General Portland Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 826 (N.L.R.B. 1987)

826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Portland Inc./Fort Worth Plant and
Cement, Lime , Gypsum Allied Workers Division
of International Brotherhood of the Boilermak-
ers, Iron Ship Builders , Blacksmiths, Forgers
and Helpers , AFL-CIO. Case 16-CA-11785
30 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 September 1985 Administrative Law
Judge Richard J. Linton issued the attached deci-
' sion. The General Counsel and the Charging Party
filed exceptions and supporting briefs. The Re-
spondent filed cross-exceptions and an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,'
conclusions2 and to adopt the recommended
Order.
1 The General Counsel has excepted to some of the judge 's credibility
findings. The Board 's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance 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 exanuned the record and find no basis for re-
versing the findings.
Inasumuch as we agree with the judge that the Union 's assertion of
safety complaints was a pretext to engage in a series of work stoppages,
we find it unnecessary to rely on his alternative finding that the Union
was obligated to follow the prior grievance procedure for matters which
allegedly arose during the extended term of the prior contract. We also
find no need to rely on the judge's discussion in fn . 31 of his decision of
the legality of an employer's use of permanent and temporary replace-
ments during a lockout. See Harter Equipmen4 280 NLRB 597 (1986).
2 In dismissing the complaint, we emphasize our reliance on the par-
ticular facts of this case in which the Respondent had legitimate and sub-
stantial justification for placing conditions on the strikers' reinstatement.
We further find that the General Counsel has failed to meet the burden
of proving actual antmnion intent or that in the circumstances of this case
the Respondent 's insistence on 21 days' advance written notice of work
stoppages and/or its later revised 3 days' advance notice requirement
constituted mherently destructive conduct. We also find that the present
case is distinguishable from the cases cited by the General Counsel and
the Charging Party, in which the Board found that employers had unlaw-
fully conditioned the strikers' reinstatement after they had unconditional-
ly offered to return to work. Unlike here, in Brooks, Inc., 228 NLRB
1365 (1977), the strikers were unfair labor practice strikers and there
were no threats by the union of future strikes. American Cyanamid Co.,
235 NLRB 1316 (1978), involved unfair labor practice strikers and the
employer's requirement of an absolute waiver of reinstatement rights for
the strikers, whose jobs had been permanently contracted out, and a 1-
year bargaining waiver. Although Lindy's Food Center, 232 NLRB 1001
(1977), and Roadhome Construction Corp., 170 NLRB 668 (1968), in-
volved economic strikers, they are distinguishable because the employers
there did not prove a legitimate and substantial business justification for
conditions placed on the strikers' reinstatement
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
J. O. Dotson, Esq., for the General Counsel
Ray J. Schoonhooven, Esq., Frederic H. Fischer, Esq., and
Kay Ann Hoogland Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Chicago, Illinois, for the Respondent
Stephen B. Rubin, Esq. (Asher, Pavalon, Gittler & Green-
field), of Chicago, Illinois, for the Charging Party
DECISION
STATEMENT OF THE CASE
RICHARD J . LINTON, Administrative Law Judge. At
the end of an economic strike called by the Union to
protest the suspension of several bargaining unit employ-
ees, the Respondent refused to accept the unconditional
offer of the strikers to return to work, and it locked out
everyone not then working until the Union agreed to
give an advance notice of 21 days before calling any
future work stoppages . I find that Respondent acted law-
fully when it conditioned the return of the strikers on the
Union's signing an agreement to give 21 days ' notice
before commencing any future work stoppages, and I
shall dismiss the complaint.
This case was tried before me in Fort Worth, Texas,
on 22-25 April 1985 pursuant to the 7 March 1985 com-
plaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 16 of the Board . The complaint is based on a
charge filed 10 August 1984 by Cement, Lime, Gypsum
Allied Workers Division of International Brotherhood of
the Boilermakers , Iron Ship Builders , Blacksmiths, Forg-
ers and Helpers, AFL-CIO (Union or Charging Party),
against General Portland Inc./Fort Worth Plant (Re-
spondent, GP, or General Portland).'
In the complaint the General Counsel alleges that
during July-September the Respondent violated Section
8(a)(3) and (1) of the Act by conditioning reinstatement
of strikers at its Fort Worth, Texas plant on a require-
ment that the Union agree in writing to give Respondent
advance notice of up to 30 days before commencing a
work stoppage , and by refusing to reinstate strikers when
the Union declined to agree to Respondent's condition.
By its first amended answer Respondent admits certain
factual matters , denies violating the Act, and pleads sev-
eral affirmative defenses.
On the entire record , including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel , the Union, and
the Respondent , I make the following
1 All dates are for 1984 unless otherwise indicated
283 NLRB No. 133
GENERAL PORTLAND INC. 827
FINDINGS OF FACT
I.JURISDICTION
A Delaware corporation with a plant in Fort Worth,
Texas, Respondent manufactures , sells, and distributes
cement . During the past 12 months, Respondent pur-
chased and received at its Fort Worth plant products ex-
ceeding $50,000 in cost directly from points located out-
side the State of Texas . Respondent admits, and I find,
that it is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act (1:33).2 Although Respondent so stipulated, it
expressly reserved its position that the Union is not the
statutory representative of Respondent's employees at
the Fort Worth plant. The relevance of this contention is
discussed later.
IIL THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Fort Worth plant
At its Fort Worth plant Respondent manufactures
Portland cement, oil well cement, and other cement-re-
lated products. Division General Sales Manager William
E. Smith was the manager of Respondent 's Fort Worth
plant during the 1984 events made the subject of this
proceeding (3:596). Smith described in detail the nature
of the cement production at Fort Worth and the type of
equipment and machinery used. He also submitted a
four-page document describing the process (R. Exh. 28).
Raw materials are crushed and formed into a slurry.
The slurry is fed in a continuous process into' three kilns
where it is burned at a temperature of about 2700 de-
grees Fahrenheit (4:783; R. Exh. 28 at 1). The burning
causes the slurry to form into,black balls known as clink-
er (3:622). The clinker is reground with a small percent-
age of gypsum into Portland cement. The finished prod-
uct-is stored in silos' and thereafter shipped to customers
(3:622-624).
The heart of this pyroprocessing line, as it is called, is
the rotary, kiln and its ancillary equipment (3:612). The
kiln is a huge horizontal cylinder 11 feet in diameter,
over 400 feet long, with walls made of three-fourths-inch
steel (3:620, 641). Each kiln is positioned on six sets of
rollers and, in the continuous' process , rotates about its
longitudinal axis about one revolution per minute (R.
Exh. 28 at 1). Excluding the refactory brick lining the
kiln, the., material inside the kiln weighs' from 60 to 200
tons, or more (3:641; R. Exh. 28 at 4). There is a complex
system of fans used to exhaust the, heated air and to assist
in what cooling is undertaken . General Sales Manager
Smith estimated the current cost , of replacing a kiln at
$15 to $20 million (3:638; R. Exh. 28 at 2).
On leaving the kiln , clinker is moved to the finish mill
where it is ground into 'powder before being stored and
shipped to customers . Finish mills also are cylinders, al-
though they are "only" 13 feet in diameter and 16 feet
long. They are half full of 3-inch steel balls which grind
the clinker into powder as - the cylinders are rotated
(3:648). As with the kilns, the replacement cost for a
finish mill is $ 15 to $20 million (3:648).
As one might expect with the extreme heat utilized in
the kilns,3 and with the presence of gases there is an
abundance of danger from the possibility of explosions
which can result in the loss of life and result in damage
in the millions of dollars (3:639). Smith described a 1981
incident at Fort Worth resulting in the death of two
workers from a steam explosion caused when water
rushed into the superhot area of the kiln (4:871-872).
As the record ' 'reflects, training of the kiln operator
(burner) is extensive, and Respondent has issued its kiln
burner employees an instruction manual containing over
60 pages (3:632).4 Two other employees work with the
kiln, a fender employee and an oiler. The burner, of
course, has the critical duties. Respondent's around-the-
clock operation requires that employees working in con-
tinuous process jobs , including the kilns, change shifts at
their duty stations (3:618, 626).
Although massive in size , the kilns are delicate equip-
ment because of the extremely high temperatures used in
production. Improperly shutting down a kiln poses
severe risks to both people and property. Smith testified
that it is during shutdown that the greatest hazard poten-
tial exists for explosions, injury, and damage (3:638, 642).
In the production process the kiln expands over 10
inches in length (3:640). When a kiln is shut down, such
as for maintenance, a specific procedure is followed. the
burner's instruction manual contains three pages devoted
to this critical sequence (3:632, R. Exh. 30). A procedure
is described for an emergency shutdown. As the kiln
cools during the shutdown, it must be rotated every few
minutes or it can warp into a giant , useless steel banana
(3:640).
As one would anticipate, the normal shutdown time
takes longer than is required for an emergency situation.
Smith testified that it required 3 days for Respondent to
completely shut down kiln 3 in mid-May (4:785-786, 793,
814). However, it appears that kilns are not normally
shut down completely to effect minor maintenance or
adjustments, particularly when the adjustments occur
away from the superhot area of the kiln.,
International Representative Paul H. Balliet estimated
that it would take 12 to 16 hours to shut clown a kiln the
size of Respondent's (2:231). He further testified that the
rotating could be done periodically and, therefore, the
kiln would not have to be attended constantly during the
(emergency, apparently) shutdown procedure (2:239-
240). I credit Smith over Balliet to the extent there are
differences on this. Smith' has had much more experience
s The heat is produced by gas- or coal-fired processes (R. Exh. 28 at
2).
z References to the ' 4-volume transcript of testimony are by volume 4 It apparently takes weeks to train a new employee for the kiln burner
and page . job (4:833).
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the cement industry, and he is particularly familiar
with the equipment at Respondent's Fort Worth plant.
Smith testified that the emergency procedure requires,
at least 16 hours of constant attention to shut down a
kiln safely (4:765-766, 785, 825). The kiln must be rotat-
ed one quarter turn up to four or five times the first 30
minutes (3:640; 4:765), and periodically the balance of the
16 hours (4:784).5 After the first 16 hours the attendant
can cease his constant attention to the kiln and occasion-
ally walk away from it, but even after the 16 hours the
kiln still must be turned at different intervals (4:784-787).
By the 36-hour mark, Smith testified, an attendant could
go to the kiln every hour or so and rotate it slightly
(4:826).
The principal focus has been on the kiln, but there are
other functions Respondent classifies as part of the con-
tinuous process, including the finish mills. Although ex-
plosions are not one of the dangers from incorrect oper-
ation or an improper shutdown of-a finish mill, such ac-
tions can result in extensive damage of motors, bearings,
equipment, and product (3:648-651). Smith testified that,
in an emergency afinish mill could be shut down in 15'
to 20 minutes (4:767).
2. Bargaining history
Respondent and the Union have been parties to a suc-
cession of collective-bargaining agreements (CBA) at the
Fort Worth plant (2:84). Recognition is extended there
by Respondent to the United Cement, Lime,. Gypsum
Workers International Union, AFL-CIO, CLC, and its
local unions. Local 68 was the union designated for the
Fort' ' Worth plant. Respondent negotiated a basic agree-
ment for general application plus supplemental agree-
ments covering ' the different plants, such as the Fort
Worth plant. By its terms, the most recent CBA was ef-
fective from 1 May 1981 through 30 April 1984 (R: Exh.
14). Through agreement, the parties extended the con-
tract until either mid-May6 or 9 July at 7 a.m." Smith,
then the plant manager at Fort Worth but now the divi-
sion sales manager, also testified that after 15 May the'
parties engaged in further bargaining, but those negotia-
tions were unsuccessful (3:600-601).
Before passing from 15 May, I should note that on that
date Smith called Balliet and asked if he would promise
an orderly shutdown in the event of a work stoppage.
Balliet agreed that he would do so (3:599). Balliet con-
firmed this at the hearing (2:185). Moreover, Smith cre-
dibly testified that Local 68 President Pilcher gave him
the same promise ° on this occasion (3:600). Pilcher did
not testify.
It is undisputed that the morning of 9 July (apparently
with the start of the 7 a.m. shift) Respondent implement-
5 Much more is involved than simply rotating the kiln. Thus, the coal
feed is stopped, the temperature must be reduced gradually, and other
items, such as fans and chains , have to be stopped (R. Exit 30 at 4).
6 Thomas W. Tatum, Respondent's vice president of employee rela-
tions, testified that August Clavier Jr., the Union's contract negotiator,
canceled the contract extension about 10 May (2:507). Smith, the former
plant manager, testified that the Union 's cancellation was effective for 15
May (3:598).
' As testified to by International Representative Jack W Hammond Jr.
(2:84).
ed the terms of its last best offer which it had made to
the Union (3:601). From the testimony of International
Representative Paul H. Balliet (2:186) and Local 68
President Odis W. Johnson (2:270),8 it is clear that the
Union was 'aware, or had been notified, that-Respondent
planned to implement its last offer at that time.9
B. The Strike of 9 July 1984 and Subsequent Events
1. Union meeting of 8 July 1984 at Holiday Inn
On Sunday evening, 8 July, the Union held a meeting
at a local Holiday Inn. International Representatives Bal-
liet and Hammond attended, along with Local 68's presi-
dent, Richard Pilcher, Vice President Odis Johnson, plus
three or four employees who apparently were members
of one or more committees of the Union. About., 10 per-
sons were present.
Regardless of whether the initial purpose of the meet-
ing concerned safety, it is clear that at the meeting a dis-
cussion.ensued concerning a technique of confronting
management. Balliet testified that he made available to
those in attendance some 10 photocopies of two pages"
from some book describing a tactic of confrontation al-
legedly used by UAW Local 282 in St. Louis in 1981
(2:195, 244).
The copied material relates a story concerning UAW
Local 282 and Moog Automotive, and begins with the
sentence, "Another , alternative is what used to be called
a `slowdown strike."' The_ article states that in September
1981 Moog Automotive, Inc., a parts supplier, presented
the 500 member local with a final offer which would
have cut wages by $3, an, hour while boasting of record
sales and making a 38-percent return, on investment.
Rather than calling a traditional strike in the face of
probable replacements from the 100,000 unemployed in
St. Louis, the Union decided on: a different tactic de-
scribed as follows in Balliet's leaflet:
When the contract expired, all rules were off.
Workers in every department were signed up for a
"Solidarity Committee." Under'the leadership of a
committee, the Moog' workers began to "work to
rule," refuse overtime, hold,union meetings on the
plant floor during lunch, and take concerted action
to directly confront management over health and
safety and production problems right on the spot.
Most workers gave a dollar a week to a Solidarity
Fund to help 'workers who might be suspended or
fired. "We developed our own strategy on handling
grievances," says Mike Cannon, shop chairman.
"Workers would all get together, turn off their ma-
6 Johnson took office as president of Local 68 on 1 January 1985. He
was vice president of Local 68 during the, preceding 3 years (2:251;
3:544).
9 By letter dated 7 November 1984, NLRB Region 16 dismissed
charges in two related cases. The dismissal letter reports that, by letter of
5 July, Respondent informed the Union that it planned to implement on 9
July the terms of its,last offer (R. Exh. 5).r I note this only in passing, for
the 5 July letter is not in evidence, and the 7 November dismissal letter is
in evidence only to show a course of events and not as evidence of the
truth of independent factual assertions contained in the letter.
19 The two pages are reproduced on a single , page in the photocopies
(R. Exh. 3, p. 2).
GENERAL PORTLAND INC.
chines, and, walk into the supervisors' offices. The
foremen would'cry, "Get back to work," but we in-
sisted on talking about the specific problem until it
was resolved." '
On January 15, Martin Luther King's birthday,
almost the entire work force stayed home. By
March, the union was calling regular noontime and
breaktime rallies inside the plant. Three times it
called plantwide "Solidarity Days" on company
time at the union hall. Over 80% of the employees
attended.
Moog responded by stepping up the discipline.
One worker received a suspension and reprimand
for allegedly turning off- his machine two minutes
before quitting time . He taped the reprimand to the
back of his shirt. When the foreman told him he
couldn't do that, 70% of the workers in the depart-
ment taped reprimand forms to their shirts too. The
next day, the foreman was transferred.
Finally, Moog ' capitulated. The'workers ratified
an agreement that gave them a raise retroactive to
their contract expiration date, two more raises over
three years, COLA, insurance improvements,
Martin Luther King's birthday as a paid holiday, a
special grievance procedure on health and safety,
and total amnesty and back pay for every single one
of the seven members fired and 43 suspended during
the six months of the action.
It is clear that the Union here planned to employ a
similar tactic at the Fort Worth plant. Thus, a scheme
was devised whereby employees would walk off the job
the following morning for the purpose of attending a
"safety meeting" at 7:30 a.m.
International Representative Hammond testified that
he told the Holiday Inn group of how he had used the
tactic on two occasions of expanding the safety and
grievance committees at Kaiser Cement Company to en-
compass the whole shift. The Kaiser contract had ex-
pired and the Union previously had been unsuccessful in
getting Kaiser to,,discuss the safety (inspecting spindles
on quarry trucks) and grievance (Kaiser refusing to
allow employees to take emergency calls) matters. Ac-
cording to Hammond, when Kaiser saw that its entire
shift of workers had walked off the job and assembled to
discuss the safety/grievance matters as a committee of
the whole, the Company began talking, the problems
were resolved, and the employees returned to, work
(3:517-518). Hammond then testified (3:518): "I told
them that is what we want to do tomorrow."
Hammond further testified that the employees were to
ask for relief before leaving their, jobs to join the expand-
ed safety committee, and that if Respondent refused to
relieve them, then the employees were to shut down
their equipment in an orderly fashion without harming
anything. Referring to a passage in a- book on labor law,
Hammond warned the group that the employees' con-
duct would lose its protected status if the employees
damaged equipment, cautioned that the Union could be
sued, and told of other adverse consequences (3:516).
Odis Johnson testified that following the Holiday Inn
meeting he telephoned several employees at home and
829
told them to attend a safety meeting the next morning.
He told them that between 7 and 7:30 a.m. they should
ask for relief to attend a safety meeting, and to leave
even if they'received no relief (2:271-272).
During July-August 1984 C. E. Bartholomew was
chairman of Local 68's grievance committee (2:289). He
testified that although some ' of the Holiday Inn attendees
were going to call employees that evening, other atten-
dees planned to meet employees as they clocked in the
next morning and give them their instructions` at that
time (2:306).
Testimony confirming all or parts of Hammond's ver-
sion came from Balliat (2:241-242), Odis Johnson (2:268),
C. E. Bartholomew (2:305), Gary L. Gann (3:390-391),
and Clyde D. Carter (3:421). Balliet testified that the
time suggested to wait for relief before shutting down,
was 15 minutes (2:248), but that no specific instructions
were given to the kiln operators (2:242). Carter testified
that as Tim Worthen, the burner/operator of kiln 3, was
not present at the meeting, Carter spent about 30 minutes
the next morning explaining to Worthen, and to finish
mill operator Spencer Hart, that they should shut down
their equipment in an orderly fashion if they were not re-
lieved. At the hearing Carter did not define the "orderly
fashion" in terms of minutes or hours, and if it differed
from the 15 minutes described by Balliet the record does
not show it.
During July-August 1984 Gary L. Gann was Local
68's financial secretary and a member of the grievance
committee and the negotiating committee (3:376-377).
Under cross-examination , Gann confirmed that the Holi-
day Inn group agreed that the only way the Union could
force Respondent to return to the bargaining table was
to use the confrontational tactic described to them by
Hammond (3:397).
Finally, respecting the photocopy of a page describing
the Moog Automotive confrontation, International Rep-
resentative Balliet testified on cross-examination (2:195-
196): -
Q. How do you recognize it?
A. I reproduced this from a book and handed it
on Sunday night to a few employees, members.
Q. I see . To a few members , I see . What was the
purpose of your introducing it and handing it out
on Sunday night?
A. Because of the-it ' is the Moog case, Moog
Automotive case , in regards to protected concerted
activity.
Q. You handed it out so the employees would
learn about in-plant tactics . Right?
A. Yes.
Q. And about confrontations with management.
Right?
A. Yes.
Q. And is this what you were doing on Monday
morning?
A. Yes.
Q. This in-plant confrontation which is described
in this document is what you were engaging in on
July 9, the morning, is it not?
830
A. Yes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
References to safety problems at the Holiday Inn ap-
parently were rather vague and limited, as is the testimo-
ny concerning the subject . It seems that a certain P & H
crane was considered unsafe by Odis Johnson , However,
Johnson testified that his complaint about the crane was
several months old (2:270). He concedes that he had
never filed a grievance concerning the crane nor was he
aware of ' anyone having filed a grievance over the
crane's safety (2:270-271). Johnson also testified that he
complained at the meeting about the taste of the water
(2:270).
Respondent contends that the Union's reliance on
safety, was nothing but a cloak to mask a "quickie strike"
or a form of industrial harassment (1:13; brief at 55-58).
The purpose of this confrontation tactic was to bring Re-
spondent back to the bargaining table (3:397, Gann) and,
perhaps, to dissuade Respondent from its plan to imple-
ment its last offer the' morning of 9 July. As we recall,
Odis Johnson testified that the Holiday Inn group decid-
ed to confront Respondent on 9 July with safety issues
because Respondent was going to implement its last offer
unilaterally (2:270).
2. Events of 9 July 1984
There can be no doubt that the union officers and
committee members successfully spread the word that
the entire first shift on. 9 July was to seek relief and
report for a safety meeting at 7:30 a.m.
As then Plant Manager Smith testified, Respondent
implemented its last contract offer effective the morning
of 9 July (3:601). About 25 minutes into the 7 a.m. to 3
p.m. shift, the intercom, Smith testified, "exploded" with
calls (3:601).11
Several witnesses testified concerning what occurred
thereafter . About 7:30 a.m . International Representatives
Hammond and Balliet , accompanied by Odis Johnson
and Gary Gann, arrived at Smith's office and were invit-
ed in. Several other employees stood outside the door
and looked in.
As this was Hammond 's first visit to the Fort Worth
plant, he introduced himself to Smith and stated that
they were thereto - discuss some safety problems, specifi-
cally the P & H crane "plus others." Smith said he
would be willing to discuss safety but that there was a
procedure for doing so. Hammond inquired whether Re-
spondent had implemented its last offer, and Smith re-
plied yes . Hammond replied, "We will be operating
under Section 7 of the National Labor Relations Act."
Hammond then said the plant would be shut down to
bring in all the employees to discuss the safety matters.
Smith responded that the plant would not be shut down,
that all the employees would not have to attend, and that
there was a procedure for discussing safety problems.
By this- time several people were speaking at once.
The confusion deepened when a supervisor, Administra-
tive Services Manager David E . Parsons, arrived and ad-
vised Smith that the kiln 1 operator (Pilcher) was de-
manding relief in 5 minutes to attend a meeting, and that
11 Presumably the calls were about employees requesting relief.
he, Parsons , has advised the operator not to leave his job
or he would be suspended pending discharge.
A moment later Maurice Simpson , first-shift supervi-
sor, arrived and informed Smith that the kiln 3 operator
(Tim Worthen) and the finish mill operator (Spencer
Hart) were demanding relief in 5 minutes.
Smith then requested Hammond and the union group
to go to the conference room, but they declined , saying
they would go down to the parking lot to join their
brothers. Turning to Parsons and Simpson , Smith in-
structed them to go into the plant and find out what was
happening.
Downstairs the Hammond-Balliet group found em-
ployees gathering , and , Local 68 Richard Pilcher (kiln I
burner) informed Hammond that he was to be suspended
and terminated for leaving his job when the Company
refused to relieve him . About seven other employees in-
formed Hammond that the same fate had befallen them
(2:86, Hammond; 3:405, Gann).
The Hammond-Balliet group, this , time larger in
number, went back upstairs to speak with Smith. The
hallway was full of employees , and several were speak-
ing at once . Hammond told Smith -that several employees
told him they had been suspended pending discharge,
and that Hammond wanted the suspensions lifted. Smith
replied that he would discuss safety matters, but that he
would not agree to anything regarding discipline at that
point . Hammond stated that they would not talk about
safety until the suspensions were lifted . Hammond
warned Smith that he was violating the law because the
employees had a right to discuss safety matters with Re-
spondent in this manner and that this is the way they
would do business since there was no contract (3:604,
Smith). 12
Smith stated that the same safety discussion procedures
were in effect that existed before the contract terminat-
ed. Hammond responded that they were not bound to
that because there was no contract . Hammond said they
would return to the parking lot until Smith came to his
senses and agreed not to discipline the employees. The
time was about 7:45 to 8 a .m. (3:605). The Hammond-
Balliet group returned to the parking area by the build-
ing.
About this time Smith observed that a large crowd of
employees had gathered in' the- parking lot under , the
windows of the administrative offices . A group of about
15 seated themselves by a wall and fixed a stare on the
plant manager's office . Meanwhile, supervisors and ' man-
agers were scrambling to operate the plant and protect
the equipment (3:610).
At this time many of the employeesY3 began singing a
song, "Solidarity Forever ," the lyrics of which assert
that there is strength for workers through union solidari-
ty (R. Exhs. 2, inside back cover, and 3).
Around 8:40 to 8 :50 a.m ., Smith dispatched supervisor
Bartlett'to invite Hammond and his group back upstairs.
12 Balhet confirms this testimony and also concedes that Hammond
said there would be more of these meetings (2.192-193).
13 Of the 65 first-shift employees, 64 walked off the job (3:611).,Ham-
mond testified that these ranks swelled to 100 or more by employees
from the second and third shifts (1.89, 90).
GENERAL PORTLAND INC.
When they , had arrived, Smith told Hammond that Re-
spondent was willing to meet on safety matters, but that
the Company would not change its position regarding
discipliine . - The union group asserted that it would not
discuss safety under those circumstances , and the union
group returned to the parking lot.
About 9:30 a.m., after a police cruiser arrived on Re-
spondent's request, Smith went to the parking lot and,
from the back of a pickup, instructed the employees to
leave the premises. The employees thereupon repaired to
the union hall.
At the union hall the group held a meeting and decid-
ed to strike in protest of Respondent's suspension of
some of the employees who had engaged in the work
stoppage (2:89, Hammond; 2:149-150, Balliet; 2:253, 277,
Johnson).
Around 11 :30 a.m., Hammond telephoned Smith and
informed him that the Union was commencing a strike at
noon to protest Respondent's unfair labor practices. Un-
known to Hammond, Supervisor Parsons was listening
on anextension, took notes, and testified concerning the
conversation. Consistent with the version of Smith and
Parsons, I find that Hammond did not mention the sus-
pensions specifically . I note that the charge Balliet filed
that very day in Case 16-CA-11725, discussed below, al-
leges , violations of Section 8(a)(l),' (3), ,and (5). It is im-
material whether Hammond specifically referred to the
suspensions when he spoke to Hammond.
The Union established a picket line at noon on 9 July
and did not cease picketing until the morning of 10
August. About 10 July Hammond returned to California,
and Balliet remained in Fort Worth until August (2:150).
The legend on the picket signs asserted that the strike
was to protest unfair labor practices (2:253).
3. Correspondence and later events
During the week following 9 July there were many
contacts between the parties, including correspondence
and discussions in person.
By mailgram dated 13 July, the Union, by-Internation-
al Representative/Coordinator Paul H . Balliet, notified
Smith of the "continued availability" applied to all bar-
gaining unit employees , including those previously sus-
pended . Balliet ends the mailgram by stating , "It is our
position that all bargaining unit employees are entitled to
full back pay." (G.C. Exh. 2.)
Smith wired a reply on 14 July suggesting the parties
discuss matters (G.C. Exh. 3). On 16 July the parties met
at a local motel , the Sandpiper , to discuss the situation.
Smith described Respondent's' conditions for the return.
First, the Union, both the International and Local 68,
must promise in writing to give written notice at least 30
days in advance of any future work stoppage. Second,
Respondent , would continue its investigation and would
impose discipline in its discretion . Third, there ' would be
no backpay . Balliet expressed no position , but said he
would notify Smith later of the Union's response.
Two days later Balliet -requested Smith to put Re-
spondent's conditions in writing. Smith did so by letter
dated 19 July (G.C. Exh. 5). No reference is made by
Smith to backpay, but the other two items (investigation
will continue and discipline where appropriate, and a 30-
831
day notice) are. The paragraph setting forth Respond-
ent's position on the 30 -day notice is pertinent and reads
(G.C. Exh. 5):
Dear Mr. Balliet:
You will recall that all employees walked off the
job in concert on July 9 without any advance notice
or warning, jeopardizing the plant and equipment to
the possible damage of several hundred thousands
of dollars-some after being specifically instructed
not to leave their critical and costly equipment
without proper relief. In light of that and to pre-
clude further potential damage by sudden and unan-
nounced work stoppage, the Company will require
as the sole condition upon the return to work of the
strikers, a commitment in writing, from the Interna-
tional and Local Union representatives that the
Union (International and Local) will give the Com-
pany at least thirty (30) days written notice in ad-
vance of any future work stoppage by employees of
this plant.
Sincerely,
/s/ W.E. Smith
W.E. Smith
Plant Manager
By letter dated 24 July, Balliet and Pilcher, signing for
the International and Local, respectively, expressed the
opinion that , Respondent 's condition for returning em-
ployees was unlawful. In their last sentence, Balliet and
Pilcher state (G.C. Exh. 6):
We also assure you that should any further walk-
outs be necessitated by your conduct, adequate
notice will be given so as to avoid jeopardizing the
plant and equipment.
Smith wrote back on 27 July asking' Balliet to please
define adequate notice "in some quantifiable time frame."
(G.C. Exh. 7.)
Balliet replied by letter of 30 July defining adequate
notice as being "`Lawfully and reasonably sufficient,' so
as to avoid jeopardizing the plant and equipment." (G.C.
Exh. 8.)
The jousting over the issue of adequate notice set the
parties in their respective positions thereafter. As we
shall see, it directly impacted on the employees when
they tried to return to work on and after 10 August, the
date the strike ended and picketing ceased. Indeed, the
debate .has carried over to the legal issues to be decided.
The next correspondence is Smith's letter of 4 August
to Balliet . As the letter explains Respondent's position,
the full text is quoted here. The date of 9 July 1984, ap-
pearing in the letter's second paragraph , is shown as cor-
rected by stipulation at the hearing (2:184). The text of
the letter reads (G.C. Exh. 9):
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dear Mr. Balliet:
On July 9, 1984, Fort Worth Plant bargaining
unit employees walked off the job in concert with-
out any advance notice or warning. International
Representative Hammond, during his discussion
with me on July 9, 1984, stated that the Union
would be doing business in such a manner , that is,
shutting down the plant and then talking.
As I indicated to you in my letter of July 19,
1984, the Company cannot subject its equipment to
potential damage by sudden and unannounced work
stoppages ,, by employees. By the behavior of em-
ployees and Mr. Hammond 's comments on July 9,
1984, the Company feels that it has a high risk ex-
posure to such "quickie" work stoppages. To pro-
tect against this exposure, I previously advised you
that the Company will require, as the sole condition
upon the return to work of the strikers, a commit-
ment in writing, from the International and Local
Union representatives that the Union (International
and Local) will give the Company at least thirty
(30) days written notice in advance of any future
work stoppage by employees of this plant.
In subsequent correspondence, you have indicat-
ed that "adequate notice" will be given by the
Union "so as to avoid jeopardizing the plant and
equipment." To date, however, you have not pro-
vided the Company with a measure of time in quan-
tifiable terms that advance notice will be given.
So that the Company can properly evaluate
whether it can safely operate the Fort Worth plant
under the Union's proposed advance notice terms,
please provide me with the, number of days or
hours of advance notice prior to commencement of
future work stoppages that you will guarantee will
be given by the Union ( International and Local).
'Upon receipt of your quantified advance notice
terms, - the Company will, determine whether it can
accept them or, alternatively, whether some com-
promise time period is acceptable, and I will re-
spond to you accordingly.
Very truly yours,
/s/ W. E. Smith
W. E. Smith
Plant Manager
Balliet responded by his letter of 11 August. Before
reaching that letter, however, we must consider the in-
tervening events. Following Smith's letter of 4 August,
the, parties met on 9 August at the first guard shack at
the entrance of the plant. Balliet was accompanied by
about 'two or three committeemen.
It appears that at the 9 August meeting (at times there
was confusion by several talking at once) the parties reit-
erated' their positions initially. Shortly before the meeting
at the guard shack, Smith had met with his staff and de-
cided that they could reduce the advance notice from 30
days to 21 as the minimum time required to get the man-
power needed to operate the plant in a safe and effective
manner (4:691-692). Therefore, when one of the union
people inquired14 at the gate (first guard shack) meeting
what Respondent's bottom line was, Smith replied 21
days.1 5 Balliet (4:696, Smith) and/or Gary Gann (3:409,
Gann) asked why the 21 days were needed. Smith re-
sponded by reminding Balliet of their conversation, of 15
May in which Balliet had assured Smith that adequate
notice would be given in the event a strike was called
(4:694, 696).16
Smith further asserted, in effect, that the written notice
was required because Respondent considered the Union's
surprise strike of 9 July to have been both (1) a reneg-
ging on Balliet's 15 May assurance, and (2) wholly inad-
equate as to notice (4:699). He also explained that the
time was needed in order to man the plant (3:409, Gann).
Balliet remarked that Respondent had not required the
four employees who had left the strike and crossed the
picket line to sign such a document (2:218-219).17 Smith
replied that the difference was that conditions were not
the same because the others had crossed the picket line
(4:697-698).
The Union group told Smith that they could not agree
to sign Respondent's document or agree to the time. Bal-
liet announced that the pickets would be removed the
next morning by 7 a.m. for the purpose of returning to
work as the other four employees had done, as individ-
uals with no conditions (2:222-223, Balliet; 3:378, Gann;
4:700, Smith).
Smith replied that the strikers would not be coming
back as the others had, for the others had crossed the
picket line and the strikers were engaging in concerted
activity (4:700). Smith stated that the strikers would have
to be phased back in to allow the contractors' employees
to be released in an orderly manner.'8 (2:221; 4:693) He
asked Balliet what schedule they intended to return on,
and Balliet replied "on our schedule." (2:222, Balliet;
4:701, Smith.)
During the meeting Balliet, in reference to Respond-
ent's advance notice requirement, stated that although
the Union would not sign a notice agreement, it would
agree to work for 15 days after returning to work. When
Smith asked what would happen on the 16th day, Balliet
replied that he did not know (2:219; 3:393; 4:699).19
The positions expressed the next morning, 10 August,
set the pattern that the parties followed thereafter. As
Balliet had stated, the strike ended and the pickets were
removed by 7 a.m. Committeeman C. E. Bartholomew,
in the presence of Odis Johnson and a large group of em-
14 It is unclear whether Clyde Carter (3:378) or Balliet (4:692) in-
quired.
15 Earlier in the meeting Smith furnished a written promise for the
Unions to sign commuting to give written notice of at least 30 days in
advance of any future work stoppage (G.C. Exh. 10). Although Smith
places the event as later in the meeting (4:700), the difference is immateri-
al.
16 Balliet concedes that Smith mentioned this (2.217).
17 Smith testified that it was five, not four, employees who crossed the
picket line and returned to work and that they indeed were not required
to sign any commitment such as required of the Union (4:697, 751, 803).
18 Respondent had been operating its plant with supervisors, employ-
ees, and supervisors from other plants of General Portland , and employ-
ees of contractors . No permanent replacements were hired.
19 At some earlier point Balliet had offered a guarantee that the em-
ployees would work 30 days without striking.
GENERAL PORTLAND INC. 833
ployees at the second security shack, informed Smith
that they were there to return to work on an uncondi-
tional basis the same as the others who had crossed the
picket line (2:294; 4:702, 747).
Smith read the following prepared statement (4:703; R.
Exh. 35):
You are not applying to return to work as individ-
uals. Your International Union Representatives ad-
vised me they would remove the picket line so you
and all bargaining unit employees could return to
work without giving the Company a written prom-
ise that the Company would receive written notice
adequately, in advance of any future work stop-
pages. This is a concerted union activity.
Bartholomew asked for a copy, but Smith said no. He
then asked - Smith to talk to them on an individual basis.
Again Smith declined (2:294). Smith read the speech
again, and then asked the employees to leave (2:294;
4:704). The employee group went to the union hall
where they decided to return to the plant in small groups
of twos, threes, and fours and seek to return to work
(2:295).
On that same day, 10 August, and over the course of
the next several days, employees in small groups of
mostly two to four or so, and in some cases only one em-
ployee, went to the plant and offered themselves back to
work unconditionally. Anticipating that this would
occur, Smith had a separate statement prepared which he
read to these small groups. This second statement reads
(R. Earls. 36):
Your action in returning is pursuant to a joint deci-
sion on your part, and is therefore a group action
and concerted activity. The Company will not be
returning employees from strike under these cir-
cumstances.
The response was the same whether it was a visit by a
single employee, or to employees in the small groups
who each announced that they were applying as individ-
uals. The complaint does not allege that these prepared
statements,- either alone or together, constitute a violation
of Section '8(a)(1) of the Act.
On 10 August Odis Johnson, Local 68's vice president,
told Smith that he was willing to do "whatever it took"
to get his job back. Smith said he wished he could
accept Johnson back, but that Respondent would first
have to receive the Union's agreement on a 21-day ad-
vance notice (2:262-263). Employee William E. Bellamy
even told Smith that he was offering himself back non-
union and' as an individual. Smith read one of the state-
ments and said he could not help Bellamy (3:455).
Another employee, Kenneth Mathis, had been on sick
leave for knee surgery and had not participated in the
strike, although he had stopped to talk with strikers once
or twice in the park across from the plant gate. Mathis
had just received a partial medical release on 27 August
when he asked Smith if he could return to work. Smith
gave him the same answer which he gave the others
(3:467). Smith testified that Mathis had not been (fully)
released (4:807). -
When employees pressed concerning what they could
do as individuals to return to work , Smith read a third
prepared statement as follows (4:706, 707; R. Exh. 37):
Have your union representatives give us a written
notice regarding advance notice before future work
stoppages.
It is vividly clear from Smith' s testimonial expressions,
as well as the other evidence, that there was nothing the
former strikers could sign, say, or do which would per-
suade Respondent to accept their offers to return to
work-short of the Union providing Respondent with a
written commitment for advance notice of 21 days
(4:757-758, 761-763). In short, any offer to return to
work, whether made by an individual, by a group of em-
ployees, or by the Union on behalf of the former strikers,
was doomed before made unless the Union signed a com-
mitment to give Respondent an advance notice of 21
days before calling any future work stoppages.
On 11 August Balliet led a group of employees to the
plant where he spoke to Smith and offered the employ-
ees to work unconditionally. Smith gave him a copy of
the proposed commitment to give an advance written
notice of at least 21 days for Balliet to sign (2:172; 4:708;
G.C. Exh. 11). Saying the document was illegal, Balliet
refused to sign. He said they would work 15 clays with-
out a strike. When Smith asked what would happen on
the 16th day, Balliet replied that he could not say
(4:710).20 Balliet then left.
Before he left for the plant that day (2:173), Balliet
mailed a letter, dated 11 August,, responding to Smith's
letter of 4 August. As the letter describes the Union's po-
sition, it is set forth here (G.C. Exh. 12):
Dear Mr. Smith:
Your letter of August 4, 1984 has been received.
First, I believe that you misconstrued the state-
ments of International Representative Hammond on
July 9, 1984.
Even so, we believe -that no employer has the
right to regulate or impose restrictions on the pro-
tected right of workers to engage in lawful concert-
ed activity.
The adequate notice to which ][ referred in my
letter of July 24' is not capable of being quantified.
If a concerted action were to occur, that notice is
adequate which permits either for the immediate
relief of an operator or the orderly shutdown of the
plant's equipment and production facilities.
As soon as the General Portland Cement Compa-
ny begins to understand the rights which workers
haire in the absence of a collective bargaining agree-
ment, and returns to employment those employees
who have made an unconditional application to
return, without imposing unlawful conditions, the
20 I donot credit Balliet's dental that the 15-day topic, was mentioned
(2:225). Balliet said he could not recall as to part of that topic. Smith's
recollection was specific on' this, and it is consistent with my other find-
ings.
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
relationship between the Union and the Employer
will improve substantially.
Sincerely,
/s/ Paul H . Balliet
Paul H. Balliet, International
Representative Coordinator
The next communication between Balliet and Smith
was not for several weeks (2:174; 4:711).
The parties stipulated that on 14 August Smith mailed
to each Fort Worth employee a letter explaining Re-
spondent's position (2:174). Smith begins his letter by
saying he wants to clarify some misconceptions he has
heard from employees. He then describes the 21-day
nptice'requirement. The last four paragraphs of his letter
read as follows (G.C. Exh. 13):
This commitment is required to protect against
equipment, damage and critical interruptions caused
by sudden and unannounced work stoppages. The
behavior of ' employees on July 9, 1984, and the
comments of International Union representatives
has convinced the company that "quickie" work
stoppages are likely unless there is something to
prevent them.
For some reason unknown to me, your Union
representatives have been unwilling to give the
company the written commitment. Because of this
refusal by Union representatives, the Company has
not permitted the return of employees from strike.
If you want to return to work insist that your Inter-
national and Local Union representatives sign the writ-
ten commitment (for your information I have at-
tached an exact copy of the commitment the Com-
pany is requesting). Upon receipt of a properly
signed written commitment, the Company will
promptly arrange for the orderly return to work of
employees.
Disciplinary action is pending for many-employ-
ees because of 'their misconduct on July 9, 1984. A
few employees will be subject to discharge for
gross misconduct. Appropriate discipline will be
taken where warranted.
The next communication between the parties occurred
when Smith, by letter dated 21 September, reduced Re-
spondent's advance notice requirement from 21 days to 3
days (G.C. Exh. 14). A minimum notice of 3 days, Smith
wrote, would enable Respondent "to obtain the neces-
sary manning by outside contractors to continue to oper-
ate the plant and, thus, avoid costly damage and/or
costly shutdown."
In his one-sentence reply of 1 October , Balliet re-
sponded that the Union "reiterates its position, whereby,
we are and have been willing to give you adequate
notice, of, any shutdown to avoid jeopardizing plant
equipment." (G.C. Exh. 15)
By letter dated 4 October21 Smith asked Balliet
whether he was agreeing to give 3 days' notice by his
E'At the hearing the parties stipulated that the date appearing on the
letter is incorrect, and that the correct date is 4 October (2:152-153).
-letter of 1 October-(G.C. Exh. 16). Balliet never respond-
ed. Balliet testified that- after 4 October International
Vice President Richard A. Northrup, of Chicago, took
charge of resolving the strike (2:175).
By mailgram dated 3-1 October Northrup wrote Smith
that "We are again advising you that we have terminated
our strike and are available to work without conditions."
(R. Exh. 38.) Smith replied on 1 November -with his own
mailgram repeating the advance notice requirement of 3
days (R. Exh.' 39).
Matters moved quickly thereafter, and on 8 November
the parties entered into a settlement (G.C., Exh. 17).
Paragraph 1 of the document provides that Northrup, on
behalf of the International and the bargaining unit, agrees
to give an advance notice-of 36 hours before any work
stoppage between the date of the agreement and that of
any new contract (G.C. Exh. 17). Local 68 is not includ-
ed, nor is there any requirement that the 36-hour notice
be in writing. Respondent ,agreed to begin returning em-
ployees to work on 13 November subject to certain cate-
gories of employees subject to various forms of disci-
pline.
C. Procedural History of Charges
The Union filed several unfair labor practice charges
concerning Respondent's actions. A summary of the pro-
cedural history of the cases helps to show the overall
context of events. -
On 9 July the Union filed a charge in Case 16-CA-
11725 alleging that Respondent had violated Section
8(aXl) and (3) of the Act by suspending 8 employees, or-
dering.65 employees to leave its premises, and Section
8(a)(5) by refusing "to discuss safety with the Union (R.
Exh. 4).
By date of 23 July the Union filed a charge in Case
16-CA-11754 'alleging that Respondent had violated Sec-
tion 8(a)(1) and (3) of the Act on 16 July by notifying
the Union that some 65 employees would be subject to
disciplinary action when they returned.to work, by dis-
charging two employees, and by suspending seven others
(R. Exh. 6).
The Region dismissed these two charges on 7 Novem-
ber. In the meantime the Union filed the charge in the
instant case. Filed 10 August, the charge in the instant
proceeding, Case 16-CA-11785, alleges that on 10
August Respondent violated Section 8(a)(1) and (3) of
the Act by refusing to return to work "its employees
who made an unconditional offer to return to work on
or about August 10, 1984."
In his 7 November letter dismissing the first two
charges, Cases 16-CA-11725 and 16-CA-11754, Region-
al Director Michael Dunn attached an explanation cover-
ing over two pages (R. Exh. 5). The antepenultimate and
penultimate paragraphs of Dunn's dismissal letter are
pertinent and read:
It was concluded that the initial, work stoppage
was unprotected as its stated reason was safety dis-
putes which arose during the term of the collective
bargaining agreement and thus, the Union's duty to
arbitrate and not to strike over the disputes contin-
GENERAL PORTLAND INC.
ued past the expiration of the contract . Goya Foods,
Inc., 238 NLRB 1465, Nabisco, Inc., 267 NLRB No.
196. Therefore, the Employer's suspension of the
original eight employees was not unlawful : Further,
since the Employer was privileged to refuse to re-
scind the lawful suspension of the original eight em-
ployees, its failure to consider rescission did not
constitute an unlawful failure to bargain . Further,
the Employer offered to discuss safety at ^ several
different times throughout the morning of July 9.
Hence, the Employer did not unlawfully refuse to
bargain with the Union over the safety disputes.
The Employer's suspension of the entire first shift
work force was not unlawful as the evidence did
not establish that this suspension was motivated by
a desire to retaliate against the employees for en-
gaging in protected activity or that the suspension
was inherently destructive of employee rights. In
this regard, while the Employer initially suspended
only eight employees for leaving their work stations
without relief or permission, it would have been
privileged to suspend everyone at that time as they
were not engaged in protected activity as indicated
above. Later, when it became clear that no discus-
sion of safety would take place and work would not
resume,, the Employer decided to send everyone
home and investigate the circumstances of the initial
stoppage . And, the Employer ultimately disciplined
or discharged only those employees who, like the
original eight, ' left their work stations without relief
or permission. Therefore, it could not be established
that the Employer's suspension of the whole work
force was motivated by a desire to retaliate against
the employees ' protected activity. Further, the
events of the morning of July 9, indicate that the
suspension of all employees reasonably would not
be perceived by the employees to mean that pro-
tected strike activities always will be followed by
adverse Employer action. Thus, it could not be
found that the Employer 's action was 'inherently
destructive ' of the employees' statutory rights. Fur-
thermore , although the Employer 's action may have
had some adverse effect on employee rights, the
Employer's legitimate business justification of inves-
tigating the initial unprotected action , in the absence
of anti-union motivation, warrants a conclusion that
the suspension of the entire work force was not un-
lawful.
Eight days later, on 15 November, Acting Regional
Director Jerome Avedon, in dismissing the instant
charge,22 similarly attached a two-page explanation (R.
Exh. 40). The final three paragraphs of Avedon's dismis-
sal letter read:
The Union was repeatedly informed by the Em-
ployer that its advance notice requirement was to
avoid subjecting its equipment to potential damage
by a sudden and unannounced work stoppage par-
22 Avedon dismissed Case 16-CA-11774 as well as Case 16-CA-
11785. The record does not contain a copy of the charge m Case 16-CA-
11774.
835
'titularly in view of the work stoppage that had oc-
curred on July 9. There was no evidence that the
Employer 's purpose in requiring an advance notice
commitment was to break the Union nor did the
Employer ever hire permanent replacements. Fur-
ther, the Employer offered evidence that much of
the plant had to be shut down to avoid damage as a
result of the July 9 walkout and it was not until
August 6 that the plant was finally back up to pro-
duction with the last kiln back on line.
Thus, it is concluded that no violation has oc-
curred as the Employer had a legitimate business
justification-advance - notice for safety purposes
and sufficient time to be able to secure contrac-
tors-for insistence on its demand, whether it be 30,
21 or 3 days , for advance notice of a strike as a con-
dition of reinstatement of its employees because the
Union refused to accept the lawful condition for re-
instatement imposed by the Employer.
In American Ship Building v NLRB, 380 U.S. 300
(1965), the Supreme Court concluded that the use
of a temporary layoff of employees solely as a
means to bring economic pressure to bear in sup-
port of the employer's bargaining position after im-
passe has been reached was not unlawful. The
Board has found that an Employer may lock out its
employees to avoid economic loss or business dis-
ruption where the Employer believed a strike was
imminent and the Union would not give assurance
of continued work . Building Contractors Association
of Rockford! Inc., 138 NLRB 1405 . In the instant
case,, the lockout was based on the Employer's le-
gitimate view that , the employees would engage in
further work stoppages or intermittent strike action
without advance notice to the Employer and was
strengthened by the Union's repeated refusal to
define in hours or days its "adequate ", notice assur-
ances.
Following the dismissals, Respondent apparently dis-
charged three employees who had been operating critical
equipment the morning of 9 July. Thus, on 10 January
1985 the Union, by its attorney, filed ' a charge in Case
16-CA-11985 alleging that on 4 December Respondent
had violated Section 8(a)(1) and '(3) of the Act by dis-
charging Spencer Hart, Richard Pilcher , and Timothy E.
Worthen (R. Exh. 7).
Pursuant to the 8 November memorandum of agree-
ment settling the strike/dispute (G.C. Exh. 17), the cases
of the three discharges were heard by Arbitrator Harold
H. Leeper on 20 December . At page 2 of his 24 Decem-
ber Opinion and Award affirming the discharges, Arbi-
trator Leeper wrote , "The three Grievants were opera-
tors of the three most critical and most expensive ma-
chines in the plant . Pilcher was the operator (burner) of
the number 1 kiln ; Worthen was the operator of the
number 3 kiln; and Hart was the operator of the Finish
Mill." (R. Exh. 9.)
The Union appealed the Region's 15 November dis-
missal of the instant case (as well as Case 16-CA-11774),
and on 22 February 1985 the General Counsel, through
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her Office of Appeals, wrote ^ Stephen B . Rubin, the
Union 's attorney , as follows:23
Dear Mr, Rubin:
Your appeal from the Regional Director 's refusal
to issue complaint in the above -captioned cases has
been fully considered.
The appeal- in Case No. 16-CA-11785 is sus-
tained and the appeal in Case No. 16 -CA-11774 is
denied . The Employer's conditioning of the return
of strikers after August 10 ; 1984, upon the Union's
agreement not to 'strike for 30, 21 or 3 days raised
Section 8(a)(1) and (3) issues warranting Board de-
termination based on record testimony developed
before an Administrative Law Judge , absent settle-
ment. However, the appeal is otherwise denied inns-
much` as there was insufficient evidence that the
Union '-had made an unconditional offer to return
the strikers prior to August 10, 1984.
Accordingly , the case is remanded to the Region-
al Director with instructions to issue an appropriate
Section 8(a)(1) and (3) complaint absent settlement.
All further inquiries should be addressed to the Re-
gionai Director.
Very truly yours,
Rosemary M. Collyer
General Counsel
By Al Mary M. Shanklin
Mary M. Shanklin, Director
Office of Appeals
Presumably a confidential explanation from Shanklin
was attached to the copy sent to the Region . We there-
fore are not favored with Shanklin 's theory except to the
extent counsel for the General Counsel incorporates and
articulates that theory in his brief.
To complete this sequence , I note that by letter dated
13 March 1985 the General Counsel 's Office of Appeals
wrote to Attorney Rubin as follows regarding the relat-
ed cases (R Exh. 8):
Dear Mr. Rubin:
Your motion for reconsideration in Case Nos. 16-
CA-11725 and 16-CA-11754 and your appeal in
Case No. 16-CA-11985 have been fully considered.
The appeal and motion are denied . Apart from
considerations as to whether the employees' initial
refusal to work on July 9 , 1984, might otherwise
have been ' considered concerted protected activity,
in the circumstances of these cases , the Employer's
tentative decision to terminate eight employees for
leaving their critical work sites after having been
told not to do so and the Employer's ' final decision
to terminate three of these eight (Pilcher, Hart and
Worthen) was not unlawful.
113 The 22 February 1985 letter was not made part of the record. After
the hearing closed , and at my request, Respondent supplied a copy of the
letter. I mark the copy as ALJ Exh. 1, receive it in evidence, and insert it
in the folder for the General Counsel 's Exhibits.
It was concluded that the eight , employees who
left critical job positions without permission- en-
,gaged in strike misconduct under Marshall Car
Wheel and Foundry Co., 107 NLRB 314, and there-
fore, their actions were removed from the protec-
tion of the Acts In this regard, -it is irrelevant that
supervisors took over operation of the critical ma-
chinery and therefore no actual damage was done;
it is sufficient that the eight aforementioned employ-
ees' actions could have led to extensive , damage to
the equipment. Nor is it significant that non-critical
workers were not told - to return to work, as the su-
pervisors took control of the operation of-the facili-
ty.
In light of the determination that any disciplinary
action taken by the Employer against those employ-
ees who left critical positions without permission
was not unlawful (and, noting the absence of any af-
firmative evidence that the Employer took unlawful
disciplinary , action against any employee in a non-
critical position),, as well - as the Union's failure to
raise any new , issue of law or fact in the motion for
reconsideration , or appeal, further proceedings were
deemed unwarranted.
Very truly yours,
Rosemary M. Collyer
General Counsel
By /s/ Mary M. Shanklin
Mary M . Shanklin, Director
Office of Appeals
- D. Analysis and Conclusions
Before treating the merits of the case, I first shall ad-
dress some peripheral matters. Although Respondent, as
earlier noted, stipulated that the Union is a labor , organi-
zation, it - expressly reserved its affirmative defense that
the Union is not the statutory representative of Respond-
ent's employees at the Fort Worth plant. This contention
relates to the fact that on 15 March 1984 the United
Cement, Lime, Gypsum and Allied - Workers Internation-
al Union, AFL-CIO, CLC, voted to merge into and
become a division of the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths , Forgers
and Helpers , AFL-CIO (R. Exh . 2 at= 119). Shortly
thereafter, apparently -on 1 April 1984, the emerger was
implemented. Respondent contends that certain "flawed
and inadequate" procedures resulted in a postmerger or-
ganization legally incompetent to act as the representa-
tive of the Fort-Worth employees (Br. 47). This allega-
tion becomes relevant only because the complaint, al-
leges, and 'evidence was offered, that the 'Union, as the
statutory representative of the bargaining unit, made an
unconditional offer on 10 August on behalf of the strik-
ing employees to return them to work.
Citing Knapp-Sherill Co., 263 NLRB 396 (1982), the
General Counsel argues that Respondent , is estopped
from contesting the Union 's statutory representative
status (1:32). The Union joins in that position , and fur-
ther argues that Respondent improperly seeks to place
the employees in a Catch-22 situation. Thus, on the one
GENERAL PORTLAND INC.
hand Respondent argues that the Union cannot speak for
the employees, yet on the other it contends that it was
justified in rejecting unconditional offers by individual
employees, or small groups of employees, unless "their"
Union signed a commitment to give an advance notice of
21 days. Respondent appears to argue that it is entitled
to the best of both worlds because it did not learn of the
alleged merger defects until 2 weeks before the instant
hearing. The Union contends that it .would be uncon-
scionable to allow Respondent to prevail on this issue
(Br. 11). In any event, argues the Union, the evidence
shows that groups of strikers, by their presence before
Smith, implicitly designated union representatives to
speak on their behalf as their, agent-in-fact. At the hear-
ing the parties stipulated that Respondent has never, in-
cluding up to the date of the hearing, withdrawn recog-
nition from the Union (3:505).
Although there is much force to the positions ad-
vanced by the -General Counsel and the Union, I need
not resolve the statutory representative question,for two
reasons. First, as previously noted, any offer to return
would have been an exercise in futility, and the law does
not require that citizens engage in acts of futility. The
strikers were therefore relieved of 'any need to offer
themselves back to' work, and an unconditional offer will
be deemed as of 10 August, concerning all strikers. Eagle
International, 221 NLRB 1291 (1975).
Second, I need not resolve this issue because I dismiss
the complaint on the merits. For this reason I need not
pass on the Union's 5 July 1985 motion to reopen the
record to receive an attached letter, dated 17 January
1984, relating to the merger issue.24
I find that the Union's assertion of safety as the basis
for confronting Plant Manager Smith the morning of 9
July was merely a cloak devised to conceal its true
motive--to engage in a series of confrontational tactics
designed to force Respondent to return to the bargaining
table and, perhaps, to dissuade ,Respondent from unilater-
ally implementing its last offer. Moreover, the Union was
not free to disregard the prior grievance procedure for
safety matters which allegedly arose, as here, during the
extended term of the prior contract, Nabisco, 267 NLRB
1236, 1237-1238 (1983); Goya Foods, 238,NLRB 1465
(1978).
Respondent contends that the strike was unprotected
regarding all the strikers, and not simply to the few who
were disciplined for abandoning their critical job duties
before they were relieved, because of Respondent 's rules
prohibiting employees from leaving -their duty stations
during working time without permission (Br. 63). How-
ever, such rules cannot restrict the proper exercise of
statutory rights. Respondent makes .no argument that all
64 employees from the first shift who engaged in the ini-
tial work stoppage in some way were aware of or rati-
fied the Union's planned tactics. Moreover, over 100
other employees were not at work' the morning of -9
July. They later joined the strike, or honored the; picket
line established at noon on 9 July, but they did not aban-
2Q Respondent argues against the motion to reopen by its opposition
dated 8 July 1985. 1 have forwarded the Union's motion and the Re-
spondent's opposition to the Records Branch in Washington, D.C.
837
don critical jobs the morning of 9 July.25 Regardless, in
my view this case turns on Respondent's right to lock
out the employees.
We now can turn to the merits of the case. On and
after 10 August Respondent refused to return the former
strikers to their jobs until the Union signed an agreement
commiting to giving an advance notice (initially 21 days
and then 3 days). By so refusing; Respondent locked out
all employees not already working. Pointing to the fact
that Respondent took back five strikebreakers without
requiring them to sign any commitment, the General
Counsel and the Union argue that an unlawfid motive
has been shown. The Union, in particular, contends that
Respondent sought to punish the strikers (Br. 21, 22).
The five strikebreakers returned to work during the
strike and before the lockout. Had Respondent' suggested
to employees during the lockout that Respondent would
return them to work if they canceled their membership
in Local' 68,26 then a strong argument could be made
that Respondent's real motivation was to destroy - the
,Union- .27 We do not have that here. Indeed, Plant Man-
ager Smith rejected an offer of substantial nature made
by employee William E. Bellamy on 10 August. Thus,
Respondent locked out everyone not already working in
its countereffort to put economic pressure on the Union
to sign an advance notice commitment. Respondent
acted within its -legal rights.
As for the length of the notice Respondent demanded,
it is clear that the Union recognized that a notice of
some duration=even if just 15 minutes---was necessary.
The debate between the parties was, and is, over what
length of time would be adequate. Respondent could
lawfuly demand a specific time frame in view of the ap-
parent difference of opinion between it and the Union
concerning what would constitute an adequate time to
effect an orderly transition28 at the beginning of a strike.
Respondent wanted an adequate time assurance be-
cause (1) in Smith's view Union Representative Balliet
had reneged on his 15 May promise to provide sufficient
notice for an orderly shutdown, (2) on 9 Jul;yUnion
Representative Hammond had expressly stated that work
stoppages would be the way that business would be con-
ducted in the future since there was no contract;29 and
(3) in July Respondent experienced serious problems in
securing qualified employees from outside contractors.
An employer must reinstate 'economic strikers on their
unconditional offer to return to work unless he is able to
show that his refusal to do so was due to "legitimate and
substantial business justifications." NLRB v Fleetwood
25 A strike to protest a nondiscriminatory discharge is itself protected.
Pepsi-Cola Bottling Co., 186 NLRB- 477, 478 (1970), enfd. 449 F.2d 824
(5th Cit. 1971 ). Of course, such a strike may not be conducted in an un-
lawful manner or it will lose its protection., Waco, Inc.., 273 NLRB 746
(1984).
26 Every bargaining unit employee save one was a member of Local
68 (2:264,4-855, Johnson). '
27 American Ship Building Co. v. NLRB, 380 U.S. 300 (1965); O 'Daniel
Oldsmobile, 179 NLRB 398 (1969).
28 Respondent is not required to shut down its plant, but may choose
to operate it.
29 Union Representative Balliet's 'offer of 15 or 30 days of work with
no assurance of what would occur on the 16th and 31st days simply rem-
forced Hammond's threat of future "quickie" strikes.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trailer Co., 389 U.S. 375 (1967); Lindy's Food Center, 232
NLRB 1001, 1008 (1977).
At the conclusion of an economic strike, an employer
may have reasonable cause to fear that the employees
will abruptly-go on strike again as part of a series of
"quickie" strikes. In that situation, an employer may law-
fully lock out its employees until it receives assurance
that there will be no future work stoppage without ade-
quate notice to the employer. Tidewater Express Line, 142
NLRB 1111 (1963) (return conditioned on advance
notice of 48 hours before any future strike); Building
Contractor's Assn. of Rockford, 138 NLRB 1405 (1962)
(return conditioned on advance notice of 30 days before
any future strike); and International Shoe Co., 93 NLRB
907 (1951) (return conditioned on a no-strike agreement).
Rather than closing down when it locked out the
former strikers, Respondent chose to operate with tem-
porary replacements.30 It is not a per se violation of Sec-
tion .8(a)(3) and (1) of the Act for an employer to lock
out his employees and to continue operating with tempo-
rary replacements. Pankratz Forest Industries, 269 NLRB
33,, 38 (1984). Such a lockout is unlawful, however, if it
is motivated by antiunion considerations. Pankratz at 38.
"The purpose, .or motive, behind the lockout is therefore
the, critical factor in determining whether the lockout
violates the Act." Morris, I The Developing Labor Law,
217-218 (1983) (DLL).31
On 9 ,August Respondent reduced its time condition to
21 days. Thus, when the picketing ceased the morning of
10 August and the former strikers began offering them-
selves back to work unconditionally,32 the existing con-
dition for reinstatement was agreement by the Union to
give an advance written notice of 21 days before engag-
ing in another work stoppage.
On 10 August Smith knew that in mid-May, in antici-
pation of a strike, he had made all the necessary arrange-
ments to effect a transition from unit employees to staff-
ing-the plant with strike replacements, and that this had
been accomplished in a period of 3 days (4:768, 778-779,
793). Yet on 10 August Smith ,conditioned the return of
strikers on union agreement to a notice of 21 days. Does
this discrepancy reveal a motive to punish the strikers?
30 The temporary replacements included supervisors, clerks, salaried
personnel from other plants, summer students regularly employed, the
five employees who abandoned the strike and crossed the picket line, and
employees of independent contractors hired on and after 9 July
Former ' Plant Manager Smith testified that Respondent elected to
remain in operation rather than to shut down (4:676, 677, 774, 775, 795).
Respondent chose to operate in order (1) that it could manufacture Class
H oil well cement so that it would not lose that business to its several
competitors (4:677, 775), (2) to avoid the costly damage known as spall-
ing which accrues to refractory and bricklinmg the kilns whenever a kiln
is shut down and restarted.
31 A discussion of whether hiring permanent replacements , or using
outsiders as temporary replacements, can be a violation of the Act by
being "inherently destructive" of important employee rights appears at I
DLL 204-205, 219-220, 633, and 2 DLL 1053-1056. For further back-
ground discussion on the use of temporary replacements , including their
use for a "prolonged" period, see two memorandums of the General
Counsel's Division of Advice: Weissman Industries, 116 LRRM 1511
(1984 Datz), and Georgia-Pacific, Southern Division , 104 LRRM 1167
(1980, Datz).
33 An earlier offer by the Union was not unconditional Moreover, the
picketing did not cease-until 10 August.
Smith credibly testified that in the days on and after 9
July he had much difficulty in obtaining an adequate
staffing of replacements from -the outside contractors.
Initially there was some difficulty in securing the, num-
bers needed, but the principal problem was that the qual-
ity level was low (4:817). On the 9 August recommenda-
tion of his, staff, Smith reduced- the time from 30 days to
21 days as the advance notice Respondent would need to
assure the continued operation of the plant (4:691-692,
774, 824).
I find that Respondent did not impose the 21-day con-
dition on ,10 August to retaliate against the, strikers.
Smith, I find, simply desired to give himself plenty of
breathing room in the event the strikers accepted the 21-
day condition and returned. He was not thinking, I find,
in terms of what notice he could get by with at an abso-
lute minimum. I fmd that Smith also considered his July
problems in trying to obtain adequate staffing. With that
less than satisfactory experience in mind, Smith, acting
with an abundance of caution, set the notice time as 3
weeks rather than the minimum time needed of 3 days.
As already noted, I have not overlooked Smith's testi-
mony that the kilns could be shut down in 3 days,33 or
his testimony that-in anticipation of a strike in mid-May
Respondent shut down-one of the three kilns (4:768-769),
arranged with outside contractors to provide .assistance
(4:778-779, 817), included operation of critical equipment
as part of the overall training of 'some supervisors-(4:821-
822,131, 832-834), and that all this was accomplished in
3 to 4 days (4:778, 779). Nevertheless, I find that Smith
acted from an abundance of caution on 10 August and
not from an unlawful motive. -
The next question which arises is why Smith waited
another 42 days (from 10 August to 21 September)
before reducing the time condition to 3 days. Smith was
not directly asked this specific question at -the hearing,
but ,his position can be gleaned from his explanation of
his basis for ' reducing" the time to 3 days on 21 Septem-
ber. He testified that by 21- September,' Respondent had
established ties with the outside contractors so that there
was trained manpower available, and, as GP had experi-
enced strikes-at some of its other plants in September, it
also had an abundant supply of trained salaried personnel
available (4:715-716, 827-828).
Smith testified that he reached an adequate staffing
level about mid-August (4:817): This meant, he ex-
plained, that he then had enough skilled help from the
contractors to operate the plant (4:820). Moreover, Smith
made clear that the 3 days specified on 21 September
was deemed enough time to make the transition to oper-
ation of the plant; not simply to, shut it down, but to
keep it runing (4:828). I fmd that Smith,, knew in mid-
August that he could make the transition in 3 -days. Even
so, I fmd that Smith's delay from mid-August to 21 Sep-
33 Although Smith testified that after 16 hours a kiln did not have to
be attended constantly (4766, 785), he also clearly testified that it takes 3
days to shut down a kiln completely, such as in preparation for major
maintenance or mothballing (4:768-769, 778, 785-786, 793). Although Re-
spondent finally settled with the Union for 36 hours' notice, Smith credi-
bly testified that he was not consulted as to the 36 hours and, more sig-
nificantly, that the 36-hour figure is unrelated to the production process
(4:826-827).
GENERAL PORTLAND INC. 839
tember, a lengthy period to be sure, was not born of any
desire to retaliate against the strikers.
I note that there is no evidence or allegation that
Smith uttered any remark indicating antiunion animus.34
I further observe that at no point during this timeframe
did the Union attempt to negotiate with Respondent for
a shorter time condition. Indeed, the period of mid-
August (following Respondent's 14 August letter to all
employees) until 21 September is practically a complete
blank insofar as the record discloses. I therefore can only
assume that during this period of some 5.5 weeks Smith,
content with the security of a supply of adequate strike
replacements, simply waited for new developments. I am
unable to discern any unlawful motive in these circum-
stances.
The General Counsel focuses on the "16 to 24 hours"
Respondent allegedly would need to shut down the kilns
safely,35 argues that anything beyond that is without
-business justification (Br. 14), and contends that ordinary
business interruptions or loss normally incident to a
strike are- circumstances insufficient to justify invoking a
lockout (Br. 14-15). This argument is based on the false
premise that an employer in Respondent's industry (oper-
ating expensive equipment under extremely dangerous
conditions in a continuous manufacturing process) has a
right only to the notice required to shut down safely,
without regard to the damage to equipment a shutdown
and restart causes, the loss of product incident thereto,
or the loss of a substantial portion of the business if the
work is not continued by strike replacements.36 Such is
not the law, and I find that the lockout itself was lawful
and that Respondent had the right to continue operation
of its plant during the lockout by using temporary re-
placements.
Taking the final step, the Union argues that the prior
condition imposed by Respondent violated the Act be-
cause it is "inherently destructive" of employees rights
(Br. 20).37 To the extent this' position argues a per se ap-
proach, it clearly is without support in the controlling
cases since American Ship Building Co. v. NLRB, -380
U.S. 300 (1965).
Aside from the Union's possible per se contention
about "`inherently destructive,"' neither the Union nor the
General Counsel expressly argues that the facts call for a
conclusion that the,21-day time condition was an "inher-
ently destructive" time condition. By implication the
Union suggests that such is the case, but it does not ana-
lyze the question of whether such a prolonged period is
inherently destructive.
When the picketing ceased the morning of '10 August
and the former strikers began offering themselves back
to work, Respondent locked them out pending the
Union's agreement to give an advance notice of 21 days.
GP had been operating with temporary replacements,for
a full month. As of 10 August Respondent had all three
kilns in operation (R. Exh. 32) and some 140 temporary
replacements employed (R. Exh. 34). If we assess the
lawfulness of Respondent's lockout as of 10 August, is it
a prohibited per se approach (since that is the first day of
the lockout) even though we analyze Respondent's cur-
rent situation in light of the nearly 5 weeks leading up to
10 August? Stated differently, must the examination
begin by looking forward, 'with the "prolonged" use
being measured by the length of time subsequent to 10
August? If the latter, should the 5 weeks preceding 10
August be considered in an overall analysis?
If the starting date for ' any analysis of "inherently de-
structive" is 10 August, then we count 42 days before
Respondent reduced the time condition to 3 days on 21
September.38 Although there is a chart in evidence (R.
Exh. 34) showing the numbers of the temporary replace-
ments and their sources (whether outside contractors,
students, new hires, salaried staff, and the like), there is
practically no other evidence covering; the portion of
that period starting about mid-August.39
However, Smith did testify that by mid-August he
considered his temporary replacements adequate both as
to numbers and quality (4:816-817).40 As of 15 August
Respondent had about 140 temporary replacements (R.
Exh. 34). As the students (a maximum of 22) returned to
school beginning in early August, respondent increased
the number of its outside contractor employees. Total re-
placements increased to 149 for the week beginning 3
September, reached the peak number of 176 for the week
beginning 10 September, and thereafter steadily declined
to 141 the week beginning 12 November just before Re-
spondent began phasing back in the former strikers. The
record does not disclose why there was a peak the week
beginning 10 September.
Was the peak to meet a special order for some custom-
er, or was that Respondent's desired level which it was
unable to maintain? The_ latter explanation is unlikely, for
as we have seen, and will mention again shortly, Re-
spondent had several sources of ample replacements by
September for the forseeable future. The evidence is in-
conclusive, as Respondent's regular complement of unit
employees for its three shifts approximated 173. Al-
though the record does not expressly disclose the correct
84 As previously mentioned, the General Counsel does not allege that
Smith's prepared statements first delivered on 10 August, telling the strik-
ers that their return to work offers were part of a "concerted union activ-
ity," violated Sec. 8(a)(1) of the Act
ss Based on Smith's credited testimony , I have found that it takes 3
days to shut down a kiln completely. Counsel for the General Counsel
may have reference to Smith's testimony that after 16 hours the kiln does
not require constant attention by an experienced burner (4:765-766, 784-
786,825-826).
36 The Class H oil well cement , manufactured by Respondent at its
Fort worth plant only, amounts to about one-third of the products manu-
factured there (3:614; 4:677, 775).
37 As to the Supreme Court's "inherently destructive" phrase, see
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
sa Based on all the evidence, I find that the period of 3 days advance
notice is the time Respondent normally would need to make the transi-
tion from unit employees to a safe level of strike replacements possessing
the skills minimally necessary to operate the plant.
sa As stated earlier, small groups of employees presented themselves
for work in the first few days on and after 10 August, and Respondent's
14 August letter (G.C. Exh. 13) to all employees , including the former
strikers, is the last correspondence until Smith reduced the time condition
by his letter of 21 September (G.C. Exh. 14).
40 If a finding was necessary , I would find that Respondent was as
adequately staffed on 10 August as it was on 15 August Respondent's
own manpower , chart so demonstrates (R. Exh . 34). Another of its
records shows that as of 9 August all three kilns were in operation (R.
Exh. 32).
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
number,41 I reach the number of 173 from the list of 147
employees (G.C. Exh. 18) identified by Odis Johnson,
Local ,68's vice president, as those entitled to strike bene-
fits, plus the 21 names on another list (C.P. Exh. 5) who,
Johnson testified , were not eligible for strike benefits be-
cause they apparently were receiving medical insurance
payments (4:853-854), plus the 5 strikebreakers.
As previously mentioned , Respondent reduced the
time condition to 3 days on 21 September because by
then GP, having experienced strikes at some of its other
plants in September, had salaried personnel trained to op-
erate the equipment , and there was an abundance of
qualified help available from outside contractors (4:715-
7-16, 827-828).
What can be made of the delay from 15 August (when
Respondent admittedly was adequately staffed) to 21
September (when the available sources of replacements
reached the point of abundance)? Can it be said that at
some point during that timeframe Respondent 's failure to
reduce the time condition to 3 days was conduct "inher-
ently destructive" of important employee rights and,
therefore, as a matter of law, a violation of Section
8(a)(3) and (1) of the Act? -
Did `a violation accrue on 15 August, or 3 days later,
or are these dates too soon? Should the week ending
Sunday, 2 September, be the decisive date? That would
allow Respondent 2.5 weeks of adequate staffing to con-
template what to do . During that time, and from mid-
May, Respondent knew that with a supply of adequate
replacements available , it.could replace unit employees in
3 days in the event of a strike . Respondent knew that it
could do this in 3 days based on its mid-May experience.
That 'obviously -is how Smith settled on 3 days in his
letter of 21 September.
Is this inquiry academic? After all, when Respondent
did reduce the time condition to 3 days, the Union
simply reiterated its same position that it would give ade-
quate notice. I find that Respondent was justified in con-
sidering the Union 's position, unexpressed in hours or
days, as completely insufficient in light of the events of 9
July and the statements of Union Representative Ham-
mond, on 9 July, and the August statements of Union
Representative Balliet concerning no guarantee after the
15th or 31st days of work.
Thus, it is clear that had Smith framed the condition
on 9 and 10 August as an advance notice of 3 days, the
Union would not have accepted it. These circumstances
hardly seem appropriate in which to find Respondent's
conduct as "inherently destructive" of important employ-
ee rights.
As already noted, the complaint does not allege that
Smith's first and second prepared statements are violative
of the Act. Nor is the position advanced that the state-
ments reflect an unlawful motive by unnecessarily assert-
ing, even stressing, that the return to work offers were
union and concerted activities. The one-sentence third
statement, and the letter of 14 August from Smith to
each employee , do not mention , much less emphasize,
41 There were 65 unit employees on the first shift (3 611). Of those, 15
to 20 were involved in the continuous process of Respondent 's operation
(4801).
union and concerted activities . Those two communica-
tions, one short and the other long, properly state the
need of a commitment from the Unions . It could be
argued that Respondent should have so limited all its
messages to the former strikers as they offered them-
selves back to work. After all, the reason Respondent
locked out the employees was the lack of a commitment
from the Unions. Respondent did not lock out the em-
ployees because they had engaged in, or were engaging
in, union or concerted activities as such . Yet the latter is,
in effect, what Respondent told the employees. In fact,
Respondent was locking out all employees not already at
work by the end of the strike because it feared that they
might follow the call of the unions to embark on a
"quickie" strike in the future . Respondent wanted a com-
mitment from the unions to protect itself. But it failed to
limit its statements to that simple need.
Neither is it alleged that the 21-day advance notice
condition , imposed at a time (9-10 August) when Re-
spondent knew that it was adequately staffed , joined (as
with the separate elements of TNT) with the first-two
statements of Smith to the former strikers so that the
combined impact was "inherently destructive" of impor-
tant employee rights.
I have found that Respondent was not unlawfully mo-
tivated in imposing the condition of an advance notice of
21 days or, later, 3 days, before the employees participat-
ed in another work stoppage. I have further found the
circumstances here , including the Union's unwillingness
at any time to accept a time condition of 3 days, inappro-
priate in which to make any fmding concerning whether
Respondent's time condition of 21 days, even though
outstanding for a lengthy period of 37 days (15 August
to 21 September) after Respondent admitedly had ade-
quate staffing,42 was conduct "inherently destructive" of
important employee rights. Accordingly, I shall dismiss
the complaint.43
In conclusion, I shall dismiss the complaint because
the General Counsel has failed to establish that Respond-
ent was unlawfully motivated by its actions, or that its
conduct was inherently destructive of employees ' statu-
tory rights.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to return former economic strikers to
work between 10 August and 8 November 1984, and
conditioning their return to work on the Union's signing
a commitment to give an advance notice of a specific
period of time before commencing any, future work stop-
4E On 15 August Respondent knew that it could have made the transi-
tion from unit employees to strike replacements in 3 days.
48 Complaint par 14(a) was amended at the hearing to allege that on
or about 19 July (rather than 10 August) Respondent unposed a notice
condition of 30 days (3.477, 479) As the 'date of 19 July precedes any
unconditional offers to return to work , the allegation regarding a 30-day
notice condition would be dismissed in any event . Finally, it was at the
16 July (not 19 July) Sandpiper Motel meeting when Respondent advised
the Union of the 30-day notice condition.
GENERAL PORTLAND INC.
pages, Respondent did not violate Section 8(a)(3) and (1)
of the Act because there is insufficient evidence showing
that (a) Respondent took its actions to discourage union
membership or activities , or ' (b) Respondent 's action is
inherently destructive of important employee rights.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed44
ORDER
The complaint is dismissed.
841
44 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 m Sec ., 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.