Georgia-Pacific Corp.

National Labor Relations Board - Board Decisions

Aug 8, 1986

281 N.L.R.B. 1 (N.L.R.B. 1986)

GEORGIA-PACIFIC CORP.
Georgia-Pacific Corporation, Crossett Division and
Southern Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of
America AFL-CIO. Case 26-CA-8008
8 August 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 23 December 1980 Administrative Law
Judge Frank H. Itkin issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, the Union filed cross-exceptions and
a supporting brief, and the Respondent filed an an-
swering brief to the General Counsel' s exceptions.
In addition, the Union' s parent organization, the
United Brotherhood of Carpenters, submitted an
amicus curiae brief which we accept.'
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,2 and
conclusions and to adopt the recommended Order.
The judge held, and we agree, that the Respond-
ent, which continued to operate its Louisville, Mis-
sissippi plywood plant with temporary nonunit re-
placements during an admittedly lawful 6-week
lockout of its unit employees , did not violate Sec-
tion 8(a)(1) and (3) of the Act because it had "sub-
stantial and legitimate business reasons [for using
replacements] and any resulting tendency to dis-
courage Union membership was comparatively
slight or remote."
The Respondent, a division of Georgia-Pacific
Corporation, operates a complex of facilities in
Louisville where it is engaged in the manufacture
of wood and wood-related products. Such facilities
include, inter alia, a plywood plant, a chemical
plant, and a particle board plant. The Respondent
and the Union, which has been the certified repre-
sentative of the production and maintenance em-
ployees at that plywood plant since 1966, entered
into a series of 3-year collective-bargaining agree-
' Their request of the Union and the United Brotherhood of Carpen-
ters for oral argument is denied as the record, exceptions, cross-excep-
tions , and briefs adequately present the issues and the positions of the
parties
z The Union has excepted to some of the judge 's credibility findings.
The Board's established policy is not to overrule an administrative 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 examined the record and find no basis for reversing
the findings.
1
ments for those employees.3 Their .1976-1979
agreement , which had an expiration date of 19 Jan-
uary 1979, provides (art. XXIV) that if no agree-
ment is reached after that date:
[E]ither party may give written notice to the
other party of intent to terminate the agree-
ment in no less than ten days. . . . During
[that 10-day] period , attempts to reach an
agreement shall be continued and there shall
be no strikes or lockouts . If the parties have
failed to resolve their differences when the
... specified time has elapsed , all obligations
under this agreement are automatically can-
celled.
The Union and the Respondent, which were re-
spectively represented by Executive Secretary-
Treasurer Floyd Doolittle and Industrial Relations
Manager James Joel O'Briant, commenced negotia-
tions in December 1978 for a new agreement and
met about nine bargaining sessions until the begin-
ning of the following March . During those ses-
sions , the Respondent took the position that the
new agreement should again be for a 3-year period
and on 30 January 1979 it presented a specific pro-
posal to that effect.
However , the Union proposed a 10-1/2-month
agreement to run from 19 January to 1 December
1979 which coincided with the expiration date of
its Monticello agreement as well as the IWA agree-
ments .4 Doolittle explained that the purpose of the
common expiration date was to enable the Union
and IWA to strike all the plants simultaneously and
thus bring enormous pressure upon Georgia -Pacif-
ic. In this connection , Doolittle informed O'Briant
that he and Charles Campbell, an IWA official, had
agreed on this strategy . Although Doolittle told
O'Briant that the employees at the Louisville plant
would continue to work until December 1979 even
without a contract , Doolittle refused to assure
O'Briant that the employees would not strike
before then . When O'Briant also asked Doolittle
whether there would be a strike in December, he
stated that he "did not know" but if the Union did
strike it would be "the most logical time."
In a letter dated 13 February the Respondent
"renewed its complete offer for a new [3 -year] con-
tract . . . along with [an] offer of retroactive
wages back to January 19 , 1979." The Respondent
3 The Union also represented employees at the Respondent 's plywood
plants in Monticello, Georgia , and Fordyce, Arkansas. Another labor or-
ganization , the International Woodworkers of America (IWA), represent-
ed the Georgia-Pacific plants in Mississippi, Arkansas, Virginia, and
South Carolina With the exception of the Louisville and Fordyce plants,
all the remaining plants were covered by agreements expiring about 30
November 1979
4 The Union similarly attempted to change the termination date of its
Fordyce agreement from 27 June to 30 November 1979
281-NLRB No. 2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that it could not continue this offer indefi-
nitely in view of the "uncertainty of not having a
new agreement." The Respondent therefore gave
notice of its intent to terminate the 1976-1979
agreement on 26 February 1979.
The parties met on 26 February in a vain attempt
to resolve their differences. The Respondent ex-
tended the 1976-1978 agreement to 1 March. On 2
March O'Briant met with the Union's president
Frank Beasley and its bargaining committee and in-
formed them that the Respondent would lock out
the Louisville plywood plant employees that night.
O'Briant explained that it was "hard . . . to oprate
[sic] with uncertainty" as a result of which the Re-
spondent was unable to (1) make firm commitments
to its customers, (2) plan capital improvements, and
(3) enter into long-term timber contracts. O'Briant
also stated that it was "not willing to allow [the
Union] to pick a time [to strike] that will hurt [the
Respondent] most."
The Respondent locked out the approximately
265 employees in the unit. It continued to operate
the Louisville plywood plant at a reduced level of
production with the office and supervisory person-
nel at that plant and with 71 employees from its
other plants.
O'Briant's explanation why the Respondent con-
tinued to run the plant with replacements was
credited by the judge. He pointed out that there
was an interdependence between the plywood
plant and the other plants in the Louisville com-
plex; that the Respondent's stud mill operation in
Taylorsville, Mississippi, relied on the Louisville
plywood plant for certain supplies; that the Re-
spondent had to honor its commitments to deliver
materials to customers; that the transfer of ply-
wood orders to its other plywood plants would in-
clude additional freight costs, and that, in any
event, its other plants were already operating at
full capacity and would not be able to handle all of
Louisville's orders.
During the lockout and the operation of the
Louisville plywood plant with nonunit replace-
ments, the Respondent, which stated that its earlier
offer was "still on the table," continued to negoti-
ate with the Union. On 13 April 1979 they entered
into a new 3-year agreement which provided
higher pay rates. The Respondent thereupon ended
the lockout and the unit employees returned to
their jobs.
In Harter Equipment, 280 NLRB 597 (1986), the
Board held that, absent specific proof of antiunion
motivation, an employer does not violate Section
8(a)(3) and (1) of the Act by hiring temporary re-
placements to engage in business operations during
a lawful lockout. The Board also found that using
temporary employees during such a lockout in
order to bring economic pressure in support of le-
gitimate bargaining demands is "(1) a measure rea-
sonably adapted to the achievement of a legitimate
employer interest and (2) has only a comparatively
slight adverse effect on protected employee
rights." Harter Equipment, slip op . p. 10, supra at
600.
There is no evidence that the Respondent, which
had previously entered into a series of 3-year
agreements with the Union , was motivated by spe-
cific union animus or engaged in bad-faith bargain-
ing. Indeed , the negotiations resulted in a new
agreement containing higher wage rates. The
record also shows that the Union refused to make
an unequivocal no-strike commitment and that as a
consequence the Respondent 's demand for a 3-year
agreement was designed to remove any uncertainty
and enable it to continue its business operations
without interruption and fulfill the obligations to its
customers. Accordingly , we find that the Respond-
ent's use of replacements during the lawful lockout
for the purpose of bringing economic pressure to
bear in support of what was clearly a legitimate
bargaining demand was "a measure reasonably
adapted to the achievement of a legitimate employ-
er interest" and does not violate Section 8(a)(3) and
(1) of the Act.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Beatrice C. Hubbard, Esq., for the General Counsel.
William M. Earnest and Charles K. Howard, Esqs., for
Respondent Employer.
Floyd Doolittle and Marvin Covington, Esqs., for Charging
Party Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge An
unfair labor practice charge was filed in this case on
August 28 and a complaint issued on December 10, 1979.
A hearing was conducted in Louisville, Mississippi, on
June 23 and 24, 1980. The General Counsel alleges that
Respondent Employer, during the course of a 6-week
lockout of the production and maintenance employees at
its Louisville plywood plant, "utilized individuals who
were not employed in the unit . . . to perform . . . work
which prior to the lockout had been assigned to and per-
formed by employees employed in the unit," in violation
of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act. The General Counsel, in her posthearing brief,
asserts: "The only issue in this case is whether Respond-
ent violated Section 8(a)(1) and (3) of the Act by con-
tinuing production with non-unit employees and tempo-
GEORGIA-PACIFIC CORP.
rary replacement employees during a lockout ." Respond-
ent denies that it has violated the Act as alleged.
On the entire record in this proceeding , including my
observation of the demeanor of the witnesses , and after
due consideration of the briefs of all counsel , I make the
following
FINDINGS OF FACT
Respondent Employer , a division of Georgia-Pacific
Corporation, operates a complex of facilities at Louis-
ville, Mississippi, where it is engaged in the manufacture
of wood and wood-related products. Respondent's Lou-
isville facilities include a plywood plant, a particle board
plant, a chemical plant, and forestry and wood procure-
ment operations . The Charging Party Union was certi-
fied as bargaining agent for Respondent 's production and
maintenance employees at the Louisville plywood plant
during late 1966. The parties signed a 3-year term collec-
tive-bargaining agreement in 1967 and , thereafter, a
series of successive 3-year term agreements . The current
agreement was entered into on April 13, 1979. It is un-
disputed that Respondent . is an employer engaged in
commerce as alleged and that the Charging Party is a
labor organization as alleged . The evidence pertaining to
the 6-week lockout, which commenced on March 2,
1979, and the execution by the parties of their current
collective-bargaining agreement on April 13, 1979, is
summarized below.
The prior 3-year collective-bargaining agreement be-
tween the parties (1976-1979) contained an expiration
date of January 19, 1979. (See G.C. Exh. 2.) The agree-
ment also provided:
At any time after the expiration date if no agree-
ment on the question at issue has been reached,
either party may give written notice to the other
party of intent to terminate the agreement in not
less than ten days . All the provisions of the agree-
ment shall remain in full force and effect until the
specified time has elapsed . During the - period, at-
tempts to reach an agreement shall be continued
and there shall be no strikes or lockouts.
If the parties have failed to resolve their differ-
ences when the above specified time has elapsed, all
obligations under this agreement are automatically
cancelled.
James Joel O 'Briant, industrial relations manager for
Respondent , testified that negotiations for the current
1979-1982 contract (G.C. Exh. 3) "started in December
1978" and there were a total of some nine bargaining ses-
sions "prior to the lockout" which commenced on
March 2 , 1979. O'Briant testified that during these nego-
tiations, the Charging Party union
made a very unusual proposal , one that I had not in
the history of my negotiations received . They [the
Union] wanted a contract for just ten and a half
months, to run from January 19 until December 1,
1979.
This proposal , as O'Briant explained , would cause the
Charging Party Union's Louisville contract to expire
3
about the same date when Respondent 's other contracts
with the Charging Party Union and the International
Woodworkers of America would expire.
Thus, as O'Briant further testified:
I [O'Briant] had been informed by Mr. Doolittle
[Charging Party Union's representative] that he and
Mr. Charles Campbell, who is his counterpart with
the International Woodworkers of America, had
gotten together and had reached , as he referred to
it, . . . a pact in which they agreed to try to put all
their plants together in December of 1979, which
would have involved a considerable number of our
production facilities for plywood. . . . [They] asked
that we have all the contracts expire on December
1 . . . or November 30.
O'Briant added:
They [Charging Party and the International Wood-
workers] already had contracts to expire on that
day, and Mr. Doolittle was saying to me that he
was going to add to that list Louisville and For-
dyce, so it became a very unusual circumstance in
that we were faced with having all of our plywood
facilities in a position that, as Mr . Doolittle earlier
testified, he could strike us at one time and bring
enormous pressure upon Georgia-Pacific.
The Charging Party , at the time, represented the em-
ployees in Respondent's plywood plants in Louisville,
Mississippi; Monticello , Georgia ; and Fordyce , Arkansas.
The Woodworkers Union represented the employees in
Respondent's plants in Emporia , Virginia; Russellville,
South Carolina ; Gloster, Mississippi ; and Crossett, Ar-
kansas . The collective-bargaining agreements at Emporia,
Monticello, Russellville, Gloster, and Crossett were to
expire about November 30, 1979.1 And, as O'Briant ac-
knowledged, "we did not feel that we would wait and
let him [Doolittle] pick his time to put that pressure on
us."
O'Briant noted that the Charging Party "continued to
hold on the position of a common expiration date"
during their bargaining sessions. As a consequence, man-
agement locked out the unit employees commencing
March 2 , 1979, for a 6-week period . O'Briant cited as
"reasons" for the lockout: "we were unable to reach
agreement with the Union"; "not being able to make
firm commitments to our customers, not knowing wheth-
er the plant would be running"; "not knowing how to
handle timber contracts" with respect to "when the
timber will be removed"; "not knowing if we were or
could be operating"; and:
We didn 't know what the Union was going to do.
We couldn 't get them to sign a contract, and we
I The contract between Respondent and the Charging Party at For-
dyce was to expire on June 27, 1979. The Charging Party similarly at-
tempted to realign the contract termination date at Fordyce to about No-
vember 30, 1979. Thus, the Charging Party only sought a 5-month con-
tract at Fordyce to replace the existing 3-year agreement with Respond-
ent.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
didn 't know if they were going to strike . . . we
had no assurances that the plant would be running.2
Further , O'Briant recalled that Union Representative
Doolittle had informed him "that the employees would
continue working without a contract until December
1979,"
but he [Doolittle] also refused to give assurance that
they would not strike. . . . I asked him specifically
across the table.... "Will you give us notice if
you decided to strike?" he said , "I can 't control my
membership."
O'Briant was also asked by counsel for the General
Counsel:
Q. the employees in the plant had been tell-
ing the supervisors that they were going to work
without a contract until December 1979?
O'Briant responded, in part, that "they [the employees]
would say . . . we're going to just continue to work
until we get you where we can strike all of your plants
at one time. And so, in so many words, they said yes,
they were probably going to work until December."
O'Briant explained that during the 6-week lockout, Re-
spondent continued to operate its Louisville plywood
plant by "moving some salaried people and existing em-
ployees temporarily into Louisville to run the mill." The
Employer "didn't hire anyone." Some of these employ-
ees came "from other locations within the Crossett Divi-
sion." There were then some 265 employees in the unit
represented by the Charging Party. Respondent, during
the lockout, kept the plywood plant running at a reduced
level of production with "approximately 71 employees
that came in from other locations" and with "existing"
Louisville office and supervisory personnel. The parties
continued to negotiate during the lockout and, as noted,
reached agreement on April 13, 1979.3 The new 1979-
1982 agreement, as O'Briant observed, provides "better
pay rates" for the unit employees and, inter alia, contin-
ues checkoff and recognition as before. None of the unit
employees "lost their jobs" as a result of the lockout;
they all returned to "their same jobs"; and they incurred
no loss of pay "as a result of returning."4
As stated above, Respondent's Louisville complex in-
cludes a plywood plant, a particle board plant, and a
chemical plant. These three facilities are proximately lo-
cated and are connected by steamlines which run from
the complex's only boiler located in the plywood plant.
As Bill Purifoy (manager of the Louisville chemical
2 O'Briant recalled that previously, on February 13, 1979, the Employ-
er notified the Union of its "intent to terminate" the 1976-1979 agree-
ment as of February 26, 1979 See G C Exh 4 The parties , however,
met on February 26, at which time the Employer extended the termina-
tion date to about March 1, 1979
3 O'Briant recalled that during the lockout, about March 14, 1979, he
apprised the Union's representatives that, in effect, "the Employer's offer
before the lockout was still on the table."
4 O'Bnant acknowledged that production was down at the plywood
plant some 60 percent during the lockout and that the Employer incurred
additional expenses in moving nonumt personnel into the area and in
making overtime payments to personnel working during the lockout
Also cf, R Exh I
plant) testified, "We purchase the steam from the ply-
wood plant" and "it comes by way of a pipeline to our
plant." The chemical plant cannot operate without this
steam . The chemical plant , in turn , processes the glues
(resins) which are utilized in significant part in the manu-
facture of both the plywood and particle board products.
Further, as Gerald Weaver (manager of the particle
board plant) testified, the particleboard facility also
cannot operate without the steam from the plywood
plant boiler-"if the steam goes off, we go down."
Moreover, the interdependence of these proximately lo-
cated operations is further illustrated in the testimony of
Company Representative O'Briant, as follows:
These contractors . . . bring the logs into the [ply-
wood] plant .... The bark is removed . . . [and]
goes to the fuel house to be used as fuel for the
boilers.... After the bark is removed . . . sheets
of veneer are unwound from the logs ... for fur-
ther processing [into plywood sheets].. . . The
core or inside of the logs ... goes out to be further
banded and (made] ready for shipment to our Tay-
lorsville, Mississippi, stud operation.
Company Representative Don Foster explained that this
residue bark and, to some lesser extent, the residue saw-
dust from the particle board operation are "the fuel nor-
mally used to operate the boiler." Use of natural gas or
the purchasing of bark are unsatisfactory alternative fuel
sources because of cost and availability considerations.5
In addition, as O'Briant testified:
We needed to run the plant for many reasons.. .
We had commitments to deliver materials to people,
sales that had been made for our plant. That be-
comes a crucial thing in the plywood operation be-
cause there is a different freight rate from every in-
dividual plant. If we tried to transfer those orders,
there would be additional costs involved. Also,
there would be a problem if you did transfer them
to other plants [of] finding a plant that could take
the order because we were running, as I recall,
about three weeks out [behind] on deliveries; so
every plant was already at capacity and it would
certainly have been impossible for them to take all
of our orders or probably very many of the orders.6
There was also testimony, as noted above, that if the
Louisville plywood plant closed down, Respondent's
S Foster also noted that it was "not feasible for the Company to debark
logs and then not process the logs" because of lack of suitable storage
facilities for the logs
O'Briant acknowledged that although there was a 60-percent reduction
in production at the Louisville plywood plant during the lockout, the
chemical plant continued operating without any layoffs and the Taylors-
vdle stud mill continued operating at "full capacity "
6 Company Representative Foster noted that on March 2 "we had 2 3
million dollars [in] outstanding orders on file" for Louisville plywood
These orders were for "a firm price" at a scheduled delivery date Foster
further noted that Respondent also had approximately $3 million in out-
standing timber removal contracts If Respondent could not remove the
timber within the periods provided in the timber removal contracts, the
Company could lose its right to remove the timber and money paid to
the property owners involved
GEORGIA-PACIFIC CORP.
stud mill operations in Taylorsville, Mississippi, would
have been significantly affected because it received from
Louisville the plywood log cores . Likewise , there was
testimony to the effect that Respondent's longstanding
relationship with its independent logging contractors
would have been seriously impacted by any break in the
continuous hauling of the plywood logs . Logger Jeff
Winstead explained the economic consequences to him
and his employees of any extended cessation of Respond-
ent's Louisville logging operations . And, as O'Briant and
Foster observed , any break in this relationship would ul-
timately impact on Respondent 's future supply of logs at
Louisville.7
I credit the testimony of James O'Briant, Bill Purifoy,
Gerald Weaver , Don Foster , and Jeff Winstead , as recit-
ed above . Their testimony is essentially uncontroverted
and they impressed me as trustworthy and reliable wit-
nesses . Insofar as the testimony of Floyd Doolittle,
Marion Hamm, Elmer Coleman , and Charles Prince dif-
fers with the above testimony of O'Briant , Purifoy,
Weaver, Foster , and Winstead , I am persuaded here that
the testimony of the latter witnesses is more complete
and reliable.8
Discussion
The General Counsel argues that Respondent Employ-
er violated Section 8 (a)(1) and (3) of the Act "by con-
tinuing production with non-unit employees and tempo-
rary replacement employees during a lockout." The
lockout, however, is not alleged to be unlawful . Further,
it is not claimed here that Respondent failed to bargain
in good faith with the Charging Party Union or that Re-
spondent by its conduct has otherwise violated the pro-
scriptions of the Act. The General Counsel asserts (Br. 1,
6, and 8):
Although the Employer had a legitimate economic
interest in avoiding a contract with a common expi-
ration date with other plants . . . [the Employer]
offers no legitimate reason why it was necessary to
continue operations during the lockout with the use
of temporary replacements... .
The Employer "lacked sufficient economic justification
to continue operating during the lockout"; and "the con-
tinued operation during the lockout with the temporary
9 Union Representative Floyd Doolittle recalled that during the
Union's negotiations for the current contract , "O'Briant asked us if we
intended to strike, and I told him no, and I asked him if he intended to
lock out and he said no , not at this time," and "he [O'Briant] also ques-
tioned me [Doolittle] about would we strike in December , and I told him
I didn't know , but if we did that would be the most logical time for us to
strike ." Doolittle assured O'Briant during negotiations "that if there were
a strike, there would have to be a meeting of the membership for the
[strike] vote" and "we would have to notify him." Doolittle also recalled:
My statement [to O'Briant] was that I had no control over how
my people would vote if they did in fact have a special meeting
called for the purpose of considering a strike action
In addition , Charles Prince , a millwright employee at Louisville, and
Marion Hamm , a debark operator at Louisville, claimed that, in effect,
the "summer months " are the Employer 's "busier months of the year "
Elmer Coleman , a millwright employee at Louisville , witnessed the Em-
ployer "hauling shavings for the boilers " at Louisville during the lockout.
a The General Counsel 's motion to correct the record, which is unop-
posed , is granted.
5
employees is in itself evidence of anti-union animus."
Further, the General Counsel asserts, as "an alternative
theory," that "the use of temporary replacements during
the lockout . . . was inherently destructive of the rights
of its regular employees and therefore a violation of the
Act without regard to any claim that such conduct was
motivated by business considerations . . . ." (Br. 9.) The
Charging Party Union similarly argues (Br. 1, 10 -11, 16):
"the use of temporary replacement employees during a
lockout, with or without the existence of business neces-
sity, is unlawful and in violation of Section 8(a)(1) and
(3) of the Act." Respondent denies that its conduct here
violated Section 8(a)(1) and (3) as alleged and asserts,
inter alia (Br. 14-23):
the evidence affirmatively . and amply demonstrates
[the Employer 's] good faith in this matter. There
has been no showing by specific proof or otherwise
... of any anti-union motivation.
At the Louisville complex it was necessary . . . to
continue to operate the plywood plant to keep its
other plants going which were not involved in the
labor dispute.
Respondent also cites its "substantial contractual commit-
ments" to customers which it "could not keep without
operating the plywood plant and without vast economic
losses"; its effort "to preserve the viability of the inde-
pendent logging contractors essential to [its] operations
after the lockout was over"; ' and its "large outstanding
timber harvesting commitments which had to be contin-
ued"; and , therefore , in sum , Respondent had "a legiti-
mate business purpose" for continuing its operations
during the lockout.
In Ottawa Silica Co ., 197 NLRB 449 (1972), enfd. 482
F.2d 945 (6th Cir. 1973), the trial examiner held that an
employer, "by utilizing temporary labor to perform the
duties of employees whom it had locked out . . . inter-
fered with , restrained and coerced unit employees in the
exercise of rights guaranteed by Section 7 of the Act,
and concomitantly discouraged membership in the union
by discrimination against them in respect to their hire
and tenure of employment, without legitimate and sub-
stantial justification, in violation of Section 8(a)(1) and
(3) of the Act." A divided Board reversed the trial exam-
iner. The Board (former Chairman Miller concurring,
and Members Fanning and Jenkins dissenting in pertinent
part) stated the controlling legal principles , as follows (at
450):
In NL. R.B. v. Brown, et aL , d/b/a Brown Food
Stores, 380 U.S. 278 (1965), the Supreme Court reaf-
firmed its views stated in American Ship Building,
which was decided on the same day, that a lockout
is not an unfair labor practice simply because it is
used by an employer to bring pressure to bear in
support of his - bargaining position after an impasse
in bargaining negotiations has been reached . Having
so held, the Court stated that it did not see how the
continued operations of the employers there in-
volved and their use of temporary replacements im-
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied hostile motivations any more than the lockout
itself; nor could the Court see how they were inher-
ently more destructive of employee rights.
The Supreme Court expressly rejected the
Board's argument in Brown Food Stores that justifi-
cation for the inference of hostile motivation ap-
peared in respondent's use of temporary employees
rather than some of the regular employees.9
Similarly, the Court concluded that respondents
do not violate Section 8(a)(3), observing that under
that section both discrimination and a resulting dis-
couragement of union membership were necessary,
but the added element of unlawful intent was also
required. . . . While the use of temporary nonunion
personnel in preference to the locked out union
members was discriminatory, the Court observed
that any resulting tendency to discourage union
membership was comparatively remote, and that the
use of temporary personnel constituted a measure
reasonably adapted to the effectuation of a legiti-
mate business end.
The Board, in Ottawa Silica, further quoting from the Su-
preme Court's opinion in Brown Food Stores, emphasized
(at 450): "When the resulting harm to employee rights is
thus comparatively slight, and a substantial and legiti-
mate business end is served, the employer's conduct is
prima facie lawful."
The Board, in Ottawa Silica, held that the employer
did not violate Section 8(a)(1) and (3) by locking out its
employees and continuing to operate with temporary re-
placements, reasoning : "We are not persuaded by the
record before us that respondent's conduct did not con-
stitute a measure reasonably adapted to the effectuation
of a legitimate business end." The Board noted, inter alia,
"the replacements were expressly used for the duration
of the labor dispute only"; "at most, the union could be
forced to capitulate and return its members to work on
terms less desirable than hoped for"; the "membership,
through its control of union policy, could end the dis-
pute and terminate the lockout any time by agreeing to
respondent's terms and returning to work on a regular
basis"; "it would appear that union members would have
nothing to gain and everything to lose by quitting the
union"; and, "under all these circumstances, we cannot
say that respondent's conduct had any great tendency to
discourage union membership"-"not only was the pros-
pect of discouragement of membership comparatively
remote, but the attempt to remain open for business with
the help of temporary replacements was a measure rea-
sonably adapted to the achievement of a legitimate end."
In short, "Having concluded that resulting harm to em-
ployee rights by the lockout and continued operation by
use of temporary replacements was comparatively slight,
9 The Board quoted from the Supreme Court in Brown Food Stores, as
follows (at 450)
Continued operations with the use of temporary replacements may
result in failure of the whipsaw stnke, but this does not mean that
the employers' conduct is demonstrably so destructive of employee
rights and so devoid of significant service to any legitimate business
end that it cannot be tolerated consistent with the Act Certainly
then, in the absence of evidentiary findings of hostile motive, there is
no support for the conclusion that respondents violated § 8(a)(1)
and being of the view that there is insufficient evidence
of improper motivation . . . . Respondent did not vio-
late Section 8(a)(1) and (3)."10
Also see Johns-Manville Products, 223 NLRB 1317
(1976), affd. in part 557 F.2d 1126 (1977); Sargent-Welch
Scientific Co., 208 NLRB 811 (1974); Ozark Steel Fabrica-
tors, 199 NLRB 847 (1972); WGN of Colorado, 199
NLRB 1053 (1972); and Inter-Collegiate Press, 199 NLRB
177 (1972), affd. 486 F.2d 837 (8th Cir. 1973). As the
court of appeals stated in Inter-Collegiate Press v. NLRB,
supra:
We recognize that there is coercion present when
the employer locks out his employees, and it may
be magnified when the employer continues oper-
ations with temporary employees. The coercion,
however, is to force acceptance of the employer's
bargaining proposals, not to deter employees from
the exercise of their rights... .
It must be conceded that the use of a lockout in
support of a legitimate bargaining position is not in-
consistent with the right to bargain collectively or
the right to strike. . . . The hiring of temporary re-
placements does no more than increase the pressure
upon the employees to settle the dispute, while per-
haps easing the pressure on the employer.
Here, since no anti-union animus or hostile motiva-
tion has been shown and the employer has estab-
lished a substantial and legitimate business justifica-
tion, we agree with the Board that there is no §
8(a)(1) violation merely because the Company may
have increased the economic pressure on the Union
by continued operation with temporary replace-
ments. [And see cases cited.]
Applying the above principles to the essentially undis-
puted and credited evidence of record in this case, I find
and conclude that Respondent Employer did not violate
Section 8(a)(1) and (3) of the Act by attempting to con-
tinue production at its Louisville plywood mill with the
use of temporary nonunit personnel following and inci-
dental to a lawful lockout. Respondent's use of tempo-
rary nonunit personnel, under the circumstances shown
here, was in furtherance of substantial and legitimate
business ends, and "any resulting tendency to discourage
Union membership was comparatively remote." See
is Former Chairman Miller, in his concurring opinion, noted that he
concurred in the above result "only because" respondent "utilized only
its nonumt personnel ", the "Union had refused to provide any assurance
of continued operations, and there was reason to believe that a stnke was
imminent", and "there was some evidence , although perhaps not totally
conclusive , of a bona fide business justification "
Further , I note that the Board had stated earlier, in Darling & Co., 171
NLRB 801 (1968), "the absence of an impasse is one of the surrounding
circumstances , but does not necessarily require the conclusion that the
lockout was lawful the test of a lockout's legality, enunciated by the
Supreme Court in American Ship Building, is properly applicable to situa-
tions involving a lockout pnor to an impasse in negotiations." The Board
concluded . "the lockout here was neither inherently prejudicial to union
interests nor devoid of significant economic justification " Cf Inter-Colle-
giate Press v NLRB, 486 F 2d 837, 842 fn 8 (8th Cir 1972), and Lewis
Lane Y NLRB, 418 F 2d 1208 (D C Cir 1969)
GEORGIA-PACIFIC CORP.
Ottawa Silica , and cases discussed . Thus, the parties here
had executed successive 3-year term collective -bargain-
ing agreements since 1967 . During the negotiations for
the current agreement in late 1978 and early 1979, the
Union , in an unprecedented move , requested a 10-1/2-
month term agreement . The Union acknowledged to the
Employer that it had "gotten together" with the Interna-
tional Woodworkers and "had . . . a pact in which they
agreed . . . [to] have all [their ] contracts [with the Em-
ployer] expire on December 1 . . . or November 30." As
Company Representative O'Briant explained : "We were
faced with having all our plywood facilities in a position
that . . . [the Union] could strike us at one time and
bring enormous pressure upon " the Employer . Indeed, as
Union Representative Doolittle acknowledged:
[O'Briant] also questioned me [Doolittle] about
would we strike in December , and I told him I
didn't know, but if we did that would be the most
- logical time for us to strike.
And, unit employees , during this time, were apprising
the Employer that "we're just going to continue to work
until we get you where we can strike all your plants at
one time." The parties met during some nine bargaining
sessions from December to March 1979 , and the Union
"continued to hold on the position of a common expira-
tion date." Consequently , on March 2 , 1979, management
determined "not to wait and let " the Union "pick [its]
time to put that pressure" on the Employer . The Em-
ployer locked out the unit personnel , although apprising
the employees that it would continue to negotiate with
the Union. No new employees were hired during the en-
suing 6-week lockout . And, ultimately , the Union accept-
ed the Employer's proposed 3-year term agreement. All
unit employees then returned to their same jobs . No unit
employees lost their jobs . The 1979- 1982 contract con-
tained increases in benefits for the unit employees and
continued checkoff and recognition as before.
As noted above , the lockout is not alleged here to be
unlawful. Further , there is no contention made that Re-
spondent bargained in bad faith or otherwise engaged in
conduct violative of the Act . Indeed , here , as in Ottawa
Silica, "the replacements were expressly used for the du-
ration of the labor dispute only"; "at most, the Union
could be forced to capitulate and return its members to
work on terms less desirable than hoped for"; the "mem-
bership , through its control of Union policy , could end
the dispute and terminate the lockout any time by agree-
ing to Respondent 's terms"; and "it would appear that
Union members would have nothing to gain and every-
thing to lose by quitting the Union." In short, "under all
these circumstances , we cannot say that Respondent's
conduct had any great tendency to discourage Union
membership." (Ibid.)
Further, "not only was the prospect of discouragement
of membership comparatively remote , but the attempt to
7
remain open for business with the help of temporary re-
placements was a measure reasonably adapted to the
achievement of a legitimate end." (Ibid .) For, as found,
supra, the Employer's Louisville plywood plant con-
tained the only boiler necessary to operate the Employ-
er's proximately located chemical plant and particleboard
plant . The entire operation of this complex was interre-
lated and interdependent and, consequently , if the ply-
wood mill closed the chemical plant and particleboard
plant ultimately would also have to close resulting in
substantial losses of profits and layoffs of nonunit person-
nel. Further, Respondent's various plywood plants were,
at the time , operating at capacity with backlogs of
orders, and a total cessation of operations at the Louis-
ville mill would result in a substantial amount of unfilled
orders with a loss of profits and customers . And, because
the sales price for the Louisville plywood sheets already
under contract to be sold was fixed , and was dependent
upon transportation costs from Louisville, any effort, if
possible , to fill these orders from other plywood mills
would undoubtedly add to the Employer 's cost in ship-
ment . Likewise, the Employer 's demonstrated need to
maintain a continuous flow of logs from its independent
contractor loggers; its need to keep current on its timber
removal contracts ; and its need to supply its nearby Tay-
lorsville facility with the residual stud cores from its
Louisville plywood plant are all additional business rea-
sons for attempting to continue, even on a limited basis,
production at the Louisville plywood mill.
In sum , I find and conclude that Respondent Employ-
er's attempt to continue operations at its Louisville ply-
wood mill was for substantial and legitimate business-rea-
sons and any resulting tendency to discourage union
membership was comparatively slight or remote. Re-
spondent Employer therefore did not violate Section
8(a)(1) and (3) as alleged."'
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. Charging Party is a labor organization as alleged.
3. Respondent has not violated Section 8(a)(1) and (3)
of the Act as alleged.
4. The complaint will therefore be dismissed in its en-
tirety.
11 The General Counsel , in her brief, argues that Respondent Employ-
er, during the lockout , was operating at only 60 percent of normal pro-
duction ; that the interrelated chemical and stud mill operations neverthe-
less continued without any "apparent adverse effect on anyone", and that
therefore "continued operation was totally unnecessary ." Likewise, the
General Counsel argues that the Employer , in her view, could have used
natural gas and purchased bark to operate its plywood mill boiler, at ad-
ditional costs and assuming such products were sufficiently available. Al-
though these and related contentions pose questions as to the ultimate
economic success of Respondent 's attempt to keep its Louisville plywood
mill operating with nonunit employees , they do not, in my view, suffi-
ciently detract from management 's legitimate and substantial business pur-
pose in making this attempt , as found above.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
ORDER
I recommend that the complaint be dismissed in its en-
tirety.
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses