevaluate their po-
sition and decide whether to accept the employer’s
terms and end the strike or to take other appropriate ac-
tion.
The Ninth Circuit agreed with the Board’s reasoning
and enforced its Order. The court stated:
Without notice of the lockout, the strikers did not know
what was at risk. Had the employees been timely in-
formed of the lockout they could have reevaluated their
positions and taken appropriate actions in reaching a
new bargaining agreement.
989 F.2d at 377. See also Ancor Concepts, Inc., 323 NLRB
742, 745 (1997), enf. denied 166 F.3d 55 (2d Cir. 1999)
(locked-out employees were falsely told they had been per-
manently replaced, which “could have reasonably caused
the strikers confusion in evaluating their bargaining
strength”; therefore, strikers “could not intelligently evaluate
their position” under Eads).14
The judge concluded that the Respondent violated Sec-
tion 8(a)(3) and (1) by failing to reinstate the locked-out
drivers. In doing so, he found, in part, that the Respon-
dent did not clearly state the conditions the Union must
meet to end the lockout, as required by Eads.
We agree with the judge that the Respondent’s failure
to reinstate the drivers was unlawful under this principle.
Unlike the employees in Eads, the drivers in the present
case were informed that they were locked out. See also
NLRB v. Ancor Concepts, 166 F.3d at 58. Nevertheless,
in order for employees to “knowingly evaluate their posi-
tion” as required by Eads, the employees must not only
be informed that they are locked out, but they must be
clearly and fully informed of the conditions they must
meet to be reinstated. In the present case, the Respon-
dent denied the Union’s December 23 offer to return to
work, claiming that the Union had not accepted the Re-
spondent’s conditions. However, we find that the Re-
spondent had not clearly and fully set forth those condi-
tions. Instead, as explained below, the Respondent pre-
sented the Union with unclear and changing conditions
that, in our view, became a “moving target.” Under these
circumstances, the Union could not intelligently evaluate
its position and obtain reinstatement. The Respondent
therefore violated Section 8(a)(3) and (1) by refusing to
reinstate the drivers after the Union’s December 23 offer
to return to work.
2. “Operational changes” condition
One of the Respondent’s conditions for reinstatement
was that the Union accept “operational changes” the Re-
spondent had made since the strike. The Respondent
first made this demand during negotiations on July 19, a
few weeks after the strike. In response, the Union asked
what changes had been made. The Respondent initially
claimed that that information was “not relevant.” When
pressed, the Respondent gave the Union a partial verbal
list of the changes, but emphasized that the list was not
complete and was “off the top of [Director of Operations
Mike Joseph’s] head.”15 The Respondent told the Union
that the list would “keep changing in the coming weeks

14 In denying enforcement in Ancor Concepts, the court did not reject
the principle that locked-out employees must be able to intelligently
reevaluate their position. Significantly, although the court disagreed
with the Board’s interpretation of, and reliance on, certain facts, it
found that the employer clearly conveyed to the employees why it was
not willing to take them back.
15 Although some of the changes on the partial list had been dis-
cussed prior to the strike, in negotiations over the new plant transition,
the Union’s business representative testified that other changes listed
by the Respondent had not previously been discussed.
DAYTON NEWSPAPERS 657
and months.” According to the Respondent’s July 19
bargaining notes, the Respondent also told the Union that
there were various reasons for the changes; some were
“driven by the transition, some of it because the transi-
tion has been on an expedited basis under the Plan B that
was forced on us, other changes by other things . . . .”16
On September 13, the Union made an information re-
quest seeking, in part, a description of “[a]ll operational
changes implemented by the Company since June 27,
1999 up to the present date including, but not limited to,
those changes implemented as a result of the Company’s
move to the Franklin facility.” There is no evidence that
the Respondent provided this information before the Un-
ion’s December 23 offer to return to work.
On December 23, the Union made its written offer to
return the locked-out drivers to work, offering the same
assurances against further work stoppages that had been
offered by the individual drivers reinstated in July. The
Respondent did not accept the Union’s offer. Instead, on
December 27, the Respondent sent a letter to the Union
claiming that there were “a number of changed circum-
stances in recent months” that “may impact our position
regarding a return to work for the employees locked out.”
The Respondent listed “[c]ontinued operational changes
tied to the new plant” as one of the changed circum-
stances, but did not specify what those “continued”
changes were. Moreover, the Respondent’s letter went
beyond simply demanding acceptance of those changes
and suggested, without further explanation, that the
locked-out drivers did not yet have “proper training” and
therefore were not even qualified to perform work at the
Respondent’s “new operation.”

16 The Respondent argues that in a July 21 memorandum, it limited
its demand to acceptance of whatever operational changes were not
“inconsistent” with its prestrike contract offer. However, the Respon-
dent still did not explain the full array of changes it had made that it
considered “consistent” with its contract offer. Moreover, even if the
Respondent had done so, and was demanding acceptance only of
clearly-delineated operational changes that it had proposed prior to the
strike, the Respondent has offered no reason for imposing this condi-
tion only on the drivers for whom the Union was negotiating reinstate-
ment, and not on the individual drivers reinstated during the Respon-
dent’s direct dealing meetings in July. The Respondent stated that it
was concerned about potential grievances over the operational changes.
However, the Respondent, in its one-on-one meetings with the indi-
vidually reinstated drivers, did not demand that those drivers agree not
to challenge or grieve the changes. Indeed, the evidence suggests just
the opposite. The Respondent prepared a written, internal series of
questions and answers to guide its discussions during those one-on-one
meetings. The only reference to “operational changes” is the following
statement: “Until you are allowed to return to work, we are permitted
by law to make legitimate operational changes that may not comply
with certain seniority procedures. After you return to work, things will
go back the way they were.”
It is in this context that the Union sent its December 28
response, stating that the operational changes might be
subject to further negotiations, but had “nothing to do”
with the offer to return to work. Under these circum-
stances, we reject the Respondent’s argument that it law-
fully refused to reinstate the drivers because the Union’s
December 28 letter rejected the operational changes. The
Union’s letter stated that operational changes were ap-
propriate for future bargaining. Therefore, the letter is
consistent with a finding that the Respondent had not yet
given the Union a full and complete description of the
changes that had been made. Even if the Union’s letter
was an express rejection of the demand that the Union
accept the changes, under the principle of Eads, the Re-
spondent cannot deny reinstatement on the basis that the
Union failed to meet a condition that was never clearly
explained.
3. Assurances against work stoppages and
other conditions
Also as a condition of reinstatement, the Respondent
demanded that the Union give some type of assurance
against further work stoppages. In its December 23 let-
ter, the Union gave such assurances. It offered the same
assurances given by the individual drivers whom the Re-
spondent had reinstated through one-on-one meetings in
July. In response, however, the Respondent obfuscated
the “work assurances” condition and even appeared to
add new conditions for reinstatement.
For example, the Respondent’s December 27 letter
claimed that “changed circumstances . . . may impact our
position regarding a return to work . . . .” The Respon-
dent’s letter described “just a few” of these changed cir-
cumstances. In addition to the “continued operational
changes” mentioned above, the alleged changed circum-
stances affecting reinstatement included the following:
“[v]arious union and employee unfair labor practices,”
“[v]arious union and employee criminal acts,” “[h]iring
of replacement workers who are already trained to work
in the new operation,” and “[c]hanges in relative bargain-
ing strength as a result of the failed strike.” In the same
letter, the Respondent raised several additional issues:
(1) that the Union’s December 23 offer did not offer any
“collateral” or “meaningful remedy” if the Union failed
to live up to its promise to refrain from unannounced
work stoppages; (2) that the locked-out drivers “have not
had proper training for the new operation”; (3) that the
Union’s offer “comes right before the holidays” and the
Respondent’s “Y2K adjustments”; and (4) that the par-
ties were “operating in a unique fact and legal situation.”
Furthermore, when on February 4, the parties met to
discuss the reinstatement issue, the Respondent distrib-
uted a memorandum stating that “nothing in the union’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
recent correspondence reasonably permits or requires”
reinstatement of the locked-out drivers. The memoran-
dum then made the Respondent’s demands even more
unclear by raising numerous additional issues that would
need to be addressed before the reinstatement issue could
be resolved. Among other things, the Respondent ques-
tioned whether the Union or the drivers it represented
“might be lying” in giving their work assurances, how
the Respondent could be sure the Union would not “se-
cretly authorize” a wildcat strike, whether the Union
would post a bond to secure its promise against unan-
nounced work stoppages, and whether the individual
drivers would provide “security” or a “meaningful rem-
edy” against work stoppages. This February 4 memo-
randum was the Respondent’s last communication re-
garding conditions for reinstatement.
4. Conclusion
As the judge recognized, a fundamental principle un-
derlying any lawful lockout is that the union may end the
lockout, and return the employees to work, by agreeing
to the employer’s demands. Therefore, the union must
be fully informed of those demands. See Eads, supra at
712 (locked-out employees must be able to “knowingly
reevaluate their position and decide whether to accept the
employer’s terms”).
In the present case, we agree with the judge that the
Respondent failed to give the Union a clear set of condi-
tions for reinstatement. The Respondent imposed the
“operational changes” condition without fully explaining
what the operational changes were. Furthermore, after
the Union’s December 23 offer of assurances against
further work stoppages, the Respondent, in its December
27 and February 4 correspondence, continued to revise
its demands on that issue. Finally, the Respondent’s De-
cember 27 letter listed new conditions, aside from rea-
sonable work assurances and acceptance of the opera-
tional changes, that “may impact our position regarding a
return to work.” In short, the Respondent’s conditions
for reinstatement became a “moving target.” Because the
Respondent’s demands were unclear, the Union was un-
able to intelligently evaluate its position, and therefore
was powerless to end the lockout and obtain reinstate-
ment of the drivers. Accordingly, we find that the Re-
spondent violated Section 8(a)(3) and (1) by failing to
reinstate the locked-out drivers on and after December
27.
ORDER
The National Labor Relations Board orders that the
Respondent, Dayton Newspapers, Inc., Dayton, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees that they will lose their
jobs if they strike.
(b) Telling its employees that General Truck Drivers,
Chauffeurs, Warehousemen and Helpers, Local Union
No. 957, an affiliate of the International Brotherhood of
Teamsters, AFL–CIO (the Union), has cost them their
jobs by calling a strike.
(c) Encouraging its employees to rid themselves of the
Union by implying that they cannot be returned to work
from a strike while the Union and its business agent rep-
resented them.
(d) Placing its employees in layoff status, and failing
and refusing to recall them, because they have engaged
in a strike.
(e) Failing and refusing to reinstate economic strikers
in the absence of a legitimate and substantial business
justification.
(f) Failing and refusing to pay its employees placed in
layoff status bonuses owed pursuant to a “stay to the
end” package agreed to with the Union.
(g) Bypassing the Union and dealing directly with its
unit employees with regard to waivers of their right to
engage in a strike.
(h) Failing and refusing to reinstate its locked-out em-
ployees following the Union’s December 23, 1999 offer
to return to work, without giving the Union clear condi-
tions for reinstatement.
(i) In any like or related manner interfering with, re-
straining, 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) Within 14 days from the date of this Order, offer
James Lawson, Jack Truxel, Steve Watkins, Terry
Glueckert, Larry Siscoe, Gary Walter, Jerry Smith,
Robert Spreny, Kenneth Gordon, Robert Mays, Johnny
Fleming, Robert Michigan, and Thomas Dineen full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any employees hired to replace them, so long as positions
exist that have not been filled by Brian Acton, Edgar
Davenport, Dale Dorsten, Martin Pulley, Peter Thomp-
son, Edward Wilke, Michael Howard, Kenneth Marshall,
and Timothy Hehemann (collectively, the “locked-out
employees”). In the event that, following the discharge
of replacement employees and the reinstatement of the
locked-out employees, there are not enough remaining
positions available for James Lawson, Jack Truxel, Steve
Watkins, Terry Glueckert, Larry Siscoe, Gary Walter,
Jerry Smith, Robert Spreny, Kenneth Gordon, Robert
DAYTON NEWSPAPERS 659
Mays, Johnny Fleming, Robert Michigan, and Thomas
Dineen, they shall retain their recall rights as they existed
on June 27, 1999.
(b) Make James Lawson, Jack Truxel, Steve Watkins,
Terry Glueckert, Larry Siscoe, Gary Walter, Jerry Smith,
Robert Spreny, Kenneth Gordon, Robert Mays, Johnny
Fleming, Robert Michigan, and Thomas Dineen whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(c) Make James Lawson, Jack Truxel, Steve Watkins,
Terry Glueckert, Larry Siscoe, Gary Walter, Jerry Smith,
Robert Spreny, Kenneth Gordon, Robert Mays, Johnny
Fleming, Robert Michigan, and Thomas Dineen whole
for all benefits they were owed under its “stay to the
end” package, including the $10,000 bonus, with interest
as set forth in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs,
unlawful failure to reinstate, unlawful failure to recall,
and the unlawful denial of the “stay to the end” bonus,
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the layoffs, failure to
reinstate, failure to recall, and bonus denial will not be
used against them in any way.
(e) Within 14 days from the date of this Order, offer
Brian Acton, Edgar Davenport, Dale Dorsten, Martin
Pulley, Peter Thompson, Edward Wilke, Michael How-
ard, Kenneth Marshall, and Timothy Hehemann full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any employees hired to replace them.
(f) Make Brian Acton, Edgar Davenport, Dale Dorsten,
Martin Pulley, Peter Thompson, Edward Wilke, Michael
Howard, Kenneth Marshall, and Timothy Hehemann
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure to re-
instate Brian Acton, Edgar Davenport, Dale Dorsten,
Martin Pulley, Peter Thompson, Edward Wilke, Michael
Howard, Kenneth Marshall, and Timothy Hehemann,
and within 3 days thereafter notify each of them in writ-
ing that this has been done and that the failure to rein-
state will not be used against them in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facilities in Dayton and Franklin, Ohio, copies of the
attached notice marked “Appendix.”17 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained 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. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since June 1, 1999.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply with this Order.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten our employees that they will
lose their jobs if they strike.
WE WILL NOT tell our employees that General Truck
Drivers, Chauffeurs, Warehousemen and Helpers, Local
Union No. 957, an affiliate of the International Brother-
hood of Teamsters, AFL-CIO (the Union), has cost them
their jobs by calling a strike.
WE WILL NOT encourage our employees to rid them-
selves of the Union by implying that they cannot be re-
turned to work from a strike while the Union and its
business agent represent them.
WE WILL NOT place our employees in layoff status, and
fail and refuse to recall them, because they have engaged
in a strike.
WE WILL NOT fail and refuse to reinstate economic
strikers in the absence of a legitimate and substantial
business justification.
WE WILL NOT fail and refuse to pay our employees
placed in layoff status bonuses owed pursuant to a “stay
to the end” package agreed to with the Union.
WE WILL NOT bypass the Union and deal directly with
unit employees with regard to waivers of their right to
engage in a strike.
WE WILL NOT fail and refuse to reinstate our locked-
out employees after the Union’s offer to return them to
work, without giving the Union clear conditions for rein-
statement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer James Lawson, Jack Truxel, Steve Watkins,
Terry Glueckert, Larry Siscoe, Gary Walter, Jerry Smith,
Robert Spreny, Kenneth Gordon, Robert Mays, Johnny
Fleming, Robert Michigan, and Thomas Dineen full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, dismissing, if necessary,
any employees hired to replace them, so long as positions
exist that have not been filled by Brian Acton, Edgar
Davenport, Dale Dorsten, Martin Pulley, Peter Thomp-
son, Edward Wilke, Michael Howard, Kenneth Marshall,
and Timothy Hehemann (collectively, the “locked-out
employees”). In the event that, following the discharge
of replacement employees and the reinstatement of the
locked-out employees, there are not enough remaining
positions available for James Lawson, Jack Truxel, Steve
Watkins, Terry Glueckert, Larry Siscoe, Gary Walter,
Jerry Smith, Robert Spreny, Kenneth Gordon, Robert
Mays, Johnny Fleming, Robert Michigan, and Thomas
Dineen, they shall retain their recall rights as they existed
on June 27, 1999.
WE WILL make James Lawson, Jack Truxel, Steve
Watkins, Terry Glueckert, Larry Siscoe, Gary Walter,
Jerry Smith, Robert Spreny, Kenneth Gordon, Robert
Mays, Johnny Fleming, Robert Michigan, and Thomas
Dineen whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
with interest.
WE WILL make James Lawson, Jack Truxel, Steve
Watkins, Terry Glueckert, Larry Siscoe, Gary Walter,
Jerry Smith, Robert Spreny, Kenneth Gordon, Robert
Mays, Johnny Fleming, Robert Michigan, and Thomas
Dineen whole for all benefits they were owed under our
“stay to the end” package, including the $10,000 bonus,
with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoff, failure to reinstate, failure to recall, and denial
of “stay to the end” bonuses to James Lawson, Jack
Truxel, Steve Watkins, Terry Glueckert, Larry Siscoe,
Gary Walter, Jerry Smith, Robert Spreny, Kenneth
Gordon, Robert Mays, Johnny Fleming, Robert Michi-
gan, and Thomas Dineen, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the layoffs, failure to reinstate, failure
to recall, and bonus denial will not be used against them
in any way.
WE WILL, within 14 days from the date of this Order,
offer Brian Acton, Edgar Davenport, Dale Dorsten, Mar-
tin Pulley, Peter Thompson, Edward Wilke, Michael
Howard, Kenneth Marshall, and Timothy Hehemann full
reinstatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, dismissing, if
necessary, any employees hired to replace them.
WE WILL make Brian Acton, Edgar Davenport, Dale
Dorsten, Martin Pulley, Peter Thompson, Edward Wilke,
Michael Howard, Kenneth Marshall, and Timothy He-
hemann whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful fail-
ure to reinstate Brian Acton, Edgar Davenport, Dale Dor-
sten, Martin Pulley, Peter Thompson, Edward Wilke,
Michael Howard, Kenneth Marshall, and Timothy He-
hemann, and WE WILL, within 3 days thereafter, notify
DAYTON NEWSPAPERS 661
each of them in writing that this has been done and that
the failure to reinstate will not be used against them in
any way.
DAYTON NEWSPAPERS, INC.

Donald A. Becher, Esq., for the General Counsel.
James M. Hill, Esq. (McNamie & Hill Co., L.P.A.), of Beaver-
creek, Ohio, and Brett Thurman, Esq., of Dayton, Ohio, for
the Respondent.
James R. Doll, Esq., for the Charging Party.

DECISION

FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. At 10
p.m. on Saturday, June 26, 1999, General Truck Drivers,
Chauffeurs, Warehousemen and Helpers, Local Union No. 957,
an affiliate of the International Brotherhood of Teamsters,
AFL–CIO (the Union), struck and picketed Respondent Dayton
Newspapers, Inc., for 24 hours. As a result of this brief strike,
the complaint alleges, Respondent laid off and did not recall
many of its drivers, withheld benefits from them, and commit-
ted other acts in violation of Section 8(a)(3), (5), and (1) of the
National Labor Relations Act. Respondent denies that it vio-
lated the Act in any manner.1
Jurisdiction is admitted. Respondent, a corporation, with its
principal office and place of business in Dayton, Ohio, is en-
gaged in the publication of the Dayton Daily News, a daily
newspaper. During the year ending March 24, 2000, Respon-
dent derived gross revenues in excess of $200,000, subscribed
to various interstate news services, including the Associated
Press, published various nationally syndicated features, includ-
ing Blondie, and advertised various nationally sold products,
including automobiles manufactured by General Motors Corpo-
ration. I conclude that Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union has for over 40 years represented Respondent’s
drivers who deliver its newspaper, either the finished one or
different sections, such as preprinted advertisements or comics,
to branches or distribution centers throughout the Dayton area
that are put together and delivered by individual carriers who
are independent contractors. Some drivers also deliver papers to
hospitals and convenience stores. Respondent has recognized
the Union as these employees’ exclusive representative in suc-
cessive collective-bargaining agreements, the most recent of
which was effective by its terms from January 28, 1996,
through November 15, 1998, and contained a provision that
guaranteed the lifetime employment of 13 drivers. I conclude

1 This case was tried in Dayton, Ohio, on August 7–9, 2000. The Un-
ion filed its charge in Case 9–CA–36894 on July 7 and amended it on
July 23 and November 29, 1999. The Union filed additional charges on
August 12, 1999 (Case 9–CA–36981), and February 8, 2000 (Case 9–
CA–37385), the latter being amended on March 16, 2000. The second
consolidated complaint was issued on March 24, 2000, and subse-
quently amended. The allegations of the complaint are supported by
duly and timely filed charges, and I reject each of Respondent’s conten-
tions, repeated throughout its brief, to the contrary.
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
In the spring of 1998, Respondent advised the Union that it
intended to build a new facility in Franklin, Ohio, about 18
miles from where its 50–60-year-old building in downtown
Dayton, with 30-year-old presses, was located. That facility
was well past its prime. The paper was published on many
floors, and access to the loading docks was through a narrow
entrance to the interior of the building, which limited the load-
ing of newspapers to 12-foot trucks. The new facility was to be
“state-of-the-art,” enabling newspapers to be loaded into 45-
foot trucks and distributed to the same centers as before, but
requiring many fewer drivers because of the increased capaci-
ties of the larger trucks. As a result, Respondent advised John
Burns, the Union’s vice president and business representative,
that 13 drivers who had the least seniority, not another 18 driv-
ers, including those who were guaranteed their jobs, would be
laid off. However, to induce those drivers to remain as employ-
ees until they were no longer needed, in October 1998 Respon-
dent offered all full-time employees and part-time employees
with more than 1 year of service a “stay to the end bonus” of
$10,000 or training for an “A” class commercial driver’s li-
cense (CDL), which would be required to drive the larger
trucks and the dollar difference between the cost of that training
and $10,000. Part-time employees with less than 1 year of ser-
vice were offered the same kind of bonus, but a reduced
amount of $2500. The offer stated:

This offer is contingent upon the employees staying actively
at work, and in good standing, until their release date. Release
dates will be determined periodically, by seniority, based on
operational needs and the transition schedule. As now
planned, release dates should be in July, 1999.

Burns was advised of this offer and not only did not oppose it
but also appears to have agreed to it. On January 18, 1999,
Respondent’s then human resources director, Madolyn
Mumma, advised Burns that Respondent would begin layoffs of
employees starting on April 15, 1999, and that additional lay-
offs were expected, on dates yet to be determined, throughout
the rest of the year.
Negotiations between the parties for a new agreement began
in August 1998. When and why the otherwise cordial relation-
ship between the parties over many years deteriorated is not
wholly clear. The presence of Brett Thurman, Respondent’s
general counsel and soon-to-be human resources manager, at
the negotiating table was not especially welcome because, by
his own admission, he “pissed people off.” He was replaced by
Joseph, who tried to keep him quiet. Thurman clearly showed
his distaste for the Union. He complained that the dealings
began to deteriorate in 1996 when Respondent attempted to
change the way it dealt with its Unions (Respondent dealt with
other unions, including a different local of the Teamsters, rep-
resenting other groups of employees, and the Union, which
represented five other units). Those other unions agreed to
work with Respondent, but the Union balked. The Teamsters
were “pretty proud of the fact that they’re different.” They
“routinely made fun of the other Unions. Called them pussy’s
and John Burns said you want us to be your hay boy.” “[T]the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662
Teamsters were just not going to take what the other Unions
had agreed to.” Thurman noted that he had collective-
bargaining agreements with nine of the ten non-Teamsters un-
ions representing Respondent’s other employees. Although the
Union “didn't stand in the way of everything . . . they certainly
didn't cooperate on everything either.” He complained that the
Union had filed “probably fifty labor board charges . . . in the
last two years” and that he anticipated “the possibility of har-
assment type lawsuit. Not because they really thought they
could win but because it would be a way to harass us.” He
complained of a loud Teamsters’ demonstration which had
taken place outside Respondent’s facility in November 1998.
He complained that the Union’s leadership was “holding the
employees hostage against their will.” I discredit Thurman’s
denial that he bore no “anti-Union animus.”
Burns, the Union’s chief negotiator, testified that the defin-
ing moment in the sour relations between the parties came in
late November 1998 when he and Newspaper Manager Mike
Joseph agreed, at a session at which Thurman was not present,
to resolve the issues that separated them and he agreed to
schedule a ratification vote for the members. But, when he
received what Joseph wrote, the document was completely
inconsistent with what Joseph had promised; and Burns never
let the members vote. Joseph seemed to think that what he
wrote was exactly what he had offered, and I credit him. What
apparently upset Burns so much was omitted in a letter he sent
to Joseph shortly after this incident, never complaining that
Joseph went back on his word. Indeed, Thurman offered to let
Burns pick any offer that Respondent had made on any of the
points of contention and schedule a ratification vote. Burns
never did that, either, indicating that he understood that he had
made a bad deal at the bargaining table. And so I find that what
Burns was complaining about was simply not true. On the other
hand, Burns apparently realized that what he had agreed to with
Joseph would not be ratified and decided to save face by not
offering the tentative agreement to the drivers. Whether that
alone was what changed the manner in which the parties dealt
with one another may be debated. The result was apparent.
Burns complained

on several occasions, Mr. Thurman would look directly at
the—the members of the Bargaining Committee who were
the Union stewards and refer to John Doll [the Union’s coun-
sel] and I and say these guys are not on your side, they're not
helping you. They're leading you down the primrose path. If
you follow them, you will go down in flames along with
them. Your Union is—does a poor job of representing you.

In early June 1999,2 during a meeting called by Respondent
to discuss with the drivers the transition to the new Franklin
facility, driver Tim Hehemann asked about the status of nego-
tiations. According to Hehemann, Joseph complained that he
had quite a bit of trouble with Burns and Doll: “he didn't have
much use for them, and they were leading us to our own de-
mise.” Hehemann said that matters were serious: the Union had
taken a strike vote, and the strike could take place at any time.
Joseph said that the drivers did not want to do that: “you won't

2 All dates are in 1999, unless otherwise indicated.
be working here any more, and that would be it for you.” One
other witness, driver Terry Glueckert, testified to this on behalf
of the General Counsel; but he recalled only that the subject of
contract negotiations did arise and that an employee advised
Joseph that a strike vote had been taken. Glueckert denied that
Joseph threatened that employees who struck would be fired,
but recalled that Joseph was not happy hearing about the strike
vote and said that it would be a mistake. One would think that,
at a meeting of drivers, someone would have been able to cor-
roborate Hehemann’s testimony and that, if a direct threat had
been made, that would certainly be remembered. On the other
hand, Joseph never directly denied that this occurred.
Although the Union had taken a strike vote in May, a fact
that Respondent certainly expected because it had contingency
plans in place in case there was a strike, the Union never ad-
vised Respondent of when it would call a strike. Its strike on
June 26 was without notice and caused a flurry of activity
among Respondent’s management. Simply put, a newspaper is
a perishable, which loses its value unless it is distributed timely
to its readers. Especially on Sundays, it is important that the
paper be delivered early. No one likes to read the Sunday paper
that evening. So Respondent put its contingency plans into
effect, using alternate means to distribute its paper, and that
was for the most part successful, although some distribution
was late. No advertiser made a claim for a return of its costs,
however; but the impact of repeated “quickie,” unscheduled
strikes, without notice, was surely of the utmost concern to
Respondent.
That showed when Joseph arrived at the picket line at
Respondent’s downtown facility and threatened Hehemann that
the Union had just cost the strikers their jobs. “These guys [the
Union representatives] just cost you guys all—cost all you guys
your jobs,” Joseph said, according to Union Business Agent
Ellis Wood. Business Agent Fred Romine essentially corrobo-
rated Wood’s recollection. Hehemann’s somewhat different
recollection of Wood trying to intervene on his behalf, and
Joseph stating to Wood, “So you’re the son-of-a-bitch respon-
sible for the drivers losing their jobs” is not really substantial,
because the import of Joseph’s statement was the same. The
Union called the strike, and the result of that strike was that
Hehemann and the strikers were going to lose their jobs. Re-
spondent tried to justify this blatant threat that the strikers had
lost their jobs, repeated by Joseph to Burns in the presence of
driver Brian Acton at the Penske lot where Respondent parked
its trucks, with a convoluted explanation of Joseph’s thought
processes to explain what he remembered saying, “You’re put-
ting people at risk,” which, even if I believed his testimony,
which I do not, might also be considered threatening. That is
unavailing. Whether Joseph’s comments violated the Act must
be evaluated by an objective test of what a reasonable listener
would hear, Medeco Security Locks, Inc. v. NLRB, 142 F.3d
733 (4th Cir. 1998); Multi-Ad Services, 331 NLRB 1226, 1228
fn. 9 (2000); and what was heard was clearly the announcement
that, by engaging in a concerted, protected activity, a strike, the
drivers had lost their jobs. Finally, Joseph never denied his
conversation with Burns directly, but testified only that he
might have had a conversation with Burns, but “with every-
thing that was going on” and his admission that “there was no
DAYTON NEWSPAPERS 663
sleep that entire period,” he did not “really recall.” I find that
Joseph made these threats.
The following morning, June 27, Burns, having exercised his
muscles in attempting to stop the paper’s distribution, notified
Respondent that the Union was advising its member-drivers to
return to work at 10 p.m. that evening. The drivers who had
been scheduled to work on Saturday night were primarily (with
two or three exceptions) the ones with the least seniority, and
so were the ones who were scheduled to be laid off and not
transferred to Franklin in any event. When those drivers re-
turned, as well as other drivers who had not been scheduled to
work the 24 hours of the strike, Respondent refused to permit
any of them to work (with the exception of three who had
crossed the picket line the night before), wanting time, Respon-
dent contended, to understand the ramifications of the Union’s
stoppage. But the employees’ recollections were different, with
Joseph clearly stating that their loss of work opportunities was
caused by Respondent’s not wanting to deal with the Union.
Thus, Joseph told Hehemann that the Company was “not in
need of 957’s services” and that Joseph would contact him
when or if he was to work again. When Hehemann restated his
desire to return, Joseph said that the problem was not with him
as a driver; but, as long as the Union and Burns represented
him, Joseph could not see how the problem could be resolved.
Joseph repeated to each driver as they arrived for work that
evening the same statement—that “957’s services” were not
needed. Hehemann’s testimony was essentially corroborated by
Glueckert and driver James Lawson. Joseph substantially ad-
mitted that he said that the Union’s services were not needed at
that time; and, although Mumma denied much of this testi-
mony, she also conceded that she was tired at that time and that
she could not recall much of what was said. Finally, I note that,
when Joseph telephoned driver Brian Acton the next day, Jo-
seph repeated that Respondent no longer needed the services of
“Local 957 drivers.”
Joseph’s statement to Hehemann on June 27 that Joseph
could not see how the problem could be resolved as long as
Hehemann and, by implication, the other drivers were repre-
sented by the Union constituted an inducement to rid them-
selves of the Union, in violation of Section 8(a)(1) of the Act.
Implying that employees could wind up in better work circum-
stances if they rid themselves of their bargaining representative
violates the Act. Marshalltown Trowel Co., 293 NLRB 693,
697 (1989). Joseph’s statement to Hehemann that the Union’s
strike had cost the employees their jobs constituted an unlawful
threat of discharge for engaging in a strike. Because I found
Hehemann (who was not credible in denying that picketers
blocked ingress and egress of trucks on the night that the strike
began) more credible than Joseph in his testimony about these
events, I similarly credit the final allegation involving Joseph’s
threat at the June meeting that, if he struck, he would not be
working for Respondent anymore. I note, particularly, that what
followed the June meeting was the very fact that Joseph threat-
ened: the strike did result in the loss of the employees’ jobs.
Indeed, his earlier comments about Doll and Burns leading the
employees to their own demise implied that, if the employees
abandoned the Union, they would have no more problems. I
thus conclude that Respondent committed these additional vio-
lations of Section 8(a)(1) of the Act.
Respondent, having rejected the attempts of various employ-
ees to return to work on Sunday night, continued in operation
utilizing its contingency plans. It also followed up with corre-
spondence. On July 1, Thurman wrote to Burns, declining his
offer to return to work, noting: “We cannot meet the needs of
our readers and advertisers on a reliable basis under the offer
you have made [for reinstatement] and therefore must continue
under the operational plan adopted since the strike began . . . .”
He added that “due to recent events, we have been forced to
make a number of changes to our operation”; and, “[a]s a result
of these changes,” Respondent placed on unpaid leave the 18
drivers (including those guaranteed employment), who were the
ones slated to be transferred to Franklin, stating to them that
Respondent “had retained an alternate source for delivery of its
newspapers until we receive an acceptable commitment from
[the Union] to make our deliveries without disruption. There-
fore, work will not be available to drivers unless they can be
relied on.” Respondent also laid off the 13 employees who were
not going to be transferred to the new Franklin facility, by sen-
iority: Lawson, Jack Truxel, Steve Watkins, Glueckert, Larry
Siscoe, Gary Walter, Jerry Smith, Robert Spreny, Kenneth
Gordon, Robert Mays, Johnny Fleming, Robert Michigan, and
Thomas Dineen. There was no mention in that letter that the
Union could make any “acceptable commitment” to ensure
their recall.
In addition, on or about June 30 or July 1, Joseph began call-
ing the 18 drivers on unpaid leave to ask them to meet privately
with him. Many agreed to do so; some did not. Those one-on-
one sessions with Joseph, without notice to the Union, were
held with the purpose of reinstating the drivers, conditioned on
their personal promise to work steadily. Employees were asked
if they would work despite the fact that there was a picket line.
Those who answered that they would were seen by Stan Rich-
mond, Respondent’s vice president of operations, who exacted
the same promise. Drivers, such as Gerald Kratzer, made the
commitment that Joseph sought. About six or seven were taken
back. Others, such as Peter Thomson, Kenneth Marshall, and
Dale Dorsten, were asked for their commitment not to cross the
picket line and refused to give that commitment. Some ex-
plained that they were members of the Union and would have
to follow the Union’s direction. They were not offered em-
ployment. On July 9, Respondent followed up with 7 of the 18
drivers who had not waived their right to strike that they re-
mained on unpaid status until they gave “proper work assur-
ances.”
In making these findings, I have rejected Joseph’s testimony
that he did not discuss strikes or work stoppages with any of the
drivers and that the subject of a potential picket line arose only
in a conversation with one employee. Directly contrary to Jo-
seph’s testimony are forms that Respondent filed when the
employees made claims for unemployment benefits, declaring
that employees were put back to work if they promised to re-
port to work on a reliable basis and would not engage in inter-
mittent work stoppages. The reason that Respondent set up
these meetings was to get its drivers to return to work and to
make deliveries without disruptions, as Respondent stated in its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
July 1 letters, and to work and deliver on schedule, as Joseph
testified. I was not impressed with Joseph’s denial that he was
even aware that the Union had offered to return to work, espe-
cially because Thurman testified that Joseph had shown him
Joseph’s copy of the Union’s June 27 offer to return to work.3
Kratzer, in particular, had no reason to misstate the facts, be-
cause he was allowed to come back to work after meeting with
Joseph and had resigned from the Union. Finally, drivers testi-
fied that dispatcher Mike Manzo attended their meetings, yet
Respondent did not call Manzo or Richmond, whom Kratzer
saw, to refute the testimony of the General Counsel’s witnesses.
I draw an adverse inference from that failure to call those wit-
nesses.
Respondent’s July 1 letter, replying to the Union’s June 27
letter, stated, as quoted above, that Respondent had hired others
to deliver its newspapers until it received “an acceptable com-
mitment from [the Union] to make [its] deliveries without dis-
ruption.” Respondent thus recognized that it was the Union, as
the employees’ exclusive bargaining agent, that had to give the
commitment. Instead of dealing exclusively with the Union,
however, Joseph presented Respondent’s conditions—not to
strike or to engage in a work stoppage, a waiver of the employ-
ees’ Section 7 right—directly to the employees in individual
meetings. Respondent was not, however, privileged to bypass
the Union and negotiate with individual employees concerning
such a condition, thereby driving a wedge between the employ-
ees and their representative,4 threatening to erode the position
of the Union, and impairing the employees' enjoyment of the
benefits of their collective strength and bargaining power.
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683–684
(1944); Emporium Capwell Co. v. Western Addition Commu-
nity Organization, 420 U.S. 50, 62 (1975); NLRB v. Triple A
Fire Protection, 136 F.3d 727, 735 (11th Cir. 1998). I conclude
that Respondent violated Section 8(a)(5) and (1) of the Act.
Contrasted with Respondent’s treatment of the 18 drivers
placed on unpaid leave, Joseph did not contact the 13 drivers
placed on layoff about any one-on-one meetings to see if they
would give assurances that would allow them to return to work,
nor did Respondent send them letters about how they could get
their jobs back. It will be remembered that the 13 drivers com-
prised the majority of those who struck on June 26. When they
ended their strike and requested to return to work, Respondent
had not replaced them, except to the extent that their work was

3 I was also unimpressed by Joseph’s repeated denials that he was
Respondent’s principal spokesman at negotiations and that, the night of
the strike, after being told that there was a strike going on, he ap-
proached Hehemann and some of the union representatives, all wearing
signs, and asked, “What’s going on?” because he “needed some verifi-
cation of what was occurring.”
4 Dorsten testified:
I kind of told him [Joseph], you know, I go I feel like I’m—
we’re like a pawn in between the Company and the Teamsters. I
go if I agree to come back to work, I’m turning against the Team-
sters, and if I go with the Teamsters, I’m turning against the news.
And he goes, you’re right. He goes, I get paid, John gets paid, but
you’re not going to get paid as long as you’re out.
And, you know, I go, that’s just not right, you know. And he,
well, that’s the way it is. He goes it’s like Thanksgiving, you’re
the wishbone.
being performed by Vance International Companies (Vance),
the company that Respondent had retained to hire drivers and
security as part of its contingency plans in the event that there
was a strike. Respondent does not contend that those drivers
employed by Vance were permanent replacements; yet Re-
spondent first threatened on the evening of June 27, when the
drivers reported to work, that it was not going to use any of the
drivers represented by the Union. It was 4 days later, on July 1,
that Respondent first advised the Union that it was laying off
the 13 drivers, at which time Respondent was still using Vance
to deliver the papers. There was no proof that any of their jobs
had been abolished during the strike or the succeeding 4 days.
In NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967), the
Court wrote:

Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. § 152(3))
provides that an individual whose work has ceased as a con-
sequence of a labor dispute continues to be an employee if he
has not obtained regular and substantially equivalent em-
ployment. If, after conclusion of the strike, the employer re-
fuses to reinstate striking employees, the effect is to discour-
age employees from exercising their rights to organize and to
strike guaranteed by §§ 7 and 13 of the Act (61 Stat. 140 and
151, 29 U.S.C. §§ 157 and 163). Under §§ 8(a)(1) and (3) (29
U.S.C. §§ 158(1) and (3)) it is an unfair labor practice to inter-
fere with the exercise of these rights. Accordingly, unless the
employer who refuses to reinstate strikers can show that his
action was due to “legitimate and substantial business justifi-
cations,” he is guilty of an unfair labor practice. NLRB v.
Great Dane Trailers, 388 U.S. 26, 34 (1967). The burden of
proving justification is on the employer. Ibid. It is the primary
responsibility of the Board and not of the courts “to strike the
proper balance between the asserted business justifications
and the invasion of employee rights in light of the Act and its
policy.” Id., at 33–34. See also NLRB v. Erie Resistor Corp.,
373 U.S. 221, 228–229, 235–236 (1963).

An employer’s unlawful refusal to reinstate economic strikers
is conduct so inherently destructive of employee rights that
evidence of specific antiunion motivation is not necessary to
establish a violation of the Act. NLRB v. Great Dane Trailers,
supra; Laidlaw Corp., 171 NLRB 1366, 1369 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).
Respondent contends that it did not discharge the 13 em-
ployees, but merely locked them out. Implicit in a lockout is the
possibility that, if the Union acquiesced in some conditions that
Respondent imposed and the underlying labor dispute were
resolved, the employees would get their jobs back. Eads Trans-
fer, 304 NLRB 711, 712 (1991), enfd. 989 F.2d 373 (9th Cir.
1993). But there is no such evidence here. Respondent contin-
ued to use drivers supplied by Vance until at least September
19, according to Respondent’s records, and into October, ac-
cording to Charles Rinehart, Respondent’s senior vice presi-
dent. Despite Thurman’s concession that the 13 drivers had
recall rights under the collective-bargaining agreement, Re-
spondent did not recall or attempt to recall them as positions
became available. Rather, on July 11, with these 13 employees
on layoff, with recall rights (so Thurman testified) under the
expired collective-bargaining agreement, Respondent adver-
DAYTON NEWSPAPERS 665
tised for full-time CDL and class A drivers, offering them sign-
ing bonuses. As of July 12, Respondent began to accept appli-
cations for drivers. Two were hired on July 21. Two others
were hired on July 23 and 29. By February 2000, Respondent
had hired 11 new drivers.
Respondent contends that these 13 employees were always
subject to recall and that the replacements for them were never
intended to be permanent. Respondent did hire two of them,
Fleming and Smith, but they first had to quit their employment
and then assure Respondent that they would not engage in any
strike. Thus, Thurman wrote that

Drivers currently laid off are eligible for recall only by senior-
ity. You cannot hire someone who is already hired and eligi-
ble for recall. This person can be rehired, however, if they quit
the company. They will lose their seniority, although that may
not mean anything in the future.

He wrote that all applicants, including laid-off drivers who quit and
reapplied, are not permanent replacements. Thurman advised Jo-
seph that the hiring could change the ways of the expired collec-
tive-bargaining agreement, because seniority would no longer mat-
ter; and the “replacement workers (whether re-hired, [like Fleming
and Smith] or new employees) would keep their jobs even if the
current situation one day were to end.” Thurman wrote a memo-
randum to Joseph, in preparation for his one-on-one meetings,
which Joseph never used, stating that, as of July 14, “the replace-
ment workers will not displace any employee who can be trusted to
show up for work as scheduled . . . although that can change later
on.”
But there was little that showed that the replacements were
not permanent and were merely temporary. On Respondent’s
hire forms, there were boxes for regular and temporary em-
ployees. None of the forms “temporary” designations were
filled in, although Thurman explained that “temporary” really
meant that the employee was hired to work a specified period
of time. More to the point, Respondent never called any of the
people involved in the hiring, either its managers and supervi-
sors, or the employees themselves, to prove the nature of the
relationship that resulted from their employment, from which I
draw the conclusion that their testimony would not have fa-
vored Respondent. As a result, I conclude that the replace-
ments, at least on this record, were permanent as to the laid-off
employees, although they might have lost their jobs to those
guaranteed jobholders who committed to working and not strik-
ing.
Whatever doubt there may have been about the status of the
laid-off employees was resolved by the following incident: On
July 22, Respondent published in its newspaper an article about
the fact that the Teamsters intended to launch a boycott against
the newspaper. In the article, the paper’s publisher, Brad Till-
son, was quoted as saying that “the laid-off drivers would re-
turn once the company was assured that they would not disrupt
business.” Thurman immediately clarified that article. He wrote
to Burns the same day that:

Something got lost in the translation in today’s newspaper ar-
ticle. There is no change in our position. The layoffs are un-
conditional, and are based solely on the changes in our opera-
tion since the strike. Assurances regarding disruptions will
have no effect on the layoffs, but are important concerning
employees who have not been laid off.

As a result, I find that, under Ancor Concepts, Inc., 323
NLRB 742, 744 (1997), enf. denied 166 F.3d 55 (2d Cir. 1999),
Respondent’s hiring of permanent replacements is inconsistent
with a lawful lockout. But, no matter what the status of their
replacements, these 13 drivers were permanently laid off,
which is the equivalent of a discharge. There was nothing that
they could do and no assurance that they could give that would
enable them to get their jobs back. Because they were not
locked out but permanently laid off because they had struck or
might strike, their layoff was unlawful. See, e.g., Jo-Del Inc.,
324 NLRB 1239, 1244 (1997); National Fabricators, Inc., 295
NLRB 1095, 1096 (1989). Moreover, because they were not a
part of the lockout, they should have been recalled to employ-
ment prior to Respondent’s hiring of employees from the street
as required by Laidlaw; Ramada Inn, 201 NLRB 431, 436–437
(1973); Daniel Construction Co., 264 NLRB 569, 606–607
(1982), enfd. 731 F.2d 191 (4th Cir. 1984); and pursuant to
Respondent’s contractual requirement to recall them.
Respondent contends that the 13 drivers were due to be laid
off, and that is undoubtedly true. Thurman testified that the
drivers who struck were the “ones who were about to be laid
off in a couple of weeks,” and Thurman gave the Union notice
that Respondent was to stop using the printing presses at the
Dayton facility after August 28, at which time Respondent
would no longer need its smaller trucks to enter into the narrow
entrance to the downtown building. But it is also true that their
layoff dates were permanently and irrevocably accelerated only
by reason of the fact that they engaged in a protected activity.
Had they not, Respondent would probably have laid them off in
due course, but certainly not on June 27. So, on that day, possi-
bly four days later, July 1, the 13 were discharged, because
there was nothing that they could do to get their jobs back,
except, as in the case of Fleming and Smith, to resign from the
job and then reapply as a new employee, without seniority, thus
permitting Respondent to avoid the obligation of recalling
them. It is hornbook law that an economic strike is deemed to
be Section 7 protected and concerted activity, and it was an
unfair labor practice for Respondent to discharge these employ-
ees for engaging in their strike. E.g., NLRB v. U.S. Cold Stor-
age Corp., 203 F.2d 924 (5th Cir. 1953), cert. denied 346 U.S.
818 (1953). Respondent’s discharge is conduct so inherently
destructive of employee rights that evidence of specific anti-
union motivation is not necessary to establish a violation of the
Act. Laidlaw Corp., 171 NLRB at 1369.
Respondent, faced with the possibility of more “quickie”
strikes, was entitled to change its production plans to meet the
threat of the Union’s actions. The original transition plan con-
templated that the layoff of drivers would begin on a staggered
basis once the newspaper began to be printed at the Franklin
facility. Respondent started some of the production at the
Franklin facility ahead of the schedule that it had originally
planned, but how much affected the trucking work is difficult to
establish on this record. As of July 6, the transfer of at least
some printing was still not to occur until July 19. On August 9,
Thurman stated at negotiations: “We are not at the end yet, in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
terms of switching 100 percent of the main sheet down to
Franklin.” At least some printing continued at the Dayton facil-
ity until August 28. Nonetheless, Respondent claims that it had
a valid and legitimate reason for not recalling the drivers be-
cause they did not have the proper credentials for driving the
new, longer trucks.
Thurman’s claim is inaccurate, because there is no evidence
that a class A endorsement was required for the work that was
performed on June 27. Respondent did not completely shift
over to trucks requiring a class A license until mid-August at
the earliest. Thurman’s testimony was contradicted by Joseph,
who testified that whether or not a driver had a class A license
was not a concern, because Respondent’s “fleet was not made
up of exclusively Class ‘A’ trucks.” Furthermore, Thurman
acknowledged that he did not even know whether the laid-off
drivers has class A endorsements, although he did not think that
they did. Hehemann, however, testified that he did. Respon-
dent’s own newspaper advertisements stated that it was looking
to hire both drivers with a CDL license and drivers with class A
endorsements and offered two separate levels of signing bo-
nuses for each category of driver. Driver Jack Klause continued
to work although he initially did not have the class A license.
Others, Fleming and Smith, were rehired after first being given
time to get their proper endorsement. For all these reasons, I
conclude that Respondent had no legitimate and substantial
business justification to lay off 13 of its drivers permanently
and that Respondent violated Section 8(a)(3) and (1) of the Act
by doing so.
The General Counsel contends alternatively that, even if Re-
spondent’s permanent layoff of the 13 employees is not inher-
ently destructive of their rights, Respondent discharged them
because of their support of the Union and their protected activ-
ity of striking. The General Counsel has established a prima
facie Section 8(a)(3) case under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983); Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999); Manno Electric, 321 NLRB
278, 280 fn. 12 (1996). Respondent displayed repeated animos-
ity towards the Union and absolute outrage about the unan-
nounced strike. Joseph did not want to rehire drivers who were
represented by the Union. Joseph threatened that those who
engaged in a strike would not work for Respondent any more
and stated, at the time of the strike, that the Union was respon-
sible for the employees losing their jobs. Most of the individu-
als who actually struck were these 13 employees, and the only
reason that they were laid off was that they were “957 drivers”
who had engaged in the protected activity of striking. The bur-
den thus shifted to Respondent to show some nondiscrimina-
tory basis for not reinstating or recalling them before Respon-
dent hired permanent replacement drivers. Thurman’s assertion
that the primary reason for not allowing them return was their
lack of class A licenses was false. This was not a factor in who
was or was not reinstated or allowed to work. I thus conclude
that the only reason that Respondent laid these drivers off per-
manently was that they engaged in concerted and protected and
union activities and that Respondent violated Section 8(a)(3)
and (1) of the Act.
It follows logically from these findings and conclusions that
Respondent unlawfully refused to pay the bonus that it prom-
ised to the 13 laid-off drivers for staying until their release date.
Respondent contends that the drivers did not satisfy the condi-
tion precedent, that they would stay until Respondent had made
the transition under the initial plan, thereby obtaining for it the
operational stability that was needed to make the transition.
Thus, it argues that the bonuses did not achieve their desired
objective, namely, to keep a stable, reliable work force. The
bonus was not conditioned on a waiver of an employee’s right
to strike, Respondent contends that the reason that it withheld
the bonus was not that the employees engaged in the 1-day
strike. Rather, Thurman testified, it was the combination of
missing one day unannounced and then not giving any reason-
able work assurance afterward. The fallacy of his testimony, as
we have seen, is that there was no assurance that the drivers
could have given. Respondent’s contention that the laid-off
drivers did not work until the transition had been completed
and that they did not work until the new facility opened is ir-
relevant. That was not what Respondent committed to. Respon-
dent promised to pay them the bonus at such time that Respon-
dent determined to release them, by seniority, based on its
operational needs and transition schedule. The drivers were not
to remain until the Franklin facility was completed. Respondent
always contemplated that not all drivers would be laid off on
the same day, but their layoffs would be staggered as their ser-
vices were no longer needed. Thus, drivers would receive the
bonus if they continued working for Respondent until Respon-
dent laid them off.
Although Thurman conceded that Respondent would not
have withheld the bonus because of the 1-day strike, anymore
than if an employee had become sick for 1 day or taken a vaca-
tion, that in fact was what Respondent did. It was Respondent’s
unlawful discharge of them that determined that they had been
released, and the bonus then became due. It was not paid solely
because of the employees’ Section 7 activities. Respondent’s
action was directly related to the strike. Respondent's notice to
the Union stated that the “changes to our operation” resulting in
the layoffs were “due to recent events.” These “events” could
be only the strike, except for Thurman’s other contention, if not
totally false, then partially so, that Respondent determined,
because of its fear of more “quickie” strikes, to start production
at the Franklin facility. That event, too, would result in Re-
spondent no longer needing the 13 drivers and, under Thur-
man’s alternate theory, they were no longer needed and were
released. In such event, the bonus was due.
Because Respondent’s conduct was “inherently destructive”
of important employee rights, the right to engage in an eco-
nomic strike, its conduct violated Section 8(a)(3) and (1) of the
Act. NLRB v. Great Dane Trailers, 388 U.S. at 34; see Texaco,
285 NLRB 241, 245 (1987). In addition, Respondent violated
Section 8(a)(5) of the Act because it reneged on its obligation
to provide bonuses to employees upon their release by Respon-
dent. It thus unilaterally changed the terms and conditions of
employment without bargaining with the Union. NLRB v. Katz,
369 U.S. 736 (1962); Litton Financial Printing Division v.
NLRB, 501 U.S. 190, 198 (1991); Daily News of Los Angeles,
315 NLRB 1236 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996),
DAYTON NEWSPAPERS 667
cert. denied 519 U.S. 1090 (1997). Respondent’s contention
that it bargained with the Union is errant nonsense. It merely
denied the existence of this liability, Thurman saying on July
19 that Respondent would pay it if forced to in a legal action.
The final allegation of the complaint relates to the employ-
ees—specifically Acton, Edgar Davenport, Dorsten, Martin
Pulley, Thomson, Edward Wilke, Michael Howard, Marshall,
and Hehemann—who were placed on unpaid leave. From the
time that Respondent initially refused to reinstate them, as well
as the others who returned to work after giving Respondent the
assurances that it sought, the Union proceeded with additional
unfair labor practice charges, one of which (Case 9–CA–36894)
charged that Respondent “unlawfully locked out or unlawfully
conditioned striking employees return to work on their assur-
ance that they would not engage in additional strikes prior to
the transition to the new facility, in violation of Section 8(a)(3)
of the Act.” On December 27, the Acting Regional Director
dismissed that charge, finding that the Union would not agree
to refrain from additional strike activity and that

The Employer has established that it possessed a legitimate
and substantial business justification for the lockout and for
placing restrictions on the reinstatement of the economic
strikers. Bali Blinds Midwest, 292 NLRB 243 (1988); General
Portland, Inc., 283 NLRB 826 (1987).

Additionally, the Acting Regional Director also found that
Respondent did not unilaterally change the working conditions
of the employees who held guaranteed jobs for life. Because
they were placed on unpaid leave, they continued to retain their
employee status and might return to work upon giving Respon-
dent reasonable assurances “that they will not engage in future
‘quickie’ strikes.” That was not deemed to be a violation of
Section 8(a)(5), because it was a legitimate restriction on their
holding their job. This decision was upheld on appeal on April
14, 2000.
As a result of the Acting Regional Director’s dismissal,
which the Union became aware of a number of days before,
perhaps as early as mid-December, Doll, on December 23, on
behalf of the Union and the individual drivers who had been
locked out and had not yet been permitted to return to work,
made

an unconditional offer to return to work on the same terms
and conditions and with the same guarantees and promises as
those drivers the Company has permitted to return to work
since July 1, 1999. To ensure that there is no misunderstand-
ing about this unconditional offer, Local 957 and the indi-
viduals drivers locked out by [Respondent] and have not re-
turned to work agree to return to work with the assurances
that there would be no work stoppages, strikes or other slow-
downs for the same period of time agreed to by the locked out
drivers that the Company has allowed to return to work, and
providing the same notification agreed to by those same
locked out drivers that the Company allowed to return to
work.

On December 27, Thurman replied in a lengthy letter that
there had been a number of changed circumstances in the recent
months that might impact Respondent’s position regarding a
return of the locked-out employees, among which,

just a few of the more important changes:
• We are now near completion of the
transition to the new plant
• Various union and employee unfair la-
bor practices
• Various union and employee criminal
acts
• The position taken in state court fil-
ings that the union has no control over,
and no responsibility over the actions
of, the employees in question
• Hiring of replacement workers who
are already trained to work in the new
operation
• Changes in relative bargaining
strength as a result of the failed strike
• Continued operational changes tied to
the new plant

Thurman objected to the fact that the Union’s unconditional
offer was no different from the earlier June 27 offer, made be-
fore the lockout, and “We certainly would need to meet and
discuss what is different about this ‘unconditional’ offer before
we could act on it.” Thurman asked, as an example, what the
Union’s position was regarding “all the operational changes
tied to the new plant,” conditions explained at the August 9
bargaining session that stand “separate and apart from the ‘rea-
sonable work assurances’ issue.” He complained that Doll’s
letter said nothing about whether the Union was offering “rea-
sonable work assurances (such as reasonable advance notice, or
assurances that unprotected/intermittent work stoppages are not
being threatened).” He complained that the Union did not “of-
fer anything at all as ‘collateral’ (or a meaningful remedy)
should the promises made in your offer not be kept—obviously
neither side at this juncture is willing to take very much on
faith.”
Thurman had more problems with the Union’s offer: (1) that
it came before the holidays and in the midst of Respondent’s
attempt to solve problems with Y2K adjustments, and Respon-
dent’s representatives involved in decision-making were not
available at a moment’s notice at that time of year; (2) that the
employees for whom the Union had made the offer had not had
the proper training for the new operation, and at that time of
year it was very difficult to set up training programs so that
they could provide services of any value; and (3) and that “we
are operating in a unique fact and legal situation” that makes it
unreasonable for Respondent to give an “instantaneous re-
sponse.”
Doll responded on December 28 that the changed circum-
stances were irrelevant to the offer to return to work. He com-
plained that:

The Company is still utilizing drivers to deliver its papers,
these drivers who have not been allowed to return to work
have the skills and abilities to perform that work and, up to
your December 27, 1999 letter, were under the impression
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
that all they needed to do was make the same assurances as
the drivers who have already been allowed to return to work.

Doll denied that there had been any criminal charges filed
against the Union. He insisted that there had been only one
criminal charge against one individual for one specific act. He
stated that only one unfair labor practice charge had been filed
against the Union since July 1 and none against an employee.
Doll added that the unconditional offer had been made on be-
half of the Union, that the operational changes at the new plant
had nothing to do with the offer to return to work, that the Un-
ion would provide the same remedy as Respondent had re-
quired from the drivers who had been permitted to return to
work, and that the drivers on whose behalf the offer had been
made were “long-term, capable and efficient employees . . . and
should have no trouble performing whatever assignments they
receive.”
Thurman wrote Doll on January 7, 2000, that he thought that
exchanging additional letters was not going to get the parties
anywhere and that they should meet later in the month to dis-
cuss the logistics involved in returning the guaranteed job hold-
ers to work. Doll objected on January 19 that there was no rea-
son that the drivers should not be permitted to return to work
immediately, but gave Thurman various dates, and the parties
met on February 4. At that time, Respondent, distributing an
internal memorandum to the Union, took the position that noth-
ing in the Union’s recent correspondence reasonably permitted
or required the reemployment of the six guaranteed jobholders,
as well as others, who by then had not yet been offered a return
to work. Joseph and Richmond were afraid that the Union
“might be lying” or “might just be wrong [by] making promises
it cannot keep” or that the Union was objecting to any of the
changes necessitated by the new plant transition. But Respon-
dent was unsure of the validity of its legal position and wanted
to find out from the Union:

1. How do we know that the union is telling the truth? Nei-
ther side, understandably, is taking much on faith from
each other.
2. Some of the GJ [guaranteed job] holders in question
point blank told Mike Joseph in person something very
different than what the union is now representing on
their behalf. Who should we believe, and why? If you
are saying they have changed their minds, on what do
you base that claim? What made them change their
minds, and why should we trust them? What if they are
lying?
3. The union signed an agreed court entry promising, in
writing to a judge, that certain things would not be done
by unit workers. Then when the promises were broken
the union took the position that it has no control over, or
responsibility for, the actions of the unit members it
made promises about. The union also denied the prom-
ises were broken, even when there was undisputed tes-
timony from several people (including a police officer)
that the promise was broken—there is such a thing as a
bad faith argument, this is one of them, and it directly af-
fects our willingness to “take you at your word” on this
matter. If the GJ holders break the promises the union is
making, how do we know the union will not disclaim re-
sponsibility and control again, or drag things out by de-
nying things no one is even disputing?
4. How can the union promise there will not be a wildcat
strike from a worker? Isn’t that something that only a
worker can promise? There is a trust issue directly with
them, also, based on what they have done and already
told Mike. How do we get that information on a reliable
basis, without breaking the law. What happens if that
promise is broken? What if the union were to secretly
“authorize” (or instigate through a trusted lieutenant) a
wildcat, surprise quickie strike?
5. Could we terminate a GJ person who breaks the prom-
ises being talked about? What about if the action were
otherwise protected activity under the Act, even though
it is a breach of the promise? If we can, then was the GJ
negated by the quickie strike? If not, then what can we
do if we “are fooled twice?”
6. By returning to work, is the union agreeing not to chal-
lenge (for any reason?) the changes necessitated by the
transition to the new plant? Will it withdraw its appeal of
the Reg. Director’s ruling on this issue?
7. Will the union consider posting a bond? What about
some type of security (or meaningful remedy) from the
individual GJ holders in question? If not, what is our
remedy if once again, the union makes promises and the
promises are later broken? Will you pay our legal fees
for bad faith or frivolous defenses and arguments in any
remedy proceedings?
8. Can we just make return to work, backpay, and other
remedies part of the contract negotiations? That way
when they return there will be a contractual no-strike
agreement, and we are very comfortable with our reme-
dies under federal law with such a contract. If you con-
tend they cannot be combined, why not?
9. If there are some GJ drivers Mike/Stan trust and some
they don’t, AND the law does not permit this “trust
based” differentiation, does the union agree we could
just lock out all GJ who actually drive until a new con-
tract is signed? If not, why not (where did the right to
lockout [sic] go?) Also if not, see no. 5—you mean they
can strike, but we can’t lock out?
10. Our new offer might have mandatory buy-outs of GJs.
What is the union’s position on whether that is a manda-
tory or permissive subject, and why? If it is mandatory,
and we agree to (or implement after impasse) a buy-out
with an extra allocation that covers their economic loss
during their time off, is the whole thing potentially
moot?
11. What about the current lawsuit? If we reinstate with
backpay (as per the backpay paragraph above), does the
lawsuit go away, or will the union still pursue other
remedies in court (backpay since 6-7-99, for example?)
We hope you understand that a partial settlement of the
court claims has little value to us, as is typically the case
when settlement is based largely on “nuisance value.”
[Emphasis in original.]

DAYTON NEWSPAPERS 669
Doll received this document. He did not answer the questions at the
meeting, which broke shortly after Thurman’s presentation. Al-
though Thurman testified that Doll promised to answer this memo-
randum and never did, Burns’ notes reveal that Doll said only that
he would send Thurman “a written response to the extent neces-
sary” and insisted that Respondent reinstate the drivers as soon as
possible, and Thurman replied that he wanted the Union’s “take on
these things.”
The complaint alleges that Respondent failed, in response to
Doll’s December 23 letter, to reinstate immediately the remain-
der of the 18 employees placed on unpaid leave. The complaint
thus assumes, as I will, that the initial failure to reinstate the
same employees in July did not violate the Act, notwithstand-
ing Respondent’s unlawful discharge of 13 of its drivers and its
other unfair labor practices found in this Decision, and that, at
least as of December 23, there was a lawful lockout in effect.
Indeed, the General Counsel concedes that Respondent, due to
the nature of its business, was permitted to lock out its drivers
to achieve some assurance of the foregoing of future strikes and
would have been privileged to condition the return to work of
those individuals who were placed on unpaid leave on some
limitation of the Union's ability to strike, be it until the com-
pleted transition to the Franklin facility or until the Union ac-
cepted its contract proposal. Accordingly, I will not consider
the Union’s contention that Respondent violated Section 8(a)(5)
and (1) of the Act by placing the 13 guaranteed jobholders on
“unpaid leave.” That was not alleged in the complaint.
As found above, Respondent reinstated more than half of the
drivers whom it placed on unpaid leave as a result of Joseph’s
unlawful one-on-one conversations in July, in which the em-
ployees conditioned their return to work on the commitment
that they would continue to work without strikes and without
honoring picket lines. It is that very commitment that Doll
made in his December 23 letter; but, while Respondent will-
ingly accepted the word of the individual drivers in July, it
declined Doll’s offer made 6 months later on behalf of the ex-
clusive collective-bargaining representative of the drivers. I
conclude that Respondent’s failure to reinstate these economic
strikers on their unconditional offer to return to work is inher-
ently destructive of employee rights under Laidlaw.
Laidlaw instructs that an employer can only justify its failure
to reinstate economic strikers “for legitimate and substantial
business reasons.” 171 NLRB at 1370. Respondent defends on
the ground that the Union’s word could not be trusted for a
variety of reasons, among which are that a member, Robert
Michigan, was convicted of carrying a concealed weapon, 2
days after the Union had agreed to an injunction against threat-
ening violence on the picket line; that Burns testified that he
had no control over a member’s behavior at a picket line or
even whether a member goes to a picket line; and that Burns
had reneged on his agreement to let the membership vote on
one of Respondent’s contract proposals. Yet another of Thur-
man’s doubts concerned the timing of Doll’s offer of reinstate-
ment, only after receiving notice of the dismissal of his unfair
labor practice charge. I do not understand that doubt at all. Doll
realized that the lockout was lawful and was trying to get the
locked-out drivers reinstated.
Assuming, for the sake of argument, that Respondent had
good reason to doubt Doll’s commitment, Respondent never
stated what conditions would satisfy it for the economic strikers
to be reinstated. The principle of every decision of the Board
dealing with a lockout is that it is a temporary withholding of
employment opportunities in order for an employer to get
something in return, for example, a contract, Harter Equipment,
Inc., 280 NLRB 597 (1986), enfd. sub nom. Operating Engi-
neers Local 825 v. NLRB, 829 F.2d 458 (9th Cir. 1987); Cen-
tral Illinois Public Service Co., 326 NLRB 928 (1998), petition
to review denied sub nom. Electrical Workers Local 702 v.
NLRB, 215 F.3d 11 (D.C. Cir. 2000); or a commitment not to
strike, Bali Blinds Midwest, supra. Respondent’s presentation
on February 4, quoted at length above, demonstrates that it had
not the slightest idea of what it wanted from the Union. Al-
though it may have been instructive for the parties to discuss ad
nauseum the many questions asked and problems raised by
Thurman, the Union had no obligation to participate in his mus-
ings and ramblings. Rather, Respondent was obliged to an-
nounce to the Union in a timely manner that it was locking out
the employees and the purpose of the lockout so that the Union
could evaluate its position “and decide whether to accept the
employer's terms and end the strike or to take other appropriate
action.” Eads Transfer, 304 NLRB 711, 712 (1991). Without
that input, the Union is helpless in obtaining the reinstatement
to which the employees are entitled. See generally I.T.T.
Rayonier, Inc., 305 NLRB 445, 446 fn. 6 (1991). At that point,
the lockout is no longer justifiable. It is instead a discharge,
from which the workers lose their jobs, merely for engaging in
a lawful protected and concerted activity.
In addition, Respondent’s fears in February were not legiti-
mate. By then, according to Respondent’s brief, “more than
half of the unit did in fact manage to climb over the ‘work as-
surance’ hurdle and return to work.” Even had Respondent
reinstated those who were denied their jobs, the Union had
effective control over less than half of the drivers, hardly
enough to instigate an effective job action. All this assumes that
Respondent’s distrust of the Union was accurate. I do not find
enough in this record. The only arguably valid point is the fail-
ure of Burns to present Joseph’s proposal to the membership
for a vote. That was not what he agreed to. But merely because
he broke his word on that occasion, with the legitimate excuse
that the proposal would not have been approved by the mem-
bership in any event, does not mean that he will forever break
his word, particularly when there is no other evidence that the
Union ever violated its no-strike commitment under past collec-
tive-bargaining agreements for 40 years. Even the 1-day strike
in June 1999 breached no agreement. Although there was tes-
timony that Respondent offered to extend the agreement for
either 30 days or from month-to-month, and Burns declined the
offer by saying the contract would continue from day-to-day,
there was no testimony that Respondent agreed to that; and
Respondent does not contend that the Union’s one-day strike
violated any contractual provision. Otherwise, Burns never
committed to an extension of the old agreement, and he never
committed to giving Respondent notice before calling a strike.
Respondent knew that a strike was possible. It was told that a
strike vote had been taken and had prepared contingency plans
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
a half-year before the strike actually happened. Respondent was
willing to accept the word of its drivers. I find no legitimate
reason that it should not have accepted the word of its drivers’
representative.
Respondent also contends that the Union failed, as a condi-
tion to the reinstatement, to accept the changes that it made as a
result of the transition. Respondent asked for that as early as
July 19 and August 9, 1999; and, although the Union was in no
mood to make any offer to return at that time, relying instead
on its claim that the lockout was illegal, the Union did not make
it part of its reinstatement offer in December, either. I reject
Respondent’s contention for a variety of reasons. In doing so, I
do not find that its change of its transition schedule was unlaw-
ful or unreasonable, due to the threat of further strikes. Nor do I
find unlawful if Respondent had to change its methods of de-
livery as a result of the new schedule. What is problematic is
that the demand that it made on the Union was not a demand
that it made on the employees whom it reinstated. They, too,
had the right to file unfair labor practice charges with the
Board. In addition, Respondent has not made clear what the
issue was when the Union made its offer to return in December.
By that time, the dispute about the operational changes made by
Respondent as a result of its transition to the Franklin facility
had been resolved by the Regional Office, which refused to
issue a complaint. Because there was no agreement in effect,
there was no arbitration machinery.5 The only matter that
Thurman was talking about in his February 4 letter was the
withdrawal of the Union’s appeal from the Acting Regional
Director’s decision. But that demand conceivably meant that
Respondent was asking the Union to condone Respondent’s
unfair labor practice of making unilateral changes, if the appeal
were sustained; and Respondent has cited no legal authority
that that is a legitimate and substantial business reason for and
precondition to the reinstatement of the locked out employees.
Respondent can operate, no matter whether the appeal is pend-
ing. It might be pleasant or convenient for Respondent to fi-
nally dispose of the unfair labor practice issue, but surely not
necessary to its continued operation and certainly not substan-
tial enough to justify Respondent’s refusal to reinstate eco-
nomic strikers. I reject this defense and find that Respondent
violated Section 8(a)(3) and (1) of the Act.
Just as the General Counsel contended that a Wright Line
analysis required a finding of a Section 8(a)(3) violation regard-
ing the laid-off drivers, so too does he contend that Respondent
violated the Act regarding the drivers placed on unpaid leave.
Those drivers who made the same promises as the Union did on
December 27, were permitted to get their jobs back. But, when
the Union made those same promises on behalf of the remain-
ing drivers, Respondent refused to reinstate them. I agree with
the General Counsel’s contention that there is no lawful reason
for this distinction. Rather, Respondent’s animus was clear.
While reinstating those who accepted Respondent’s offer, made
in unlawful one-on-one sessions, it declined to reinstate those
who refused Respondent’s original offer or refused to partici-

5 I summarily reject Respondent’s repeated contention, unsupported
by any legal authority, that the alleged unfair labor practices should not
be found because the Union failed to grieve about them.
pate in those unlawful sessions and who continued their alle-
giance to the Union, solely because of their union activity in
exercising their Section 7 right to allow the Union to speak for
them with respect to any waiver of their right to strike. Respon-
dent’s intended to undermine the Union and to punish the em-
ployees for retaining their allegiance to the Union. Respon-
dent’s refusal to reinstate the drivers discouraged their union
activity and undermined their support of the Union. The Gen-
eral Counsel established a prima facie case under Wright Line.
Respondent has not proved that, but for the protected and union
activities of the remaining employees on unpaid leave, it would
still not have reinstated them, as explained above. I conclude
that, for these additional reasons, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the Re-
spondent discriminatorily laid off and thereafter failed to recall
employees James Lawson, Jack Truxel, Steve Watkins, Terry
Glueckert, Larry Siscoe, Gary Walter, Jerry Smith, Robert
Spreny, Kenneth Gordon, Robert Mays, Johnny Fleming,
Robert Michigan,6 and Thomas Dineen, it shall be required to
offer them immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substantially
equivalent positions for which they are qualified, without
prejudice to their seniority and other rights and privileges, dis-
charging if necessary all replacements hired after June 27,
1999, so long as positions exist which have not been filled by
the discriminatees named in the following paragraph. In the
event that, following the discharge of replacement employees
and the reinstatement of the employees in the following para-
graph, there are not enough remaining positions available for
these employees, they shall retain their recall rights as they
existed on June 27, 1999.
Respondent shall also be required to make them whole for
any loss of earnings and other benefits they may have suffered
by reason of the discrimination against them, from June 27,
1999, until their reinstatement, unless it is determined at the
compliance stage that any such employee would have been
displaced by an employee named in the following paragraph
had those employees been returned to work on December 27,
1999. At that point the backpay computation shall cease, sub-
ject to whatever recall rights the employees may have. Back-
pay shall be computed on a quarterly basis from June 27, 1999,
to the date of a proper offer of reinstatement, less any net in-
terim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). In addition, having
found that Respondent unlawfully failed to pay to these 13
employees who were not permitted to return to work on June
27, 1999, and were laid off on July 1, 1999, the $10,000 bonus
6 In ordering the reinstatement of Michigan, I note that his convic-
tion occurred on August 11, 1998, long after the layoff, and that Re-
spondent has made no claim that, by reason of his conviction, he ought
not be reinstated.
DAYTON NEWSPAPERS 671
provided for as part of a stay-to-the-end package, Respondent
shall make them whole for all benefits they were owed under
the package, with interest as provided above.
Having found that Respondent unlawfully refused to rein-
state Brain Acton, Edgar Davenport, Dale Dorsten, Martin Pul-
ley, Peter Thomson, Edward Wilke, Michael Howard, Kenneth
Marshall, and Timothy Hehemann following the Union’s offer
to return to work made on their behalf on December 23, 1999,
it shall be required to reinstate them immediately to their for-
mer positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
and other rights and privileges, discharging if necessary all
replacements hired after June 27, 1999, including any laid-off
employee hired as a strike replacement. Respondent shall also
be required to make these employees whole for any loss of
earnings and other benefits they may have suffered by reason of
the refusal to reinstate them, from December 27, 1999 until the
date of their reinstatement. Backpay and interest shall be com-
puted, as set forth above. TNS, Inc., 329 NLRB 602, 611 fn. 40
(1999).
[Recommended Order omitted from publication.]