Drew Division of Ashland Chemical Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 477 (N.L.R.B. 2001)

DREW DIVISION OF ASHLAND CHEMICAL CO. 477
Drew Division of Ashland Chemical Company, a divi-
sion of Ashland Oil, Inc. and Teamsters Industrial
and Allied Workers Local No. 97, International
Brotherhood of Teamsters, AFL–CIO. Case 22–
CA–21748
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN, TRUESDALE, AND WALSH
On August 12, 1999, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent filed
exceptions and a supporting brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and brief
and has decided to affirm the judge’s rulings, findings,1 and
conclusions2 and to adopt his recommended Order as modi-
fied.3
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Drew Division of
Ashland Chemical Company, A Division of Ashland Oil,
Inc., Kearny, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.

Substitute the following for paragraph 2(b).

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 In adopting the judge’s conclusion that the Respondent violated
Secs. 8(a)(5) and (1) and 8(d) by locking out its employees within 60
days from the Union’s notification of its intent to terminate their con-
tract’s (8(d)(1) notice), the judge relied on Carpenters Dist. Council of
Denver, 172 NLRB 793 (1968), in which a union was found in viola-
tion of Sec. 8(d)(4) for striking within 60 days of the employer’s
8(d)(1) notice. Chairman Hurtgen and Member Truesdale disagree
with Carpenters. Rather, they find the analysis of 8(d)(3) notice obli-
gations set forth in United Artists Communications, 274 NLRB 75
(1985), which followed the Seventh Circuit Court of Appeals’ decision
in Hooker Chemical & Plastics Corp. v. NLRB, 573 F.2d 965 (1978), to
be more persuasive authority. See also NLRB v. Painting Contractors,
(Peoria Painting), 500 F.2d 54 (7th Cir. 1974), denying enf. 204 NLRB
345 (1973). Further, they would apply the reasoning therein to 8(d)(1)
cases as well as 8(d)(3) cases, inasmuch as both notice provisions are
integral parts of the same statutory scheme. Accordingly, they would
overrule Carpenters. Nonetheless, in the absence of a majority to over-
rule Carpenters, Chairman Hurtgen and Member Truesdale concur in
the adoption of the judge’s decision in this case.
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
“(b) 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 designated by
the Board or its agents, all payroll records, timecards, per-
sonnel records 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 un-
der the terms of this Order.”

Lisa Pollack, Esq., for the General Counsel.
David Kadela, Esq. (Schottenstein, Zox & Dunn), Columbus, Ohio,
for the Respondent.
David Grossman, Esq. (Schneider, Goldberger, Cohen, Finn,
Solomon, Leder & Montalbano), Kenilworth, New Jersey, for
the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on December 16, 1996, by Teamsters Industrial and
Allied Workers Local No. 97, International Brotherhood of Team-
sters, AFL–CIO (Union), a complaint was issued against Drew
Division of Ashland Chemical Company, a Division of Ashland
Oil, Inc. (Respondent) on October 30, 1998.
The complaint alleges essentially that Respondent unlawfully
locked out employees in an effort to modify a collective-bargaining
agreement that was due to expire, and that Respondent engaged in
such conduct less than 60 days from the time it received the Un-
ion’s notification that it wished to terminate the collective-
bargaining agreement. It is alleged that Respondent’s conduct vio-
lated Sections 8(a)(5) and (1) and 8(d) of the Act.
Respondent’s answer denied the material allegations of the
complaint, and on April 6, 1999, a hearing was held before me in
Newark, New Jersey.
On the evidence presented in this proceeding, and my observa-
tion of the demeanor of the witnesses and after consideration of the
briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation having its office and place in Kearny,
New Jersey, has been engaged in the manufacture and sale of
chemicals and related products. Annually, Respondent sold and
shipped from its Kearny, New Jersey facility goods valued in ex-
cess of $50,000 directly to points outside New Jersey. I find that
the Respondent is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Respondent admits, and I
also find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
THE FACTS
1. The Union’s notification of termination of the contract
The Union represents Respondent’s approximately 50 full-time
and regular part-time production and maintenance employees and
warehouse employees at the Kearny facility. The collective-
336 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
bargaining agreement at issue here ran from December 15, 1993
through December 14, 1996.1 It provides in relevant part:

In the absence of written notice given at least 60 days prior to
the expiration date by either party to the other of intention to
terminate, this Agreement shall automatically be renewed for
a period of another year.

The procedure to be followed in the event such notice of ter-
mination shall be given is the procedure set forth in the Labor
Management Relations Act of 1947, as amended.

If, following receipt of such notice, such negotiations have not
been concluded within the 60 day period, this Agreement may
be extended for an additional period of 30 days from its ter-
mination date, upon 15 days’ notice in writing by either party
to the other.

On October 28, the Union sent a letter to Respondent, which
stated that in accordance with the contract, “notice is hereby given
you for the purpose of terminating the old agreement and entering
into negotiations for a new one.” The Union also sent a notice that
day to the Federal Mediation and Conciliation Service. Respondent
received the notices the following day, on October 29.
Pursuant to the terms of the contract, which required 60 days no-
tice prior to the December 14 expiration, the notice sent by the
Union was not timely.
Kurt Reidinger, Respondent’s human resources manager, was
surprised that he did not receive timely notice of termination, and
would have preferred that the contract be automatically renewed
for 1 year as provided in the contract if timely notice had not been
served.
However, the Union, which had arbitrations pending, agreed to
settle or withdraw those grievances and to withdraw an unfair labor
practice charge, and in exchange Respondent agreed not to insist
that the notice was not timely received. Accordingly, by November
13, both parties agreed that negotiations for a successor agreement
should be undertaken. On that date, the Respondent sent a letter to
the Union acknowledging that it was “entering into negotiations.”
2. The negotiations
The first negotiation session was on November 21, at which
time the Union said that it was not yet ready to exchange proposals
inasmuch as Bill Hill, the Union’s business agent, had not reviewed
the Union’s proposal.
On November 26, the parties met and exchanged their proposals.
Further negotiations were held on December 3, 5, 11, and 13.
3. The events of December 13
The final bargaining session took place on December 13. It be-
gan at about 9 a.m. and ended between 9:30 and 10 p.m.
Respondent’s official, Reidinger, testified that he did not believe
that much progress had been made at that session toward reaching
agreement on a successor contract. The major issue was the amount
of money to be contributed to the pension fund. Reidinger stated
that union official Roy McClam asked for Respondent’s last and
final offer, adding that the parties were at impasse.
Respondent presented its final offer, and asked McClam if the
Union’s negotiating committee would recommend that it be ratified

1 All dates are in 1996 unless otherwise stated.
by its members. McClam replied that the committee would not
recommend it for ratification when the members voted on Monday
morning. McClam asked that the voting take place at the plant, and
Reidinger refused. Reidinger did not recall any union official re-
questing that day that the contract term be extended.2
Reidinger stated that he expected negotiations to continue, and
believed that McClam would agree to negotiate the following day,
Saturday, after the presentation of Respondent’s final offer, noting
that he was “shocked” when McClam “refused to continue to nego-
tiate.”
Prior to December 13, Respondent had begun to make prepara-
tions for either a lockout or a strike by making arrangements with
its corporate security office to “secure” the site in the event of ei-
ther occurrence.
Reidinger stated that on the evening of December 13, he made
the decision to lock out the employees because he “fully antici-
pated a strike” when the vote on the final contract was taken, and
also because the Union had refused to continue to negotiate and
refused to recommend the Respondent’s final offer. Reidinger also
stated that other reasons for the decision to lock out the employees
included union negotiator Doyce (Gene) Stephenson’s notice to the
employees to clear out their lockers, an unusual chemical spill
which had occurred that day, and the alleged slow down of work.3
In fact, Reidinger believed, even before negotiations began in No-
vember, that the Union intended to strike because of its “confronta-
tional approach.” Union negotiator Stephenson testified that there
was no slow down, no sabotage of equipment or products, and no
discussion of these matters among union representatives.
In fact, union negotiator Stephenson testified that a strike was a
“possibility” and that the Union made certain preparations toward
that end—including notifying its members to remove personal
items from their lockers.
Reidinger further stated that because of the volatile and hazard-
ous nature of the chemicals Respondent produces, and the way it
produces them, in batches, a strike in the middle of the production
process would be dangerous to employees and would cause dam-
age to the product. That factor, too, played a part in Respondent’s
decision to lock out the employees. Thus, it was a major concern to
Respondent as to how to stop the production process in the event of
a strike. John Orlowski, Respondent’s plant manager who partici-
pated in negotiations, stated that he had concerns about employees
not completing certain tasks, and leaving chemical lines full,
thereby creating waste and hazardous conditions in the plant. He
believed that negotiations were not progressing well.
Another factor in the decision to lock out employees was
McClam’s request that the ratification vote take place at the plant
on Monday morning, following the expiration of the contract.
Reidinger stated that based on his expectation that the proposed
contract would be rejected and a vote taken to strike, he did not
believe that it was appropriate to have striking employees in the
plant. In that regard, he bore in mind that the booklet The New Blue
2 Reidinger stated that during the negotiations, Joe Patalero, the Un-
ion’s chief trustee requested that the contract be extended. That was not
at the December 13 meeting, however.
3 Although the spill could not be attributed to the Union, Reidinger
was informed that similar incidents occurred at the end of prior negotia-
tions.
DREW DIVISION OF ASHLAND CHEMICAL CO. 479
Collar Movement authored by Stephenson, called for “civil direct
action” and the physical interference with an employer’s ability to
produce and deliver its product.
The main body of employees finished work at 11 p.m. on Fri-
day, December 13 that evening, and left work at that time. About
two or four employees who were scheduled to work until 11:30
p.m. that night were permitted to leave one-half hour early.4 Ac-
cordingly, no unit employees remained in the plant after 11 p.m.
that night, and none were scheduled to arrive at work for a third
shift which begins at 11:30 p.m.
Reidinger stated that at the conclusion of the bargaining session,
Respondent ordered that the plant gates be locked and no one al-
lowed in.
Union negotiator Stephenson stated that at the end of the nego-
tiation session, he believed that the parties were still making
movement toward a new contract. He conceded that Respondent
presented a final offer that evening, which the Union would not
recommend for ratification. He further said that the Union was
“pushing” to negotiate the following day. The Union wanted to
vote on Respondent’s offer on Monday morning.
Stephenson further stated that after Respondent presented its fi-
nal offer, the Union requested a bargaining session the following
day. Respondent was supposed to inform the Union whether that
was acceptable, but never did so. He further stated that the Union
was not planning a strike for Monday, and had asked to continue
negotiations on December 14, so that union members could vote on
the proposal on Monday. Respondent said that it would inform the
Union whether it agreed.
Respondent’s official Orlowski testified that the Union asked
that negotiations continue while they worked. This request was
refused because Orlowski feared that a sudden strike called while
the plant was in production would leave the product at risk since
vessels and lines would be filled with chemicals, and materials may
be left unpackaged.
4. Were employees scheduled to work on the weekend of
December 14
There is a dispute concerning the date the lockout began. Gen-
eral Counsel states that it began shortly before midnight on De-
cember 13. Respondent asserts that the lockout began one day later,
at 12:01 a.m. on December 15.
There was extensive testimony concerning whether employees
were scheduled to work on Friday night, December 13, or that
weekend. General Counsel asserts that employees were scheduled
to work that weekend and that but for the illegal walkout, they
would have worked.
Employee Sam Vinson testified that during the winter, the boil-
ers operate all the time, but on a warm day, one boiler may be
turned off. He stated that in the morning of December 14, he no-
ticed a truck from an outside boiler company.
Vinson stated that the Respondent’s boiler operators are regu-
larly scheduled to work on weekends in the winter.

4 Reidinger stated that the employees were permitted to leave work
early because of a (a) practice in past negotiations, (b) concern over a
spill of chemicals in the plant that night, (c) belief that employees were
“slowing down”, and (d) concern regarding the Union’s confrontational
approach toward negotiations.
Vinson stated that other employees are also regularly scheduled
to work on weekends during the winter including two drivers, Oria
Lopez and Joe Simeon. He further stated that if the drivers refuse a
weekend assignment, warehouse drivers are offered that overtime
work which consists of warehouse duties such as picking orders
and loading trucks. The actual driving work is contracted out to an
outside carrier which makes marine deliveries.
In this connection, Vinson stated that the work that Lopez or
Simeon would have been assigned, if they worked on December
14, would have been standby work. He stated that employees who
were scheduled for weekend work were on standby, were on call,
and were paid for 5 hours while on call. Vinson testified that Lopez
told him that he was scheduled to work that weekend and was told
by Respondent not to report to work.
Reidinger credibly testified, supported by the collective-
bargaining agreement, and by the testimony of employee Vinson,
that no third shift, which begins work at 11:30 p.m. was scheduled
to report to work in the evening of Friday, December 13. Reidinger
also testified that no employees were scheduled to work that week-
end.
No production takes place at Respondent on the weekends. The
boilers are needed during production which takes place Monday
through Friday, and on weekends when the weather is cold. On
weekends when the weather is warm, the boilers are shut down,
and the boiler operators are told not to report.
Respondent official Orlowski credibly testified, supported by
boiler room logs, that the boilers were not in operation on the
weekend of December 14, because of the warm weather. He stated
that ordinarily, during the weekend in the winter the boilers are
operational, however when the weather is warm they are shut on
weekends. On the weekend of December 14, the weather was
warm, and therefore the boiler room operators were not required to
be at work, and were not scheduled. They were informed on
Wednesday, based on the weather forecast for the weekend, that
they would not be needed. Instead, Respondent contracted with an
outside company to provide boiler room operators, as needed, dur-
ing the time of the lockout. They were not needed, and were not
present during the weekend of December 14 and 15.
Documentary evidence supports a finding that a boiler repair
company, Miller and Chiddy, did some repair work to the boiler on
Sunday, December 15, and that Omne Maintenance performed
certain work regarding the boilers during the period ending De-
cember 20. Orlowski was not certain whether any work was done
on December 13. However, he stated that Omne employees were
on site prior to December 13, to be trained in the operation of the
boilers.
With respect to standby drivers, Orlowski stated that Respon-
dent’s practice under the contract was that such drivers were paid
to be on call at their homes. They were paid 5 hours standby pay.
Orlowski stated that Respondent was not required to assign em-
ployees to standby work. He further stated that no one was sched-
uled for standby work for the weekend of December 14, because
Respondent was not certain whether a new agreement would be
reached.
I cannot credit Vinson’s hearsay testimony concerning who was
scheduled to work on the weekend of December 14.
I accordingly find, in agreement with Respondent, that no em-
ployees were scheduled to report to work on the weekend of De-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
cember 14 and 15, and that employees were locked out of their
employment beginning with the first shift, 12:01 a.m. on Monday,
December 16.
On Sunday, December 15, Respondent called all employees and
told them not to report to work on Monday. The lockout continued
through December 23.
On December 23, following additional negotiations, a new final
offer was made by Respondent, which the employees voted to
accept. Respondent resumed its operations the next day.
B. Respondent’s Defenses
1. The lockout was a defensive action to the union’s strike
preparations
Reidinger testified that he believed that the Union was preparing
to strike regardless of the outcome of the negotiations. He stated
that the Union’s actions, set forth below, before and during the
negotiations led him to believe that a strike would take place on the
expiration of the contract.
There had been no strike incident to the 2 prior contract negotia-
tions.
2. The Union’s actions prior to the start of negotiations
(a) The Union was unusually confrontational prior to negotia-
tions, filing many grievances and seeking arbitration on them rather
than discussing them, (b) the Union had not sent a timely notice
terminating the contract, and (c) the Union’s distribution of the
booklet The New Blue Collar Movement. The booklet, distributed
weeks before negotiations began, states that it was written by Ste-
phenson, the Union’s chief shop steward. Its theme is that the union
movement’s influence and power are in decline, and sets forth
methods by which unions can regain their strength to organize and
bargain effectively. Some of the proposals include a “militant pos-
ture” consisting of nonviolent mass civil disobedience, direct ac-
tion, and the “physical interference with the ability of companies to
operate, produce and deliver goods.”
3. The Union’s actions during negotiations
(a) Union negotiators were “repeatedly” 60 to 90 minutes late
arriving at negotiations sessions, (b) the Union’s economic re-
quests, including a 300- to 400-percent increase in pension contri-
butions, (c) Stephenson’s direction to union members in the period
December 9 to 11, that they remove all personal items from their
lockers, (d) on December 11, Reidinger received a call from
Patalero, the Union’s head trustee, who requested that the negotia-
tions be postponed because the union negotiators would be busy
counting ballots in the upcoming Teamster election for Interna-
tional president, and (e) at the end of negotiations on December 13,
Union assistant trustee Roy McClam requested that the Respondent
give the Union a “last and final offer,” declared that the parties had
reached an “impasse,” and refused to meet the next day, Saturday,
December 14.
C. Analysis and Discussion
1. The alleged violation of Section 8(d) of the Act
The complaint alleges that Respondent engaged in an unlawful
lockout in an effort to modify the contract which was due to expire
in December 1996, and that it did so less than 60 days from the
time that the Union served its notice to terminate the contract in
violation of Section 8(a)(5) and 8(d) of the Act.
Section 8(d) of the Act provides in relevant part:

Provided, That where there is in effect a collective-bargaining
contract covering employees in an industry affecting com-
merce, the duty to bargain collectively shall also mean that no
party to such contract shall terminate or modify such contract,
unless the party desiring such termination or modification—
(1) serves a written notice upon the other party to the con-
tract of the proposed termination or modification sixty days
prior to the expiration thereof, or in the event such contract
contains no expiration date, sixty days prior to the time it is
proposed to make such termination or modification
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract containing
the proposed modifications
(3) notifies the Federal Mediation and Conciliation Ser-
vices within thirty days after such notice of the existence of a
dispute, and simultaneously therewith notifies any State or
Territorial agency established to mediate and conciliate dis-
putes within the State or Territory where the dispute occurred,
provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to
strike or lockout, all the terms and conditions of the existing
contract for a period of sixty days after such notice is given or
until the expiration date of such contract, whichever occurs
later.

The notification obligations set forth in Section 8(d) are on the
party, which proposes the termination or modification of the con-
tract. United Artists Communications, 274 NLRB 75, 77 (1995).
As set forth above, on October 28, the Union notified Respon-
dent of its desire to terminate the agreement. The Union was there-
fore the initiating party.
General Counsel concedes that the Union’s notice of termination
to Respondent was untimely since it was not given at least 60 days
prior to the December 14 expiration of the contract. General Coun-
sel argues, nevertheless, that notwithstanding the untimely notice,
Respondent was not entitled to lock out its employees until the
passage of 60 days following the Union’s October 28 notice.
General Counsel relies on United Marine Division Local 333,
228 NLRB 1107 (1977), and Retail Clerks (California Assn. of
Employers), 109 NLRB 754 (1954). Both cases involved situations
where the union, the initiating party, failed to give the required 30-
day notice to the mediation services pursuant to Section 8(d)(3) and
the union struck. In both cases, the Board found that the unions
violated their obligation to bargain and Section 8(d) of the Act.
There are several facts which distinguish this matter from the
above cases. First, in those cases the unions gave the required,
timely 60-day notice to the employers but never notified the media-
tion service of the dispute. Here, the Union gave notice to the Re-
spondent of its desire to terminate the contract, although such no-
tice was untimely. Its 30-day notice to the mediation service was
within the 60-day notification period pursuant to Section 8(d)(3).
Respondent relies on United Artists Communications, 274
NLRB 75 (1985), in support of its position that its lockout was not
unlawful. In that case, the initiating party union notified the em-
ployer of its desire to negotiate a new agreement but did not notify
mediation services. After negotiations, the expiration of the con-
tract, and following the 60 day 8(d) notice served by the union on
DREW DIVISION OF ASHLAND CHEMICAL CO. 481
the employer, the employer, the noninitiating party, implemented
its final proposal.
The Board, in overruling Peoria Painting Contractors, 204
NLRB 345 (1973), and Hooker Chemicals Corp., 224 NLRB 1535
(1976), held that the noninitiating party had no duty to notify me-
diation services in order to take otherwise lawful economic action.
274 NLRB at 77. Accordingly, the employer’s implementation of
changes in terms and conditions of employment following expira-
tion of the contract was not unlawful.
In deciding United Artists, the Board stated that it was persuaded
by the reasoning of the Seventh Circuit Court of Appeals in Hooker
Chem. & Plastics Corp. v. NLRB, 573 F.2nd 965, 969 (7th Cir.
1978), which reversed the Board’s Hooker decision. In Hooker, the
court stated that an employer was permitted to lock out its employ-
ees on the “expiration of a contract when the union untimely noti-
fies the mediation service” and that the limitations in strike activity
placed on the initiating party by its late filing of the 8(d)(3) notice
do not apply to a noninitiating party.
The court further stated that the fact that the initiating party is re-
strained from using its economic weapons because it gave untimely
notice while the noninitiating party would not be is regarded as an
“incentive [for the initiating party] to fulfill its statutory duty to
give timely notice; the initiating party need only perform its statu-
tory duty to avoid the restraint.” 573 F.2d at 970.
The above cases did not deal with the facts present herein. Those
cases dealt solely with the issue of notification to mediation ser-
vices. It is important to emphasize that in all the above cases the
required 60-day notice had been given by the initiating party. The
notice to the mediation services was timely here when considered
in relation to the 60-day notice served on the Respondent. How-
ever, it was the 60-day notice which was not timely.
It cannot be said that United Artists stands for the proposition
that a noninitiating party is entitled to take economic action follow-
ing expiration of the contract prior to the passage of 60 days fol-
lowing untimely notice to the noninitiating party. Different consid-
erations apply to permitting a party to use untimely notice to sup-
port economic action under Section 8(d)(1) and 8(d)(3).
Thus, permitting a noninitiating party to lock out or strike after
contract expiration, but only days after the 8(d)(1) 60-day notice
has been served would vitiate the purpose of that section—which is
to permit the parties to have time to negotiate a new contract and
settle their differences. In discussing the ambiguities apparent in
Section 8(d), the Supreme Court noted that there is a “dual pur-
pose” in the Taft-Hartley Act—to substitute collective bargaining
for economic warfare and to protect the right of employees to en-
gage in concerted activities for their own benefit.” NLRB v. Lion
Oil Co., 352 U.S. 282, 289 (1957), citing Mastro Plastics v. NLRB,
350 U.S. 270, 284 (1956).
This is different than the situation where the 60-day notice has
already been served on the other party to the contract and there has
been a failure to notify or an untimely notification to the mediation
services. In that case, 60-day notification of proposed termination
or modification having been given, the parties have already had an
opportunity to bargain and reach agreement on the terms of a new
agreement. Economic action therefore following expiration of the
contract in those circumstances would be justified. United Artists,
supra. Here, however, where the opportunity to bargain for a
maximum of 60 days had not been realized, the noninitiating
party’s use of economic weapons is less justified.
Here, in contrast to the failure to serve the mediation services,
the 60-day notice to Respondent was actually served on Respon-
dent which need only wait until the expiration of the 60 day statu-
tory requirement before it locked out its employees.
To find that the untimely service of the 60-day notice permits an
employer to lock out its employees on the expiration of the contract
but prior to the passage of 60 days would be an unjustifiable exten-
sion of United Artists and not warranted by the intent of Section
8(d) which is to provide an adequate opportunity to parties to nego-
tiate their differences and reach agreement on a renewal collective-
bargaining agreement.
This position is supported by Carpenters District Council of
Denver, 172 NLRB 793, 795 (1968), where the employer timely
served a 60-day notice and the union struck before the passage of
60 days following the notice. The Board held that the union’s strike
which was in violation of Section 8(d)(4) also violated its obliga-
tion to bargain. Thus, the noninitiating party, the union, was obli-
gated to comply with Section 8(d). This case was left undisturbed
by United Artists and has been adhered to in Petroleum Mainte-
nance Co., 290 NLRB 462 fn. 3 (1988).
I accordingly find and conclude that Respondent’s lock out of its
employees prior to the passage of 60 days following the service of
the October 28 notice by the Union violated Sections 8(a)(5) and
8(d) of the Act. Bi-County Beverage Distributors, 291 NLRB 466,
469 (1988).
Although I find that the lockout was unlawful because of Re-
spondent’s imposition of the lockout less than 60 days after the
Union’s notice to it, if the Board disagrees with this conclusion,
and in the interest of completion I will discuss other defenses raised
by Respondent.
2. Waiver
Although the Union’s notice of proposed termination of the con-
tract was untimely, Respondent nevertheless waived the untimeli-
ness of the notice. In Lou’s Produce, 308 NLRB 1194, 1200 fn. 4
(1992), the Board stated that “if the parties actually begin bargain-
ing before the contract expires, they will be deemed to have waived
the requirements that the notice of termination be in writing or that
it be timely.”
Here, the Respondent did not raise the issue of timeliness, did
not refuse to bargain for that reason, and bargaining began before
the contract expired. Industrial Workers Local 770 (Hutco Equip-
ment), 285 NLRB 651, 654 (1987); Hassett Maintenance Corp.,
260 NLRB 1211 fn. 3 (1982); Ship Shape Maintenance Co., 187
NLRB 289, 291 (1970).
3. Respondent’s other defenses
Respondent also argues that it was justified in locking out its
employees because (a) it reasonably believed that the Union in-
tended to strike on the contract’s expiration if its demands were not
met, and (b) of its concerns that employees would engage in sabo-
tage, and because of the nature of its product.
Respondent argues that certain factors, set forth above, which
took place before and during negotiations convinced it that the
Union would strike.
The facts that according to Respondent, the Union was unusu-
ally confrontational prior to negotiations during which it filed many
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482
grievances and sought arbitration rather than discussing them or
that the Union had not sent a timely notice terminating the contract
do not support a finding that the Union intended to strike on the
contract’s expiration. Nor does the allegation that the Union’s ne-
gotiators were late in arriving at negotiations or its making extreme
requests in bargaining establish that it intended to strike.
Respondent further contends that The New Blue Collar Move-
ment authored by the Union’s chief steward Stephenson similarly
indicates an intention to strike. The booklet does propose a “mili-
tant posture” including nonviolent mass civil disobedience, direct
action, and the physical interference with an employer’s ability to
operate, produce, and deliver goods. However, there was no spe-
cific reference in the material to Respondent or these negotiations.
It was a general discourse on the state of the union movement in
the United States. It cannot be concluded that the piece establishes
that the employees intended to strike Respondent.
Respondent also contends that Stephenson’s direction to union
members during the period December 9 to 11 that they remove all
personal items from their lockers indicates that the employees in-
tended to strike. Stephenson testified that a strike was a “possibil-
ity” and the Union made certain preparations for one—including
telling its members to remove such items. This direction indicates
that employees were engaging in preparations for a strike, and that
Respondent could reasonably believe, based on this direction, that
they intended to strike. I am aware that Respondent’s witness testi-
fied that union representatives did not tell him that there would be a
strike, however it has been held that even where an employer was
told that the union did not plan to strike it had a reasonable belief
that a strike would occur, and its lockout was lawful. C-E Natco/C-
E Invalco, 272 NLRB 502, 505 (1984).
At the final bargaining session on December 13, Respondent
was asked for and presented its final offer. According to Respon-
dent’s negotiator Reidinger, union negotiator McClam said that the
parties were at impasse, and the Union’s bargaining committee
would not recommend the offer for ratification, and that McClam
refused to negotiate the next day, Saturday.
In addition, according to Reidinger, McClam requested that the
ratification vote take place at the plant on Monday morning, fol-
lowing the contract’s expiration. Reidinger refused.
In contrast, union negotiator Stephenson stated that he believed
that the parties were making movement toward the end of that
session. He conceded that Respondent’s final offer was presented
that evening which the Union would not recommend for ratifica-
tion. However, he contradicted Reidinger’s recollection that the
Union refused to negotiate the next day. Stephenson stated that the
Union was “pushing” to negotiate the next day. I credit Reidinger’s
version of this incident. McClam did not testify. According to
Reidinger’s credited version, McClam said the parties were at an
impasse, and the Union requested Respondent’s final offer. Even
Stephenson concedes that Respondent presented its final offer at
that meeting, and that the Union refused to recommend that it be
ratified. Accordingly I cannot find that the Union offered to bargain
the following day. I therefore credit Reidinger that the Union re-
fused to bargain the next day, Saturday. In fact, no bargaining oc-
curred the following day. That fact lends support to a finding that
the Union refused to negotiate the next day.
General Counsel argues that despite that the Union would not
recommend that the Respondent’s final offer be ratified, the em-
ployees were free to reject that recommendation and ratify the
contract. That may be true, but the question here is whether Re-
spondent had a reasonable belief that the employees would strike. I
find that it did, based on the direction that employees empty their
lockers, the Union’s request for a final offer, McClam’s statement
that the parties were at impasse, and the Union’s refusal to recom-
mend ratification of the contract. Thus, notwithstanding that Re-
spondent was not specifically told that the employees would strike,
it had a reasonable belief that they would do so. American Ship
Building, 380 U.S. 300, 327 (1965).
In American Ship Building, the Supreme Court upheld the use of
a post-impasse lockout in support of an employer’s bargaining
position. The Board has also held lawful a pre-impasse lockout for
the same purpose. Darling & Co., 171 NLRB 801 (1968); Harter
Equipment Co., 280 NLRB 597 (1986). There was limited evi-
dence given here concerning the bargaining which occurred in
relation to whether an impasse in bargaining had actually occurred
at the time of the lockout. Accordingly, I make no findings con-
cerning that issue. However, under these precedents, assuming
Section 8(d) was not violated, an offensive lockout would not vio-
late Section 8(a)(3) of the Act. Here of course, no violation of that
section has been alleged.
Respondent was further justified in locking out its employees
due to the nature of its product. The Union requested that a ratifica-
tion vote take place in the plant on Monday, December 16. Re-
spondent reasonably believed that if the employees voted to reject
its final offer at that time and began a strike the sudden cessation of
work would be dangerous to the workers and injurious to its prod-
uct.
Respondent’s contention that it engaged in the lockout because
of fear of sabotage prompted by a report of a chemical spillage on
the last day of the negotiations is without merit.
There was no specific evidence of a deliberate spillage of mate-
rials, and no evidence that the Union or its agents caused the spill-
age. Although conceding that the spillage could not be attributed to
the Union, the fact that Reidinger was told that similar incidents
occurred at the end of prior negotiations is irrelevant. Such specula-
tion and innuendo is not sufficient to provide a lawful basis for the
lockout. Respondent has not shown that the lockout was prompted
by a legitimate fear of employee vandalism. ConAgra, Inc., 321
NLRB 944, 963 (1996). Similarly, there was no proof that any
employee slowed down, or that if that had occurred, that the Union
was responsible.
CONCLUSIONS OF LAW
1. Drew Division of Ashland Chemical Company, A Division of
Ashland Oil, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Industrial and Allied Workers Local No. 97, Inter-
national Brotherhood of Teamsters, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.

All full-time and regular part-time production and mainte-
nance employees and warehouse employees at Respondent’s
Kearny, New Jersey plant excluding office clerical employ-
DREW DIVISION OF ASHLAND CHEMICAL CO. 483
ees, laboratory employees, professional employees, salesmen,
guards and supervisors as defined in the Act.

4. At all times material, Local 97 has been and is now the exclu-
sive collective-bargaining representative of the employees em-
ployed in the appropriate unit described above, within the meaning
of Section 9(a) of the Act.
5. By locking out its employees during the period 12:01 a.m. on
December 16, 1996 thru December 23, 1996, prior to the passage
of 60 days following the Union’s notification of its intention to
terminate their contract, Respondent violated Sections 8(a)(5) and
(1) and 8(d) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent locked out its employees from
12:01 a.m. on December 16, 1996 thru December 23, 1996, I shall
recommend that it be required to make the unit employees whole
for any loss of wages or other benefits they may have suffered by
reason of the unlawful lockout, without prejudice to seniority and
other rights, computed 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).
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended5
ORDER
The Respondent, Drew Division of Ashland Chemical Com-
pany, A Division of Ashland Oil, Inc., Kearny, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully locking out its employees.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Make whole the unit employees for any loss of earnings and
other benefits suffered as a result of the lockout from 12:01 a.m. on
December 16, 1996 thru December 23, 1996, in the manner set
forth in the remedy section of the decision.
(b) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its facility
in Kearny, New Jersey, copies of the attached notice marked “Ap-
pendix.”6 Copies of the notice, on forms provided by the Regional

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 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-
Director for Region 22, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent im-
mediately on receipt 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 altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since December 16, 1996.
(d) Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the Respon-
dent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT unlawfully lock out our employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make whole our employees in the appropriate collec-
tive-bargaining unit set forth below for any loss of earnings and
other benefits suffered as a result of the lockout from 12:01 a.m. on
December 16, 1996 thru December 23, 1996.

All full-time and regular part-time production and maintenance
employees and warehouse employees at Respondent’s Kearny,
New Jersey plant excluding office clerical employees, laboratory
employees, professional employees, salesmen, guards and supervi-
sors as defined in the Act.
ASHLAND OIL, INC.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”