Hercules Powder Co.

National Labor Relations Board - Board Decisions

Apr 22, 1960

127 N.L.R.B. 333 (N.L.R.B. 1960)

HERCULES POWDER COMPANY 333
Hercules Powder Company and James W. Abernathy , et als.
Cases Nos. 10-CA-3809 through 10-CA-3918. April 22, 1960 ,
DECISION AND ORDER
On May 28, 1959, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications and additions
indicated below.
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (1) and (3) of the Act, by threatening a lockout and
issuing a lockout notice while bargaining negotiations were in prog-
ress and by thereafter shutting down its operations, all at a time
when the Respondent did not have reasonable grounds for believing
that the Union would call a sudden strike which would endanger its
plant. The critical facts and circumstances which we believe compel
this conclusion are as follows :
The Union has been the contractual bargaining representative of
Respondent's employees since 1950. The 1956 contract between the
parties was to terminate on June 4, 1958. On April 4, 1958, the Union
served a termination notice on Respondent, stating that it was given
pursuant to Section 8(d) of the Act. The contract thus terminated,
like the earlier ones, contained a provision requiring that, in case of
any discontinuance of operations from any cause, at least 72 hours'
notice would be given in order that explosive materials on hand might
be processed and the plant cleaned.
Bargaining negotiations between the parties began on May 5. On
June 3, Foster, Respondent's spokesman, asked Hollyfield, the union
spokesman, if the Union had taken a strike vote as he had heard by the
"grapevine." Hollyfield replied that no such vote had been taken and
that none was anticipated.
On June 4 the parties were close to agreement on a contract. Foster
again inquired about the possibility of a "quickie" strike and Hollyfield
1 The Board hereby denies the Respondent's request for oral argument , because the
record, exceptions , and brief adequately present the issues and positions of the parties
127 NLRB No. 46.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reassured him that no strike vote had been taken and that none was
contemplated. Hollyfield also offered Foster a; written extension of
the 60-day notice served on April 4 for any number of days Foster
deemed necessary for the completion of negotiations. As explained to
Foster, Hollyfield believed that the purpose and effect of such an
extension would be to deprive the Union of the right to strike during
the extended period. In addition, Hollyfield reminded Foster of his
action in 1954 when, following a strike vote upon the termination of
the 1952 contract, he assured Foster that Respondent would have 72
hours in which to clean up the plant, although there was no con-
tractual obligation which required the Union to give such assurance.
Foster replied that Hollyfield's proposal and assurances would not
suffice and demanded that the Union agree to give "at least seventy-
two hours' notice prior to a work stoppage, for any cause, on the part
of the Union and its members." Hollyfield explained to Foster that
he had received legal advice that the Union's agreement to a proposal
in that form might necessitate the service of another 60 days' notice
under Section 8 (d), whereupon Foster notified Hollyfield that the
Respondent would discontinue operations on the next day. Holly-
field again affirmed that the employees wanted to continue at work
and would not quit on their own volition. The parties agreed to meet
on the following day.
Prior to the bargaining session on June 5, Respondent issued layoff
notices to its employees. Later in the day, the negotiators reached
agreement on a contract. Nonetheless, at the close of the day, the
plant shut down and the employees were laid off. They were not
permitted to return to work until June 13, only after the union mem-
bership had ratified both the contract which Respondent undertook
to prepare and a letter of interpretation which accompanied the
contract.
By letter dated June 7, at a time when Respondent was preparing
the contract for signatures, Hollyfield again offered to renew the 72-
hour notice provision of the recently expired contract and asked that
the employees be returned to work. Foster rejected these proposals,
again demanding an agreement in the form requested on June 4.
We think it abundantly clear from these facts that the Respondent's
conduct in issue did not result from any real threat of a "quickie"
strike by the Union. The repeated verbal assurances by the Union
that no strike was contemplated, its offers to extend in writing the
72-hour strike notice provisions of the 1956 contract, the issuance of
layoff notices by Respondent at a time when the parties were close to
an amicable settlement of their differences, the shutdown after agree-
ment was reached and the refusal to reopen the plant in the circum-
stances outlined above, and the past bargaining history between the
parties, including the responsible regard for the safety of the plant
HERCULES POWDER COMPANY 335
displayed by the same union negotiator in 1954, all serve to underscore-
this fact . Our dissenting colleagues assert that the Union 's offer to
extend the 72-hour strike notice provisions was conditioned upon
Respondent's agreement to make any new contract retroactive to the
expiration date of the 1956 contract. But the Respondent never as-
signed this as a reason for rejecting these offers made on June 4 and 7.
Indeed, the June 7 offer was rejected following agreement by the
parties on a contract which, in its final form as prepared by Re-
spondent, contained • a wage schedule effective as of June 5. We are
therefore not persuaded that any meaningful qualification was at-
tached to the Union's offers to renew the 72-hour strike notice
provisions.
If Despondent resorted to the lockout merely to avoid the possi-
bility of a strike and its attendant disruptions, its action cannot be
justified under the law. Such anticipatory conduct is not sanctioned
by the Act and layoffs so motivated violate the Act. It follows from
all the foregoing that the Respondent must be held to have violated
the Act, as alleged in the complaint.'
ORDER
Upon the entire. record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , Hercules Powder
Company, Bessemer, Alabama, its officers, agents, successors , and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees, by discriminatorily locking out, laying off, or reducing the
work week of its employees , or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or condi-
tion of employment.
(b) Threatening its employees with a partial plant shutdown, lock-
out, or layoff in order to force them and their bargaining representa-
tive to give up their bargaining demands and accept Respondent's
contract proposals without further bargaining.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations , to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own
choosing, to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
2 Quaker State O il Refining Corporation , 121 NLRB 334 , enfd. 270 F. 2d 40 (C.A. 3).
336 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment as authorized by Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole all employees listed in Appendix B attached to the
Intermediate Report for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Post at its Bessemer, Alabama, plant, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by it
immediately upon receipt thereof, and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amounts of
backpay due under the terms of this Order.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps it has taken to comply
herewith.
CHAIRMAN LEEDOM, dissenting :
I would dismiss the complaint herein in view of what I deem to be
the Union's refusal to renew unconditionally the 72-hour strike notice
provision, and in view of the special danger of damage to the Respond-
ent's physical plant in case of a "quickie" strike. I believe that these
.circumstances bring the case within the rule enunciated in Betts
Cadillac Olds, Inc., et al., 96 NLRB 268, that an employer may lock
out his employees in the face of a threat of a strike, if such lockout is
necessary to prevent, inter alia, damage to his physical plant.
I deem this case distinguishable from Quaker State Oil Refining
Corporation, supra, and American Brake Shoe Company, 116 NLRB
820, 838, in which I subscribed to the view of the majority of the Board
that a lockout allegedly for the purpose of forestalling special strike
damage was not, in fact, for that purpose but solely to exert pressure
on the union to accept the respondent's contract proposals. In those
cases there was no action by the union involved comparable to the
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
HERCULES POWDER COMPANY 337
refusal by the instant Union to give the Respondent unconditional
assurance that it would receive adequate advance notice of any strike
action. In American Brake Shoe, the employer did not even seek such
assurance or any other guarantee against strike action, in advance of
the lockout. In Quaker State, the union, in fact, offered, before the
lockout, to sign a contract waiving its right to strike for a period of
90 days.
Accordingly, while I adhere to the position taken by the majority in
these two cases, I would find, for the reasons just stated, that the
instant lockout was lawful.
MEMBER RoDGERS, dissenting :
I would dismiss the complaint herein for the reasons expressed in
my dissenting opinion in American Brake Shoe Company, supra.
These reasons were adopted by the United States Court of Appeals for
the Seventh Circuit in setting aside the Board's order in that case,
American Brake Shoe Company v. N.L.R.B., 244 F. 2d 489. I reit-
erated these reasons in my dissent in Quaker State Oil Re fining Cor-
poration, 121 NLRB 334, 340.
In this case, the Respondent and the Union 'had, in past contracts,
been aware of the necessity for assurance against strikes without
notice. Their contracts had contained•a provision making mandatory
the giving of notice at least 72 hours prior to the calling of a strike.
The necessity for such notice was predicated upon the fact that 72
hours were required, for safety purposes, to ensure the completion of
the processing of nitroglycerine into finished powder and to ensure the
requisite cleaning up of hazardous materials.
Although the Union, during the instant bargaining negotiations,
was willing to extend the contract with this clause included, it made
such extension contingent upon the Respondent's agreeing to make any
new contract retroactive to June 4, the date of expiration of the then-
existing agreement. The Respondent requested an unconditional ex-
tension, but the Union refused. When the contract expired and the
Respondent no longer had any assurance for the safety of its property,
the Respondent suspended its operations. Although it later capitu-
lated with respect to retroactivity, at the time of its decision to sus-
pend operations the Respondent did not wish to make any concessions
on this point .4
In the light of the Union's withdrawal of the 72-hour notice provi-
sion, and in view of the dangerous nature of the operations involved, I
would find that the Respondent acted reasonably, since it did not wish
to, nor was it compelled to, accede to the Union's demands, to avoid
the possible disaster of a sudden shutdown of its plant by the Union.
* That it was within its rights in not making a concession , see N . L R B. v. American
National Insurance Co , 343 U S 395 , 401-404.
560940-61-vol 127-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reasoning expressed in my dissent in the American Brake Shoe
case, and in the Court's subsequent decision therein, has increased
application in a case such as this. In American Brake Shoe, the court
agreed that the imminent probability of a permanent loss of business,
based upon the union's strike threat, justified the employer's shutdown
of its plant. Here not only would the Respondent's business have
suffered from a strike without notice, but both its plant and the nearby
community at large were threatened with a possible disaster if such
a strike occurred.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in any labor organization
of our employees, by discriminatorily locking out, laying off, or
reducing the workweek of our employees, or by discriminating
in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT threaten our employees with a partial shutdown,
lockout, and layoff in order to force them and their bargaining
representative to give up their bargaining demands and accept
our contract proposals without further bargaining.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right of
self-organization, to form labor organizations, to join or assist
any labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL make whole all employees named in the list attached
to the Intermediate Report marked "Appendix B," for any loss
of pay suffered by them as a result of our discrimination against
them.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of any labor organization, except to
the extent that such right may be affected by an agreement authorized
HERCULES POWDER COMPANY 339
by Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
HERCULES POWDER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed and served by the individuals named in Appendix B
hereto attached , a complaint was issued in the above cause by the General Counsel
of the National Labor Relations Board, through the acting Regional Director for
the Tenth Region , alleging that Hercules Powder Company, herein called Respondent,
had engaged in unfair labor practices in violation of Section 8(a)(1) and (3), and
Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act. The complaint alleges that on or about June 5, 1958,
Respondent shut down its Bessemer, Alabama, plant and locked out its employees
because the Charging Parties herein engaged in concerted activities for the purpose
of collective bargaining and other mutual aid and protection . By its answer,
Respondent denied that it had committed any unfair labor practice , but admitted
that part of its operations had been shut down due to a lack of business , and that
other parts were shut down on June 5, but denied that there was any lockout.
Pursuant to due notice given to all the parties , a hearing was held before the duly
designated Trial Examiner at Birmingham , Alabama, on February 25 and 26, 1959_
The General Counsel and Respondent were represented by counsel and were afforded
full opportunity to be heard, to examine and cross-examine witnesses , to adduce
evidence bearing on the issues, to present oral argument , and to file briefs Final
ruling on Respondent 's motions , made during the hearing , to dismiss the proceed-
ing on the alleged ground that the Charging Parties herein were "fronting" for an
organization not in compliance with Section 9 (f), (g), and (h) of the Act, and
that the charges herein were "solicited" by the Board, were withheld and are dis-
posed of in the findings that follow . Since the close of the hearing, briefs have been
received from the General Counsel and Respondent both of which have been care-
fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation maintaining offices and places of business
at various locations throughout the United States, including Bessemer , Alabama,
where it is engaged in the manufacture and sale of explosives. During the 12 months
preceding the filing of the complaint herein , Respondent shipped from its Bessemer
plant directly to customers located outside the State o f Alabama finished products
valued in excess of $50,000. I find that Respondent is engaged in commerce within
the meaning of the Act.
If. THE COLLECTIVE -BARGAINING REPRESENTATIVE OF RESPONDENT 'S EMPLOYEES
During all times relevant herein, District No 50, United Mine Workers of
America, and its Powder and Acid Workers Local No. 13493, herein collectively
called the Union, are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The Union has been the duly recognized collective -bargaining representative of
Respondent 's production and maintenance employees at its Bessemer plant since
1950. Collective-bargaining agreements of 2 years ' duration were executed by the
parties in 1950, 1952, 1954 , and 1956, all of which contained a provision that im
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case of any discontinuance of operations from any cause, a sufficient period of time,
not to exceed 72 hours, would be allowed prior to discontinuance during which
time all of the nitroglycerine would be processed into finished powder and all
operating buildings would be cleaned up. The last of the aforementioned agree-
ments was to remain in effect until June 4, 1958, and for successive 2-year periods
thereafter unless either party notified the other, in writing, 60 days prior to the
next anniversary date of its desire to terminate the agreement. On April 4, 1958,
the Union served such a termination notice on Respondent (attachment 1 to Respond-
ent's Exhibit No. 4), and requested a conference to begin negotiations for a modi-
fication of the expiring contract. This notice stated that it was given pursuant to
Section 8(d) of theAct.
Bargaining conferences between the parties were held on May 5, 15, 20, 23, 27,
28, June 2, 3, and 4, 1958. It would serve no useful purpose to detail the course
of these meetings. It is sufficient to note, and I find, that substantial progress towards
ultimate total agreement was made at these conferences and that on June 4, which
date both parties construed to be the last day of the existing contract, complete
agreement was not reached because of Respondent's insistence upon, and the
Union's refusal to acceed to, Respondent's proposed seniority and job-bidding pro-
posals. The parties nevertheless agreed to meet again on the following day, June 5.
Accusations by Respondent that it had heard that the Union would strike, and by
the Union that Respondent intended to lock out its employees, unless agreement
was reached by June 4, were exchanged at the meeting of June 3. Thus, on June 3,
E. E. Hollyfield, regional director for the United Mine Workers, asked J. C. Foster,
Respondent's works manager and its principal spokesman during the negotiations,
whether "he was preparing to lock the employees out as had been rumored in the
plant." Foster's only answer was: "We won't have any orders." Foster asked
Hollyfield, the Union's principal spokesman, if the Union had not taken a strike
vote on the previous Wednesday. The latter replied that no such vote had been
taken, that none was anticipated, and asked Foster to "talk about negotiating a
contract and not about stopping the plant."
Near the close of the meeting on June 4, a discussion was engendered by Foster
about the possibility of a "quickie strike." Hollyfield sought to assure him that the
employees did not want to strike, and repeated that no strike vote had been taken
and that none was anticipated. As a further assurance, he proposed that the Union
would give Respondent a written extension of the 60 days' notice served on April 4
for 5, 10, 15, or any number of days that Foster felt necessary to complete the
negotiations. Hollyfield explained that in his opinion, and that of the Union's
counsel, both the purpose and effect of this extension was to deprive the Union of
the right to engage in a lawful strike during the extended period. To further remove
any fear in Foster's mind that the Union would, without notice, impose a strike
upon Respondent without regard for human life or Respondent's property, Holly-
field reminded Foster of their experience on June 1954.
On June 4 of that year (1954), the expiration date of the 1952 contract, the
parties had not been able to reach agreement on a new contract. During the after-
noon of that day, the Union voted to strike on the following morning rather than
to accept Respondent's last offer. Notwithstanding the absence of any contractual
obligation to do so, when Hollyfield called Foster during the same evening and noti-
fied him of the union action taken, he verbally assured Foster that Respondent would
have 72 hours in which to process the nitroglycerine and to clean up the plant.
Though approximately 6 employees ignored the Union's commitment and established
a picket line, the balance of some 200 employees crossed that line and fulfilled their
Union's promise to management.
Foster, however, refused to accept Hollyfield's proposal and assurances and
stated that they would not suffice. Instead, he reached into his desk, pulled out
two letters, both dated June 4, 1958, already fully prepared and signed He handed
the first letter to Hollyfield and told him that if he did not sign it Foster would
hand him the second letter. The first letter read as follows:
BESSEMER, ALABAMA, June 4, 1958.
'MR. E E. HOLLYFIELD
Director, Region 29
District 50, United Mine Workers of America
821-22 Frank Nelson Building
Birmingham, Alabama
DEAR SIR: As you know, all of the terms and conditions of employment set
forth in the Labor Agreement between Hercules Powder Company, Inc. and
Local No. 13493 of your Union expired on June 4th, 1958. It is, nevertheless,
HERCULES POWDER COMPANY 341
our intention to continue operating the Bessemer Works; provided, however,
that the Union, for itself and on behalf of the members of Local No. 13493,
United Mine Workers of America, agree to:
1. Give at least seventy-two (72) hours' notice prior to a work stoppage for
any cause, on the part of the Union and its members.
2. During the seventy-two (72) hour period, the working force will process
explosives and other hazardous material into Finished Product, Operating
Buildings will be satisfactorily cleaned and production will be shipped from
the Plant premises.
For its part, the Company agrees that if for any reason other than lack of
business affecting the Bessemer Works, the Company decides to shut down
operations, it will give the Union seventy-two (72) hours' notice. If such
notice is given, the conditions outlined in (2) above shall be adhered to by the
Union and its members.
Your signature and those of the Officers of Local 13493, in the spaces
provided below, will be sufficient to indicate acceptance of these terms.
Yours very truly,
(S) J. C. FOSTER, Works Manager.
Hollyfield read the letter and rejected it in behalf of the Union. He informed
Foster that he had been advised by the Union's legal department to use the extension
form previously proposed by him, and that to consent to Respondent's proposal
might make it necessary for the Union to serve another 60-day notice of intention
to strike if no agreement on a contract was reached.
The second letter handed by Foster to Hollyfield read as follows:
BESSEMER , ALABAMA, June 4, 1958.
Mr. E. E. HOLLYFIELD
Director, Region 29
District 50, United Mine Workers of America
821-22 Frank Nelson Building
Birmingham, Alabama
DEAR SIR: In view of the expiration of the collective bargaining agreement
between this Company and Local 13493, United Mine Workers of America,
effective 12:01 A.M., June 5th, 1958, the Company has offered to continue
operations dependent upon the joint obligation of the Company and Union
to give at least seventy-two (72) hours' prior notice of intention to discontinue.
This offer has been refused by the Union.
Since Explosives production and shipment might become seriously haz-
,ardous in the event of sudden work stoppage and since the Company is
obligated to its customers to maintain certain delivery schedules, we find it
necessary to discontinue operations effective 12:01 A.M., June 5th, 1958.
Provided that a further Labor Agreement is entered into which will insure
adequate protection to the Company, its customers, and the public, operations
at the Bessemer Works may be resumed.
Yours very truly,
(S) J. C. FOSTER, Works Manager.
Hollyfield told Foster that the men wanted to work, would not quit "on their own
volition," and added that "if such tactics as this were used, to try to get the em-
ployees to accept the contract proposals on seniority which [Foster was] trying to
more or less make them accept, and [if Foster was] going to shut down the plant"
if they didn't accept, Hollyfield was sure that Respondent would be charged by its
employees with a lockout. Foster merely replied that he would "take his chances
on that " Notwithstanding Respondent's announced intention to discontinue opera-
tions, the parties nevertheless agreed to meet again on June 5.
Prior to the meeting on June 5, Respondent caused to be inserted in the pay
envelope of the 110 charging employees named in Appendix B, and which pay
envelopes they normally would have received on that day, a notice reading as
follows: "Inasmuch as it is impossible to operate the plant without a guarantee
that a sufficient cleanup period would be observed during the period of operation,
you are hereby notified that you are not to report for work."
Though the testimony relating to the conference of June 5 is extremely sparse, I
find that agreement was reached on that day and that no further bargaining con-
ferences between the committees representing both parties were held thereafter.
I further find that on June 5 Respondent undertook the task of preparing the con-
tract and agreed to have the same ready for signature by noon of Saturday, June 7.
During the latter day, Foster told Hollyfield that the preparation of the written
agreement was a bigger job than had been anticipated and that he could not have
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the written agreement ready before noon of June 9. Hollyfield remonstrated that
it appeared to him that Foster was "trying to hold the men away from work; that
never before had he insisted on a contract being signed" before allowing Respond-
,ent's employees to continue their employment. Foster replied that the employees
would not be allowed to return to work "until the contract was written and signed
by all the parties."
The proposed contract was not delivered to the Union until about 4 p.m. of June 9,
too late for proofreading and ratification by the Union at a meeting scheduled for
2 p.m. of that day. When it did arrive, it was accompanied by a so-called letter of
interpretation of certain provisions of the agreement and of which no previous men-
tion had been made. Respondent insisted, however, that the letter also be approved
and signed by representatives of the Union. Though the Union's committee were
disposed not to sign the letter because it added nothing to the terms agreed upon,
and had not been negotiated, Hollyfield prevailed upon them to do so. The contract,
bearing date of June 12, was ratified at a union meeting on June 11, and operations
were resumed on June 13.
The briefs of both the General Counsel and Respondent are in agreement that
the only issue on the merits herein is whether under the circumstances existing at
the conclusion of the bargaining conference on June 4 Respondent was justified in
resorting to the lockout as a defensive measure. The principle which must guide
decision herein was succinctly stated by the Board in Quaker State Oil Refining
Corporation, 121 NLRB 334.1 The Board there "held that, absent special circum-
stances, an employer may not during bargaining negotiations either threaten to lock
out or lock out his employees in aid of his bargaining position. Such conduct the
Board was held presumptively infringes upon the collective-bargaining rights of
employees in violation of Section 8(a)(1) and the lockout, with its consequent
layoff, amounts to discrimination within the meaning of Section 8(a) (3). . How-
ever, the Board has recognized that there are special circumstances where the right
of employees to engage in collective bargaining is not absolute but must be balanced
against the employer's right to protect his business against loss. Accordingly, it has
held that lockouts are permissible to safeguard against unusual operational problems
or hazards or economic loss where there is reasonable ground for believing that a
strike was threatened or imminent. The burden of going forward with the evidence
to justify the lockout rests on the Respondent." [Emphasis supplied.]
Here, the testimony is conclusive that the lockout notice was given by Respondent
while bargaining negotiations were still in progress. Indeed, during the same meet-
ing at which that notice was served, the parties agreed to meet and resume the
negotiations on the following day. In that state of the record, and being mindful
that "the burden of going forward with the evidence to justify the lockout rests on
the Respondent," I find, as the Board did in Quaker State, "that the Respondent did
not have reasonable grounds for believing that the Union would call a sudden
strike to the detriment of the Respondent's vital operating units, and that by
threatening to curtail and actually curtailing its operations with the consequent
reduction in the employees' workweek, the Respondent coerced employees in the
exercise of their bargaining rights in violation of Section 8(a)(1) of the Act and
discriminated against them within the meaning of Section 8(a) (3) of the Act."
I need not decide whether the written extension of the 60-day notice proffered by
Hollyfield would as effectively proscribe a quickie strike as would the written
assurances demanded by Foster on June 4.2 If it had the effect contended for by
the Union, then it must be concluded that the lockout was illegally imposed. If,
on the other hand, it should be concluded that it did not legally have that effect,
the ultimate issue of determining whether on all the facts and ciicunistances existing
here Respondent had "reasonable grounds for believing that a strike was threatened
or imminent" still remains. On that issue, I find, as noted above, that Respondent
had no reasonable ground to so believe. Instead, I find that the lockout was im-
posed to force the Union and the employees to abandon their contract demands and
to accede to those proposed by Respondent.
The only reason advanced by Respondent during the negotiations for its fear that
the Union might impose a strike without adequate prior notice to Respondent was
stated by Foster on Tuesday, June 3, when he asked Hollyfield if the Union had not
taken a strike vote on Wednesday of the previous week. Hollyfield immediately
assured him that no such vote had been taken, that none was anticipated, and he
1Reaffirmed recently in Great Falls Employers' Counsel, Inc, et at., 123 NLRB 974.
2 I am, however, convinced and find that it was sincerely so intended by Hollyfield.
HERCULES POWDER COMPANY 343
repeated that assurance on June 4. Furthermore, the record is conclusive that no
such vote had been taken during the entire course of the negotiations.
Nor was there anything in the existing circumstances, or in the bargaining history
of the parties, which would lead Respondent to reasonably believe that the Union
would impose a strike without notice. Indeed, the experience of the parties in
June 1954, heretofore detailed, pointedly indicate that Respondent had no ground
to believe that the allegedly feared and precipitate action would be taken. Except for
the 1954 experience there were no work stoppages of any kind imposed by the
Union on Respondent from 1950 when it first became the collective-bargaining agent
until after the June 1958 contract was signed .3
Respondent, in justification of its demands of June 4, sought also to establish
that other local unions within the jurisdiction of Region 29 of District 50 had engaged
in "wildcat" strikes. How the Union's written assurances that 72 hours' notice of
intention to strike would avoid "wildcat" strikes was not explained. In any event,
no contention was made that District 50 did not do everything within its power to
avoid and terminate such wildcat strikes. Indeed Respondent's counsel freely ad-
mitted that District 50 usually did "their best . in getting them stopped" and
that in all his dealings with Hollyfield he found him "most cooperative in those
situations." 4
There remains for consideration the contentions of Respondent that all of the
110 Charging Parties herein were in fact "fronting" for the Union, a labor organi-
zation not in compliance with Section 9(f), (g), and (h) of the Act, and that
the Board had illegally solicited the filing of these charges. The pertinent facts with
reference to these contentions may be summarized as follows:
On November 28, 1958, one T. Z Parsons, an individual, filed a charge in the
Board's Regional Office at Atlanta, Georgia, in Case No. 10-CA-3803, alleging
violations of Section 8(a)(1), (3), and (5) of the Act. The charge alleged that it
was also filed in behalf of the 109 other employees of Respondent named in Appendix
B hereto attached whose written authorizations were attached to that charge. Insofar
as the record discloses, there was then no information in the possession of the Board's
Regional Office that Parsons was an official of the Union, or that he was acting in any
capacity other than as an individual employee, and as authorized attorney-in-fact for
the other individual employees. However, the Board agent who received the charge
noticed its departure from the office policy which requires that, except where a labor
organization is the charging party, separate charges should be filed by each individual
whose discriminatory discharge is alleged.
Since the affected individuals had evidenced their desire to invoke the Board's
processes in order to remedy the alleged unfair labor practices, and since only a
matter of days remained during which individual charges could be filed and served
within the limitation period provided by Section 10(b) of the Act, it was decided
that they should be contacted by letter for the purpose of securing their individual
charges. By that letter, dated the same day, Friday, November 28, they were re-
quested to report to the local Board office in Birmingham on either the following
Monday, December 1, or Tuesday, December 2, 1958. Parsons was then contacted
for any assistance he could offer in expediting this matter. It was at this time, either
December 1 or 2, that Parsons disclosed that he was president of Local 13493,
District 50, UMW. Because of the "fronting" problem thus presented with respect
to the Section 8(a)(5) allegation in the charge filed in Case No. 10-CA-3803, a
withdrawal of that charge was solicited and secured. Individual charges in cases
Nos. 10-CA-3809 through 10-CA-3918 were then secured from all individuals who
responded to the letter. Parsons, acting pursuant to his aforementioned authority,
filed some of these charges as attorney-in-fact for a number of individuals who were
unable to appear and file in person before the limitation had run.
Respondent, in its brief, admits that "no investigation was made of [the] charge"
filed by Parsons in Case No. 10-CA-3803, and it is undisputed that no complaint
proceedings were ever instituted pursuant to that charge. The complaint before
3A brief, unauthorized work stoppage occurred in July 1958, more than a month after
the lockout. The union president, Parsons, made immediate efforts, in the presence of
Respondent's officials, to return the men to work, and Hollyfield promptly dispatched
three representatives for the same purpose. However, within 30 minutes, Respondent
notified the men that the plant was closed until further notice, thus effectively fore-
stalling the Union's responsible efforts to quickly end that work stoppage. The differences
were nevertheless adjusted and the men returned to complete the shift on the same day.
* See also the second paragraph of footnote 7 in Quaker State Oil Refining Corporation,
supra.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me is based on the 110 charges filed by the individual employees in Cases Nos.
10-CA-3809 to 10-CA-3918, inclusive . The fact distinguishes this case from
N.L.R.B. v. Happ Brothers Company, Inc., 196 F. 2d 195 (C.A. 5), and N L R.B.
v. Alside, Inc., 192 F. 2d 678 (C.A. 6), upon which Respondent relies. The dis-
tinction was recognized by the Board in Golden Rod Broilers , et al., 122 NLRB 1100,
where the Board in its analysis of Happ Brothers and Alside noted that "the charges
in those cases were filed by officers of the non-complying union on behalf of a num-
ber of employees other than the charging parties themselves . The charges filed in
this case , however, involved only the individual complainants . See N.L.R.B. v.
Augusta Chemical Co., 187 F. 2d 63 (C.A. 5)." And the Board and the courts
have consistently held that individual employees may assert their rights before the
Board without regard to the filing requirements imposed upon their labor organiza-
tion by the Act.
Though the record discloses that all of the Charging Parties were members of the
Union , that the filing of individual charges was discussed at a union meeting, and
that union officials gave assistance in the filing and service of these charges, these
facts do not require a dismissal of the pending proceeding . As members of the
Union , presumably paying dues thereto, they were entitled to the services of its
officers in any matter arising out of their employment relationship with Respondent.
Failure of the labor organization to comply with Section 9 (f), (g), and ( h) of the
Act was never intended to take away rights guaranteed by Section 7 thereof. On
the record made here , I find that the Charging Parties were immediately concerned
with their own individual rights as employees, and that their relationship with the
Union was not such as to constitute them agents or "fronts " of that organization.
See Atlantic Freight Lines, Incorporated , 117 NLRB 464, 473, and cases cited therein;
David G. Leach and Doyle H. Wallace d/b/a Brookville Glove Company, 114 NLRB
213, enfd . 234 F. 2d 400 (C.A. 3).
Equally without merit is Respondent 's contention that the complaint should be
dismissed because the charges on which it is based were illegally "solicited" by the
Board. The only suggestion in the record which might prompt such an accusation
is contained in the Board's letter of November 28 to the Charging Parties herein
that they report at the Birmingham office "with reference to charges filed against"
Respondent . As previously found , the charge referred to was not processed for one
reason only-because of a policy which demanded that where charges alleging
discrimination are filed, except where a labor organization is the charging party, each
individual employee must file a separate charge. The need for, or the wisdom of,
that policy is not for me to determine .5 It is sufficient for me to find that it was
only because of that policy that the November 28 letter was sent Having been in-
formed through a legal charge that 110 employees claimed that they were discrim-
inatorily discharged in violation of the Act, and noting that unless the Board's
aforesaid policy was immediately complied with the charge of these 110 employees
would be forever barred , Board personnel would have been derelict in the perform-
ance of their duty had they not pursued the matter in the manner in which it was
pursued.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take
certain affirmative action which I find necessary to effectuate the policies of the Act.
I have found that Respondent unlawfully laid off and reduced the workweek of
its employees beginning June 5, 1958. On June 13, 1958, Respondent began to
reinstate its employees and, so far as appears, all employees affected by the layoff
have been reinstated. I shall therefore not recommend reinstatement of any
employee. However, I shall recommend that Respondent make whole each of the
laid-off employees listed in Appendix B attached hereto for any loss of pay he may
5 During the bearing Respondent's counsel "frankly" expressed the feeling "that It
was only an enthusiasm over statistics with the Tenth Regional office that caused them
to solicit these 110 people."
HERCULES POWDER COMPANY 345
have suffered by reason of his unlawful layoff during the period from the date of
his layoff to the date of his actual reinstatement by payment to him of a sum of
money equal to that which he would normally have earned as wages during such
period, less his net earnings during that period, such sums to be computed in accord-
ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. I
shall also recommend that Respondent, upon request, make available to the Board
or its agents, for examination and copying, all payroll and other records necessary
to enable the Board to analyze and compute the amounts of backpay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By its partial plant shutdown, lockout of its employees, and reduction of their
workweek, Respondent has discriminated in regard to the hire and tenure of em-
ployment of its employees, thereby discouraging membership in their labor organi-
zation, and thereby has engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
2. By the above conduct, which is and has been interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX B
James W. Abernathy D. B. Gamble V. A. Miller
Philip Antonio Tony J. Giglio J. W. Moore
Cariebe Armstrong H. A. Gilbert Cecil W. Morris
A. J. Railey J. W. Glasgow W. C. Oglesby
Carl Barns T. W. Glover R. H. Orange
H. K. Bearden H. G. Goldston M. E. Parsons
Sidney R. Bearden W. M. Green M. H. Parsons
Claude Bedford, Jr. B. J Gregg Troy C. Parsons
G. N. Bennett M. M. Hardy T. Z. Parsons
Joe Bond R. M. Hitt N. C. Peoples
J. M Bonds Oscar Holt Wesley Ridlespurge
C. G. Boothe Ralph Hopkins W. G. Riley
A. W. Boswell W. B Howard J. M. Robertson
I. N. Brantley Woody G. Howell Earl L. Roper
L. L. Brantley Dewey Howton L. R. Rosser
George L. Bratton J. S. Hubbard, Jr. T. T. Salter
Willie M Buckner I. E. Johnson, Jr. L G. Sanderson
J. C. Caffee B. M. Jones B. G. Sauls
E. G. Carroll John Jordan W. L. Seale
J. C. Carroll J. T. Kaetz H. N. Shoemaker
W. P. Chapman G. F. Knox Edward R. Small
M. H. Clark R. L. Knox L. R. Smith
R. H. Colvard W. A. Knox W. M. Smith
C. H. Crotwell H. W. Kornegay D. S. Stacy
J. E. Crotwell L. E. Kornegay J. E. Stewart
R. C. Cumming Robert Kornegay, Jr. W. N. Stinnett
0. K Curren R.J Lawrence E. L. Townsend
Carson Dabbs M. J. Lucas C. A. Trussell
F. O. Dark David Manderson, Jr. O. W. Wages
J. C. Davis H. C. Marchant J. W. Walden
A. A. Diffley S. E Marchant H. E Wilson
W C. Doig Joe Mason, Jr. E. H. Wilson
J. R. Dunn P. W. Mason T. L. Wilson
J. T. Durrett A. C. McConnell, Jr. J. E. Wright
Roger F. Flynn T. G Medders T. C. Wright
J. C. Fountain J. E. Middlebrooks Joe G. Hereford, Jr.
Alvin Fromhold G. M. Miller