Johns-Manville Products Corp.

National Labor Relations Board - Board Decisions

May 6, 1976

223 N.L.R.B. 1317 (N.L.R.B. 1976)

JOHNS-MANVILLE PRODUCTS 1317
Johns-Manville Products Corporation and Oil, Chem-
ical and Atomic Workers International Union,
AFL-CIO. Case 15-CA-5238
May 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On April 10, 1975, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs)
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order in its entirety.
Respondent is engaged in New Orleans in the
manufacture of dried felt, which is a crude form of
paper used as a base for asphalt roofing products.
The Union was certified in 1964, and since that time
the parties have entered into four successive 2-year
collective-bargaining agreements, the latest of which
terminated on October 12, 1973. The latest contract
negotiations began on September 11, following the
Union's earlier 60-day notice of termination. Before
and after this notice Respondent observed an unusu-
al number of paper breaks, found a considerable
number of pieces of scrap metal in conveyors, and
improper adjustments with the dryers, causing dis-
ruptions to production. Respondent requested the
Union's assistance in correcting the situation, but the
Union took no affirmative action. Respondent be-
came increasingly concerned about the above-de-
scribed incidents and decided that, if they continued,
the operation at this particular plant could not sus-
tain itself . The plant was shut down on October 12
and remained closed until about October 22. In the
interim Respondent maintained a complement of
employees whose duties were to inspect, maintain,
and repair all of its machinery to ascertain any mal-
function in order to determine whether or not it was
machine failure which would cause breaks in its pa-
per.
On October 22 Respondent reopened the plant but
1 As the record and the briefs adequately present the positions of the
parties, Respondents ' request for oral argument is hereby denied.
on that date several machines had broken down and
Respondent again noticed innumerable paper
breaks; and, on this particular day, production
dropped from a normal daily production of 110 tons
to about 13-1/2 tons. At this point, Respondent de-
cided that it could no longer sustain operations in the
plant without endangering lives and property and de-
cided to lay off its production workers that day.
Respondent met with the Union and employees on
October 31 and informed them that the plant would
remain closed until a contract was reached. On No-
vember 14, 1973, Respondent submitted its last pro-
posal which provided for a 3-year contract, a wage
increase, and other benefits, plus a no-strike clause,
no slowdown, no work stoppage, and no-lockout pro-
visions. Respondent resumed production on Novem-
ber 14 using salaried personnel from other plants,
supervisors, and temporary employees, until April 7,
1974.
. The record shows that during the same period Re-
spondent experienced a high demand for roofing ma-
terials which it was not able to supply, thus creating
the fear of loss of customers.
In March 1974, Respondent considered the feasi-
bility of hiring permanent replacements. Before
doing so, Respondent's officials met with the Union,
as they had been doing in the interim period, to at-
tempt to resolve the difficulties at the New Orleans
plant. No resolution came about, so Respondent
went ahead with plans to hire permanent replace-
ments. Respondent did not want to rehire its own
employees in view of the history of sabotage and dis-
ruptions during the other periods of negotiations and
the fact that its employee complement at that time
was not producing efficiently, it was losing a substan-
tial amount of sales, and the operation at New Orle-
ans was having an adverse affect on other plants op-
erated by Respondent. The first replacements were
hired in April 1974, and by about mid-June 1974, the
entire work force was replaced.
We agree with the Administrative Law Judge, for
the reasons more fully set forth in his Decision, that
Respondent's unilateral act of hiring permanent re-
placements on April 8, 1974, "without consulting or
notifying the Union or the employees of such inten-
tion . . . rendered more than a slight adverse effect
upon the employees' protected rights, as compared
with Respondent's legitimate business purpose in its
lockout bargaining leverage" and this conduct violat-
ed Section 8(a)(3) of the Act. The permanent replace-
ment of all unit employees was also a violation of
Section 8(a)(5), as it completely destroyed the bar-
gaining unit. In the circumstances herein and in the
complete absence of any unfair labor practices on
the part of the Union, the employees and/or their
223 NLRB No. 189
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawfully designated representative have the right, as a
matter of law, to engage in effective and responsible
negotiations over their terms and conditions of em-
ployment. When Respondent elected to replace them
permanently, without any warning, consultation, or
negotiation, such action destroyed that very right it-
self, and constituted a withdrawal of recognition of
their duly designated bargaining representative in vi-
olation of Section 8(a)(5) and (1) of the Act. We also
agree with the Administrative Law Judge that the
evidence in this record is insufficient to support a
conclusion and finding that Respondent's employees
engaged in an in -plant strike or in concerted improp-
er conduct so as to enable it to replace or discharge
its entire complement of production employees.
Thus, we agree with the Administrative Law Judge
that the failure of the Respondent to conduct an in-
vestigation to ascertain responsibility for such dis-
ruptive activities is sufficient to warrant a finding
that Respondent did not have reasonable and suffi-
cient objective considerations upon which to con-
clude that "any or all of its employees" were engaged
in improper conduct so as to justify discharge of all
production employees.'
In affirming the conclusions of the Administrative
Law Judge in their entirety, we note that he specifi-
cally dealt with the issue of the effects of the legality
of Respondent's lockout and the utilization of tem-
porary employees, from about November 14, 1973,
until April 8, 1974, when it began the permanent re-
placement of its entire work force . In this respect, the
Administrative Law Judge found that, since the col-
lective bargaining of the parties was at an impasse in
October 1973, Respondent could legally shut down
its plant and lock out its employees because it was
done for a legitimate and substantial business pur-
pose without antiunion motivation. We agree with
the Administrative Law Judge, contrary to our dis-
senting colleague, that the lockout and subsequent
resumption of operations on November 14, 1973, on
a reduced scale with temporary employees not cov-
ered by the expired contract, which were transferred
from some of its other operations, and others which
were secured from an independent contractor, did
not violate Section 8(a)(3) and (1) of the Act, for
these same reasons fully set forth in our decision in
Ottawa Silica Company.3 The Administrative Law
Judge found, and we again agree, that "such opera-
tion is legally permissible because the evidence of its
impact upon the exercise of the employees' protected
rights was slight, as compared to the Employer's le-
gitimate use of the lockout and continued operation
with temporary replacements."
Respondent has adequately demonstrated that the
lockout was not based upon antiunion considerations
but was rather based upon legitimate and substantial
business reasons. The lockout was intended to and
did serve a legitimate business end. Respondent had
a reasonable apprehension that if it resumed normal
business production with its own employees substan-
tial disruptions in its productive process would soon
take place against its substantial economic interest
and those of its customers and to the great detriment
of the New Orleans operation. This lockout was legal
because of the overriding business purposes and be-
cause of the vital interest and convenience of the
Company. Respondent had a good-faith anticipation
of almost simultaneous disruptive action by its em-
ployees. The lockout and the use of temporary em-
ployees were not designed to destroy the employees'
rights or the capacity of the Union to represent them.
Respondent's action was designed solely to further
legitimate business interests and it has established by
a preponderance of the probative and substantial evi-
dence that it had no antiunion motivation in what it
did but rather it was motivated solely by legitimate
objectives.4 Certainly Respondent was faced with un-
usual operational problems and hazards and most
probable and irreplaceable economic loss had it re-
sumed operating the plant without completing an
agreement with the Union. Having found therefore
that following a bargaining impasse an employer has
the right to replace locked-out employees tempo-
rarily and continue operations, absent an antiunion
motivation, an employer does not violate the Act by
hiring temporary replacements to continue opera-
tions during an otherwise lawful lockout.
Accordingly, we adopt the Administrative Law
Judge's recommended Order in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Johns-Manville Products
Corporation, New Orleans, Louisiana, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
2 We agree with the Administrative Law Judge that Raleigh Water Heater
Mfg. Co.. Inc., 136 NLRB 76 (1962 ). and Masser Gin and Machine Works,
Inc.. 78 NLRB 189 (1948 ), relied on by the Respondent . are distinguishable,
as is N.LR.B. v. Fansteel Metallurgical Corp.. 306 U.S. 240 ( 1939).
197 NLRB 449 (1972).
MEMBER JENKINS , dissenting in part:
I join my colleagues in finding that Respondent
violated Section 8(a)(3), (5), and (1) of the Act by
WGN of Colorado. Inc.. 199 NLRB 1051 1056. 1057 (1972).
JOHNS-MANVILLE PRODUCTS 1319
permanently replacing its entire complement of
locked-out unit employees. However, contrary to my
colleagues, I would find in accord with my dissenting
opinions in Ottawa Silica Company, 197 NLRB 449
(1972), and Inter Collegiate Press, Graphic Arts Divi-
sion-Sargent Welch Scientific Co., 199 NLRB 177
(1972), that Respondent violated Section 8(a)(1) and
(3) by operating its plant with temporary replace-
ments for its locked-out employees from November
1973 until April 1974, when it discriminatorily re-
placed the locked-out employees with permanent em-
ployees.
The Union was certified on October 27, 1964, as
the exclusive collective-bargaining representative of
the unit employees. Since that time, the parties have
entered into four successive 2-year collective-bar-
gaining agreements from October 12, 1965, through
October 12, 1973. On September 11, 1973, the parties
commenced negotiations for a new contract. Several
meetings were held but no agreement was reached.
On October 31, 1973, Respondent informed the
Union that the plant would be shut down until the
contract could be negotiated and that the Respon-
dent was not willing to let the unit employees contin-
ue to work without a contract. On that day, Respon-
dent locked out all members of the bargaining unit.
Notwithstanding the statement that the plant would
be shut down until a contract could be negotiated,
Respondent resumed operations within I or 2 weeks
of the October 31 plant closure, utilizing approxi-
mately 35 salaried personnel from various corporate
locations and a contract labor force consisting of ap-
proximately 32 employees.5
The Administrative Law Judge found that the use
of temporary employees during the lockout was le-
gally permissible "because I find the evidence of its
impact upon the exercise of the employees' protected
rights to be slight, as compared to the employer's
legitimate use of the lockout and continued opera-
tion with temporary replacements," citing Inter Col-
legiate Press, supra. Member Fanning and I dissented
in that case as well as in Ottawa Silica Company, su-
pra, and no worthwhile purpose would be served by a
repetition of the analysis enunciated in those opin-
ions. It suffices at this point to state that the issue
posed in the instant case was given judicial attention
and decided in Inland Trucking Co. and Wesley Meil-
ahn, Co-partners d/b/a Oshkosh Ready-Mix Co., et
al. v. N.L.R.B., 440 F.2d 562 (C.A. 7, 1971), cert.
denied 404 U.S. 858 (1971). It is significant that the
Supreme Court denied on appeal from the circuit
court's decision, and that a majority of the Board has
5 Several of these temporary employees became permanent employees of
Respondent when it was decided to replace the locked-out employees.
never in any case expressed an unwillingness to abide
by that decision. In accordance with the Court's rea-
soning there, I would find that Respondent's use of
replacements for a prolonged period was inherently
destructive of the rights of its locked-out employees
and therefore violative of Section 8(a)(1) and (3)
without regard to any claim that such conduct was
motivated by business considerations.
However, even if the test of business justification is
applied it is clear that Respondent has not succeeded
in presenting evidence of legitimate and substantial
business justification for its continued operation dur-
ing the lockout. This is certainly not the type of situa-
tion where there was a defensive lockout to avoid
injury to customer relations caused by a strike occur-
ring while unfinished work was in the shop,' disrup-
tion of general operations caused by unexpected in-
termittent work stoppage,.' spoilage of materials by
sudden strike,' or threats to the preservation of a
multiemployer bargaining unit.9 Indeed, there is no
evidence in the instant record that the Union threat-
ened to strike. Moreover, with respect to
Respondent's alleged fear of disruptions, the Admin-
istrative Law Judge specifically found that the evi-
dence fails to establish that the Union and/or any
plant employee, independently or through a conspi-
racy, actually engaged in sabotage or disruptive ac-
tivities. The Administrative Law Judge further noted
that the activities could have been carried out by a
single individual, acting on his own, and that the
Union emphatically denied that its unit employees
were engaged in disruptive activities at the plant.
Thus my colleagues' conclusionary finding that
Respondent's conduct was justified by business con-
siderations is based on no more than Respondent's
desire to continue operations. In my view, this posi-
tion is untenable, and I would find that Respondent
has presented no evidence of legitimate and substan-
tial business justification for its discriminatory con-
duct.10
Finally, Respondent's actions with respect to the
lockout and the reopening of the plant have no rela-
tion to legitimate business purposes but rather dem-
onstrate animus towards the represented unit em-
ployees. As previously stated, Respondent
announced that it would shut the plant down until a
contract was reached. Despite this rather definitive
statement, the plant closure lasted only 1 or 2 weeks.
This rapid resumption of the operations indicates
6 Betts Cadillac Olds, Inc., 96 NLRB 268 (1951).
7 International Shoe Company, 93 N LRB 907 (1951).
8 Duluth Bottling Association, 48 NLRB 1335 (1943).
9 N. L. R. B. v. Truck Drivers Local Union No. 449 International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A FL [Buf-
falo Linen Supply Co.], 353 U.S. 87 (1957).
10 See N.L.R.B. v. Great Dane Trailers, Inc., 388: U.S. 26, 34 (1967).
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent 's real intention was to close its plant
only to members of the bargaining unit. Further, per-
manent replacements for the locked-out employees
were hired in April 1974, and the record indicates
that Respondent discussed the possibility of replac-
ing the unit employees as early as January 1974, de-
spite the fact that the Union notified Respondent
that the union employees were willing to work with-
out a contract. Furthermore, the record in the instant
case lacks many of the alleged mitigating circum-
stances that existed in Inter Collegiate Press. In that
case , the employer made it clear that the replace-
ments were to be used only for the duration of the
strike and the employer offered to abandon the lock-
out and the use of temporary help if the Union
agreed not to strike. No such conciliatory actions on
the part of the Respondent are present in the instant
case.
As I have already stated, I would find that
Respondent's conduct was not only inherently de-
structive of protected employee rights, but was also
without sufficient economic justification. According-
ly, I would find that Respondent's lockout and con-
comitant operation with temporary replacements
violated the Act.
DECISION
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Delaware, with a manu-
facturing plant located in New Orleans, Louisiana (the
only facility involved herein), where it is engaged in the
manufacture of asphalt shingles and rolled roofing.
During the past 12 months, a representative period, Re-
spondent purchased and received goods and materials val-
ued in excess of $50,000, which were shipped directly to
Respondent in the State of Louisiana from points located
outside the State of Louisiana, and correspondingly, during
the same period, Respondent shipped products valued in
excess of $50,000 from its New Orleans, Louisiana, plant
directly to customers located outside the State of Louisi-
ana.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, herein called the Union, is now and has been at
all times material, a labor organization within the meaning
of Section 2(5) of the Act.
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
an original and an amended charge of unfair labor practic-
es filed on April 22 and 25, and July 31, 1974, respectively,
Ernest J . Rousselle , International representative for the
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, herein called the Union , against Johns-Man-
ville Products Corporation , herein called Respondent, the
General Counsel of the National Labor Relations Board
issued an original and an amended complaint against Re-
spondent on August 5 and October 9, 1974, respectively,
alleging that Respondent had engaged in unfair labor prac-
tices in violation of Sections 8(axl), (3), and (5) and 2(6)
and (7) of the National Labor Relations Act, as amended,
herein called the Act.
The Respondent filed an answer and an amended an-
swer on August 9 and October 15, 1974, respectively, deny-
ing that it engaged in any unfair labor practices in viola-
tion of the Act.
The hearing in the above matter was held before me at
New Orleans, Louisiana, on December 4, 5, and 6, 1974.
Briefs have been received from counsel for the Respondent
and counsel for the General Counsel , respectively, and
have been carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses , I hereby make the following:
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the Dispute
The Respondent manufactures an organic dried felt,
which is a crude form of paper used as the base for asphalt
roofing products. After this process is completed the paper
is then sent to the Marrero plant of Johns -Manville in Sa-
vannah , Georgia, and Los Angeles , California, where the
asphalt processing is carried on. However , as far as the
plant in question is concerned, the end product is the result
of a process whereby paper is initially mixed with water to
a slurry, and then to that slurry is added a slurry made up
of water and pulpwood. The then combined slurry is
ground to a certain degree then passed on to a mesh wire,
flattened, and compressed to squeeze out moisture from 80
percent to approximately 55 or 60 percent, until the sheet is
able to sustain its own weight. It is then processed across a
conveyor belt onto dryer drums or rollers where it becomes
drier and drier and all of the moisture is removed to 4 or 5
percent. It is then wound on a bull reel and cut into rolls of
36 inches after which it is prepared for shipment..
The paper sheets can be broken during the manufactur-
ing process through a lack of proper adjustment between
the drier sections of the revolutions per minute which, if
not properly done, can be broken as a result of vibrations
and tensions between the sections. Paper breaks may also
occur as a result of being physically struck with the hand
or an object. The paper can be broken also as a result of
variations in the formula of the pulpwood slurry. In other
words, the end product can be damaged or broken at near-
JOHNS-MANVILLE PRODUCTS 1321
ly any point along the pressing route or by improper for-
mula mixtures or adjustments in the revolutions of the pro-
cessing machinery.
The bargaining history of the parties shows that the
locked-out employees constitute the appropriate unit for
purposes of collective bargaining, for which the Union was
properly certified the exclusive collective-bargaining repre-
sentative on October 27, 1964. Since that time, the parties
have entered into four successive 2-year collective-bargain-
ing agreements from October 12, 1965, through October
12, 1973.
However, prior to the expiration of its collective-bar-
gaining agreement on October 12, 1973, the parties (Re-
spondent and the Union) commenced negotiations for a
new agreement on September 11, 1973. Nevertheless, after
several bargaining sessions the current bargaining agree-
ment expired on October 12 without the parties having
reached a new agreement. Meanwhile, since September
1973, Respondent had complained to the union representa-
tive that it was experiencing an excessive amount of paper
breaks in its manufacturing process and had been finding a
considerable number of scrap metal in the conveyors and
other manufacturing machinery, causing interruptions in
production and downtime and resulting in substantial costs
and losses in profits. Since these occurrences not only con-
tinued but became worse on October 22 or 23, 1973, the
Respondent said it issued a notice to its production em-
ployees advising them of the shutdown of the plant on Oc-
tober 31, 1973. The parties continued to negotiate without
reaching a bargaining agreement and the Respondent re-
opened the plant with temporary employees in mid-No-
vember 1973, which temporary employees were made per-
manent employees around April 1974, while the regular
employees in the Union were still locked out.
The Respondent contends that it shut down its plant to
avoid further damage to its manufacturing equipment and
for the safety of plant personnel or persons in the vicinity;
and that it ultimately employed permanent replacements in
order to save its business operations at the plant. The
Union contends that Respondent's hiring of permanent re-
placements was discriminatory and had a substantial dis-
couraging effect on union membership and activities, in
violation of Section 8(a)(3), (1), and (5) of the Act.'
B. The Negotiations out of which the Current Dispute Arose
A composite of the credible evidence of record estab-
lished that the Union and Respondent commenced negoti-
ations for a new collective-bargaining agreement on Sep-
tember 11, 1973, with Ernest J. Rousselle, representative
for the Union and spokesman for the employees, and Dar-
rell Wells, employee relations director for the Respondent,
as first-time spokesman for the Respondent in negotiating
sessions . The union committee consisted of Mack Jordan,
president of the local union; Donald Hall, chairman of
GM group; Johnson, Sid Meggs, Charlie Ebeyer, and Ray-
mond Haisch. At this time the Union presented 19 propos-
als which it explained and held discussions on 2 of such
The facts set forth above are undisputed in the record.
items . The Company then stated that it would have a set of
proposals to present at the next meeting on September 19.
'On September 19 the bargaining parties met, during
which time the Respondent presented six proposals and
had agreed to two or three of the Union's proposals. How-
ever, the Respondent proposed deleting the language in the
present contract which required it to train employees in the
maintenance department to do mechanic work and prohib-
ited it from hiring mechanics from the outside. Respondent
contended that the lack of sufficiently trained maintenance
people was affecting its maximum productivity.
The Union opposed this change because it contended
that it would affect the seniority rights of some employees
with 25 or 30 years' seniority by layoffs or reduction in
force because of lack of qualifications, wherein such per-
sons could be trained by- Respondent and retained in em-
ployment. The Respondent also proposed a 3-year con-
tract, rather than a 2-year contract as had been previously
entered into. The Union was proposing a 1-year contract.
The parties agreed to meet again on September 25, 1973.
However, on September 19, 1973, the Respondent posted a
notice on its bulletin board at the plant revealing, in large
measure, the contents of the September 19 meeting, and
more particularly, describing the issue on the change of
language in the present contract as follows:
As your Plant Manager I can honestly say that we
have reached a critical point in our maintenance pro-
gram. Our proposal is not double barreled with any
underlying motives. Our proposal is simply necessary
for our very existence. Contracting work out is not the
answer because that is costly to the Company and it
takes away from you people.
In addition, our proposal does not threaten the pres-
ent seniority provisions. Your Union bargaining com-
mittee feels that the Company will hire a skilled main-
tenance man for example, and then if a layoff would
occur, the Company would claim that the newly hired
man should stay because he is more qualified than a
senior employee thereby forcing the senior employee
on layoff. This position is exactly what I meant when
I said our proposal is not "double barreled." There is
no way we intend to deny or not recognize your se-
niority. Furthermore, there is no reasonable man who
would uphold the Company where the Company laid
off, for example, a mechanic with 15 years of Felt Mill
experience and seniority and kept a mechanic with 3
years of Felt Mill experience and seniority. Even if the
qualifications were "approximately equal" the present
language states seniority will be the determining factor
and therefore you are protected. Your bargaining
committee also stated we have not trained in the past
and we are not training now. I have already talked
about that point. We simply need immediate relief in
the maintenance area-more help and more skills
now.
In this notice the Respondent also advised that it was
proposing to reduce the 30 days to 5 days for the time limit
for filing a grievance; to revise the language concerning
strikes and lockouts; and that the collective-bargaining
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement should be for 3 years to provide flexibility and
to allow for planning for long-term improvements. It also
advised that the next negotiating session was scheduled for
October 3, 1973
The parties met in negotiations session again on Septem-
ber 25, 1973, wherein they reached an agreement on
Company's proposal number l and held discussions re-
garding the problem of training maintenance employees, a
3-year agreement, and the deletion of the contract provi-
sion dealing with strike and lockout. When the Union
asked the Respondent why did it want to delete the lan-
guage on the no-strike, no-lockout agreement, it simply re-
plied that they wanted to take the garbage out of the con-
tract; that this provision was not needed. The Union again
reiterated its concern to the Respondent on the matter of
Respondent hiring maintenance people off the street who
might subsequently replace older employees in the event of
a layoff. The Company's position was that it needed
trained men "now" and not in the "future." The Union
contended that since Respondent had mechanics and me-
chanic helpers, the mechanic helpers could progress into
the mechanic job when such a job became available, but
that it had no electricians, no electrician helpers, no ma-
chinist helpers, and no welder helpers, and therefore, the
Company was obligated to train people for these fobs. The
Company maintained its position for a 3-year agreement
and the parties agreed to meet again on October 3, 1973.
Prior to the scheduled October 3 meeting, Rousselle said
he was informed by Jordan that Weil had accused him and
members of the Union of participating in disruption of
operations of the plant (the breaking of paper and putting
foreign materials into its machinery process). When the
parties met on October 3, 1973, Rousselle said he expressed
his concern about this accusation and further explained to
company representatives that several months earlier, the
president of the local union had brought in a piece of metal
approximately 6 inches wide and 9 to 10 inches long which
he described and took to the Respondent, advising that the
metal was found in the pulp which was purchased from the
concern from which Respondent was purchasing its scrap
paper or wood chips; and that Weil then stated that Re-
spondent was purchasing paper chips from any place they
could get it and that Respondent was not accusing the em-
ployees of causing the disruptions in the operations as a
result of the foreign materials
Rousselle said he further advised company representa-
tives that he would not tolerate the employees participating
in any type of disruptive procedures. Then Wells said the
Respondent was not going to tolerate these disruptive acts
and that the Respondent had posted some safety regula-
tion signs on the board in the plant which the employees
had torn down. The parties did not have any discussions
on the no-strike, no-lockout provision in the 1967, 1969,
nor the 1971 negotiations between the Respondent and the
Union. The parties then agreed to meet again on October
11, 1973.
The parties met on October Il at which time the Re-
spondent again proposed a deletion of the language relat-
ing to training of employees for maintenance and boiler-
house jobs, as well as the revision of the no-strike,
no-lockout provision; it proposed a wage increase of 17
percent across-the-board, each year for a 3-year agree-
ment; and it made some other proposals relative to service
pension credit. (See G.C. Exhs. 10 and 11). After counter-
proposals made by the Union which were unacceptable to
the Respondent, the parties could not reach an agreement
on a contract and they agreed that the utilization of a med-
iator might be helpful since the current contract expired on
the next day (October 12, 1973).
The parties succeeded in obtaining the services of Mr.
Bates, a mediator, on October 12, 1973. Mr. Bates had
assisted the parties in past negotiations. When the parties
could not reach an agreement with the assistance of the
mediator, the Company, through its spokesman, Wells (Re-
spondent), notified the Union that they were terminating
the agreement, that they would no longer honor the
Union's security provision and the arbitration procedures
or any other contractural obligations which they had previ-
ously adhered to. The Respondent subsequently reduced
its termination announcement to writing (G.C. Exh. 12)
Rousselle advised Respondent that the Union wanted the
opportunity to negotiate further prior to Respondent's ef-
fectuating the substance of its notification, and he further
advised Wells that he did not know whether Respondent
could legally and unilaterally revoke the Union's security
provisions but he would check into the matter with his
attorney. Wells then stated that he was not going to toler-
ate any slowdown or harassment and Respondent present-
ed the Union with the written notice (G.C. Exh. 12) which
Weil read as follows.
Dear Mr. Jordan and Mr. Rousselle:
As you know, under Article XXVI of our 1971-1973
contract, such agreement remained in full force and
effect to and including October 12, 1973.
This will serve to notify you that we are no longer
willing to continue to honor any contractual obliga-
tions whatever after midnight, October 12, 1973. We
will, of course, continue to negotiate with you con-
cerning wages and working conditions applicable dur-
ing the period prior to the execution of any new con-
tract and the terms of any new contract.
Since we will no longer have any contractual obliga-
tions, this will also serve to notify you of the follow-
ing:
1. Since Article III entitled Union security is no lon-
ger a contractual obligation, union membership is
no longer a condition of employment at this Plant
and in addition, we will no longer deduct union
dues and/or initiation fees from the paychecks of
any of our employees; and
2 We shall no longer refer disputes which cannot be
resolved between us to impartial third parties. This
includes without limitation, referral of certain dis-
putes to an impartial Industrial Engineering con-
cern pursuant to Article XVI, Section 69 of the old
contract and referral of general grievances to arbi-
tration pursuant to Article XV.
With regard to this paragraph, any action taken by the
Company will not be subject to arbitration at any fu-
JOHNS-MANVILLE PRODUCTS 1323
ture date if the Company's action is taken during the
period of time from midnight, October 12, 1973, until
a new agreement is signed by the parties.
As this meeting ended the parties did not agree on any
future meetings.
Subsequently the Union received a letter from the Re-
spondent advising it that the Respondent wanted to meet
with the Union's bargaining committee at 1 p.m. on Octo-
ber 31. Accompanying this letter was also a letter from the
Respondent to its employees calling a meeting of the em-
ployees at 2 p.m. on the same day (October 31) at Bud's
Flower Shop (G.C. Exh. 13) which read as follows:
The Company would like to discuss with the Union
Bargaining Committee matters concerning the imme-
diate future of the New Orleans Plant at 1:00 p.m.,
October 31, 1973 at the conference room at the plant.
Yours very truly,
/s/ DAW
D. A. Wells
Employee Relations Manager
With respect to the meeting held on October 31, 1973,
Rousselle testified as follows:
A. Mr. Wells came into the meeting and said that
the company had attempted to negotiate unsuccessful-
ly, that the Union had not responded meaningfully to
the Company's proposal of the 11th, that the Compa-
ny had experienced operational difficulties in '69, 71,
as a result the Company had made a decision to shut
the plant down until the contract could be negotiated.
The Company was not willing to let the people contin-
ue to work without a contract being in effect and the
Company was going to, at two o'clock that afternoon
make a similar presentation to the membership of the
Union.
I responded to Mr. Wells' statement that the Com-
pany had tried in '69 to circumvent the Committee by
going to the membership. I basically had no objections
to any management personnel speaking to the mem-
bers of that Local Union or any other Local that I
personally represented.
I felt that the offer they made was inadequate and
that if he wanted an opportunity to speak to our peo-
ple and try to convince them they should accept such
a settlement I had no objections to it.'
Wells credibly testified that he advised the committee on
October 3, 1973, that the safety rules on the bulletin boards
were torn down; and that the lock on one of the bulletin
boards was broken and the safety rules removed. He also
testified that on the evening of August 23, 1973, Weil
called him and advised that the Respondent was experienc-
ing an unusual number of paper breaks and adjustments
with the dryers and requested that he (Wells) contact the
2 1 do not credit the latter testimony of Rousselle because I received the
impression that he was not accurate and was exaggerating about what Wells
said to the bargaining committee . Moreover, I believe and I credit Wells'
testimonial version of what he said because it was written and he read it.
Rousselle admitted Wells had a paper in front of him but he could not
dispute that it was the remarks made by Wells (Resp. Exh. 5).
necessary union officials and see if something could be
done to correct the situation. He thereupon called Rous-
selle that same evening and reported Weil's complaint to
him and advised him that the Respondent was not going to
continue to operate and make scrap; and that such con-
duct could only hurt negotiations if the activity continued.
Rousselle said he had not seen Mack Jordan or Donald
Hall fora few days but that he would check with them to
see what the problem was and get back to him. Rousselle
admitted at the hearing that he did not get back to Wells or
the Respondent.
The parties met again on October 11 at which time
Rousselle submitted an economic proposal to the Union
for a 3-year contract, a proposal to give Respondent free-
dom to hire maintenance people from the outside; and pro-
posal number 5 which was no-lockout, no-work stoppage
language. He continued to testify as follows:
A. With regard to Numbers 3 and 5, I emphasized,
I spent some time on Number 3, explaining that this
was an absolute must with regard to a settlement that
the company was expanding its capital program that
we needed more technical skills in the area of mainte-
nance, that we didn't feel that the inhouse mainte-
nance was of the caliber that could maintain this kind
of equipment.
I further stated that the vendors that was selling us
this equipment did not have a provision that allowed
for continuing maintenance on the equipment, thereby
requiring that we assume complete responsibility for
the maintenance of that equipment.
When Rousselle discussed Company's proposal number
5 dealing with the language regarding interruptions to
work, he advised that it would serve no useful purpose, that
the Union had to act in good faith and get the people back
to work without work stoppage within 48 hours; that there
would be no lockout and if there were a disagreement the
same could be submitted to and decided by some other
agency. The Union thereafter caucused until after lunch.
Rousselle then read from the Union's proposal but the par-
ties did not reach any further agreement. The parties met
again on October 12 and, although the Union appeared to
have made a proposal through the mediator which was re-
layed to the Respondent, the Respondent said that it was
unacceptable.
Thereafter the parties reconvened on the same day and
the Respondent through its plant manager, James Weil,
read and submitted General Counsel's Exhibit 12 to the
Union (Rousselle and Jordan); that Weil then stated that
the parties had met in five sessions in an attempt to reach
an agreement but had been unsuccessful; and that the Re-
spondent presented a proposal which the Union rejected
and that the parties had reached an impasse, to which
statement Rousselle said "that is correct." 3 Thereafter,
Rousselle responded by saying that he did not think there
was anything illegal about the checkoffs which the Compa-
ny had a right to deduct or not deduct, as well as not refer
any disputes arising under the grievance procedure to arbi-
3 1 credit Wells' undisputed testimony that Rousselle agreed that the par-
ties were at an impasse and because the evidence of record supports the
statement.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tration. He did question the legality of the Union's security
clause , which question he said he would turn over to the
International 's attorneys.
Wells further testified that he called Norman Gray, the
production manager at Denver, on October 13 and advised
him of the disruption in production in the plant which had
not terminated as a result of his talk with the union com-
mittee on October 3. Gray said that he had also been ad-
vised by Weil about the disruptions and said that they
(company officials) would have to keep an eye on the situa-
tion and, if it continued, a decision would be forthcoming.
Wells thereafter talked to Gray on October 23 when the
latter told him he was forced to shut down the plant once
again as a result of the pits being filled up and numerous
breaks in the machine paper during the beginning of the
shift on October 22, and that it looked as though it was
going to take several days to clean up. Gray said he would
get back to him after talking to Tappin, director of labor
relations for the Respondent, and review the continued
acts of sabotage in the plant.
On October 26 or 27, Gray called Wells and said he was
coming to New Orleans to speak to the members of the
Local and that he had asked Jim Weil to put together some
information over the years (1965 through the present time)
of tons lost in production as a result of the acts of sabotage,
as well as lost sales in dollars that occurred during negotia-
tion periods.
Gray came to New Orleans on October 31 and met and
talked with the members of the Local. Before Gray talked
to the membership, Wells gave a talk (Resp. Exh. 5) to the
union committee about 1 p.m., which was essentially the
same as Gray's talk (G.C. Exh. 14), the first part of which
was as follows:
History shows the atmosphere of bargaining at this
plant-
The 1969 negotiations, including eleven meetings,
resulted in eighteen days of lost production-some
1200 tons of felt and $1 million in sales . These losses
were the result of irresponsible acts of machine upset.
A direct attack on your job security.
In 1971, more of the same. 2700 tons of felt & 23
days lost because of willful acts to disrupt production.
These acts resulted in over $1.3 million in lost sales.
These lost sales translate directly to lost facility and
equipment investments at New Orleans.
There is an understandable reluctance to spend ad-
ditional capital to improve and expand a plant with an
unstable and unrealistic labor climate. What about
'73?
As you know the contract expired October 12.
No attempt was made to get agreement on a con-
tract extension . The willful acts of '69 and '71 proved
this would be meaningless.
The door was left open-both with you gentlemen
and the federal mediator for more bargaining.
History repeated itself. Acts to disrupt production
once again were perpetuated. Sheet breaks again filled
the pits.
At the conclusion of Gray's remarks at the 2 o'clock
meeting with the employees, Rousselle said to him, "You
let us go before and we will go again. We can hold out to
any amount of pressure you can give us. We will not settle
for less than other plants." Sidney Meggs said, "We don't
care if you shut the plant down for 6 months." As Gray
and Wells left the room he said that there was an outburst
of shouting. He also stated that he sent the letter (G.C.
Exh. 15) to the homes of all employees by registered mail
with a return receipt requested, outlining the decision and
reasons for shutting down the plant and the discontinua-
tion of employee benefits. This letter was mailed prior to
the October 31 meeting.4
C. Correlation of Disruptions in Production With Periods of
Collective-Bargaining History
James Weil, the highly knowledgeable and experienced
plant manager for the Respondent, testified that, although
the Respondent keeps records of its production and paper
breaks, it does so for only I year and then discards such
reports. He thereupon testified from his memory and from
reference to his personal diary in which he records statis-
tics with respect to problems of production and machine
downtime, so as to ascertain the causes of problems relat-
ing to production and nonproduction. In essence, Weil's
testimony revealed that during the negotiation periods
from November 16, 1964, to April 5, 1965, when a bargain-
ing agreement was reached; that from September 1967 to
late October 1969; that from September 1971 to November
1972 when a collective-bargaining agreement was reached;
and that from September 1973 until on or about October
23, 1973, the Respondent had experienced excessive paper
breaks and machine downtime accounting for considerable
losses in production.
He further testified that during the nonnegotiating inter-
vening periods from April 5, 1965, to September 1973, pa-
per breaks resumed their normal frequency rate of about
three a week, along with a corresponding decrease in ma-
chine downtime. He further stated that on December 4,
1971, an air supply valve was shut off to the consistency
regulator which determines the density of the slurry, and
he brought this matter and the problem of paper breaks to
the attention of Rousselle and asked the union committee
to intercede in trying to have the employees stop the exces-
sive number of paper breaks that were occurring. He also
stated that, in early October 1973, the Respondent found
that a 2,300-volt switch had been disconnected causing a
shutdown of the mill. During this same period there were
also some maladjustments in the dryer sections, as well as
on October 2, 1973, damage to a cylinder wire which ap-
peared to have been clearly and sharply cut in the direction
of going around the cylinder. The repair of that switch cost
the Respondent $4,000. He said although he has had 35
years' experience in the paper industry he had never ob-
served a damage of this type to a cylinder.
On October 2, 1973, Weil spoke with Mack Jordan, pres-
ident of the local union, in the presence of Pete Spinnato,
whereupon he asked him to intercede to see whether or not
° The testimonial versions of Rouselle, Wells, and Well regarding the sub-
stances of the negotiation sessions are, in pertinent parts, essentially free of
conflict and are therefore credited.
JOHNS-MANVILLE PRODUCTS 1325
anything could be done about the individual employees
causing lost time due to tampering with equipment; that
Jordan replied that "We got a bunch of radicals down
there and I can't do anything with them";5 that he (Weil)
went further and accused Jordan's group of taking cheap
shots by tampering with equipment and causing lost time.
These verbal exchanges resulted in an argument between
himself and Jordan, who did not respond. He acknowl-
edged that during the meeting of October 3, Rousselle ad-
vised him that he did not appreciate Respondent accusing
his group of misconduct (tampering with equipment and
production).
In early August one of the defibrators developed a vibra-
tion and unusual sound indicating that there was some for-
eign material being ground into the discs. When the ma-
chine was shut down and opened, damaged ball bearings
were located between the discs. On October 22 or 23, 1973,
all three defibrators were inoperable because heavy foreign
materials were lodged between the segments within the
equipment; that on the following morning the defibrators
were opened by the mechanics when foreign materials were
discovered lodged between a rotating disc and in the con-
veyors approaching the discs. By foreign materials he
meant large pieces of scrap metal , bearings , odds and ends
of metal and conveyor links. (All of which are described in
Resp. Exhs. 3 and 4) and it was observed by the Adminis-
trative Law Judge that some of the metal (three-quarter-
inch nuts) were distorted and mashed out of shape. Weil
identified 13 such pieces of scrap metal. He further identi-
fied five additional pieces of metal. The pieces of conveyor
links were identical to the conveyor links that were discard-
ed on top of one of the buildings of the plant when they are
no longer used to connect the conveyors. Also identified
were yellow railcar shocks used on the railcars in the plant.
They weigh about 5 to 7 pounds and were found on the
plate magnet at the base of the silo. The Respondent found
junk metal in the bin at the end of the conveyor system.
Respondent's Exhibits 3 and 4 are photographs of the
scrap metal shown in the various machines and conveyor
system. These photographs were taken on the morning of
October 23 by Bill Cathcart, the production superintendent
for Respondent and, according to Weil, represented what
he observed in the machinery on October 22 or 23.
On October 22, 1973, Weil said there were a series of
paper breaks resulting in the production of only 13-1/2
tons of paper as compared to a normal day's production of
110 to 120 rolls. He also identified photographs on
Respondent's Exhibit 3 showing the pits under the machine
filled with scrap paper. He also testified that, if certain
previously identified large pieces of scrap metal had
reached the grinding discs of the conveyors, there would
have been complete damage to the machine, complete dis-
integration, and possibly rupture to the external portion of
the machine (the housing). If such scrap metal penetrated
the housing, the result would or could have been an explo-
sion possibly causing fire as he had once observed such an
explosion of a defibrator. After discovering all of the scrap
metal in the machines and conveyors on October 23, Weil
said operation of the plant was shut down and production
workers were laid off. Some maintenance people were kept
in the plant to clean up the scrap from the pits and to open
up the defibrators to repair them and check out other
equipment. There was a layoff of production workers 2
weeks prior to October 22.
Plant Manager Weil further testified about normal peri-
odic machine downtime prior and subsequent to October
1973. However, he went on to explain that the metal parts
which got into the machinery during these times were
smaller metal objects, which did not cause great damage
and the times were not widespread in occurrence. For ex-
ample, he said there is nothing unusual about replacing the
discs, but the problems presented on October 23, 1973,
were due to the size of the metal items which also present-
ed the probability of a hazardous explosion. He admitted
that he did not know how any of the scrap metal items
exhibited in the hearing room got into the production sys-
tem. While the Company takes reports about downtime on
machine operations, he said such reports do not come to
him and the Respondent discards such reports in January
or February of each year. Although Respondent was hav-
ing some problems with its conveyors in the earlier part of
1973, he said it was not having such problems in October
1973.
Counsel for the General Counsel's rebuttal witness, Ray
Owen Stage, testified that, from the position of some pieces
of the scrap metal in the machinery, it appeared that they
had been placed on the hot screw; that disc jams are not
unusual and that he did not believe that some of the scrap
metal had worked its way through the small openings in
the machine process or that such scrap metal could cause
an explosion. On cross-examination, however, it was well
established that Stage did not even work on or around the
machinery in question; he could not give any estimate nor
was he in the position to estimate the number of paper
breaks or downtime of the machinery, or explain how such
metal parts got into the machinery.b
Rebuttal witness Angelo John St. Angelo's testimony
about the usual frequency of metal objects jamming the
discs was conflicting. He stated that it was not unusual to
replace discs about every 3 weeks; that the normal life of a
disc without the injections of foreign materials is about
3-1/2 weeks. He admitted, however, that the amount of
paper in the pits on October 23 was unusual and that he
had never seen such large pieces of metal in the machines
as are shown in Respondent's Exhibits 3 and 4.
General Counsel's rebuttal witness Donald Hall further
testified that he was the shift utilityman and had responsi-
bility for cleaning out both machines over the pit and
6 I do not credit witness Stage's testimony because it was obvious that he
did not have knowledge of nor was he in a position to have knowledge of
any statistical data with respect to production, paper breaks , or downtime of
the machinery (pressers , conveyors , or the defibrators). Moreover , the Re-
spondent did not assert that the scrap metal worked its way through the
conveying parts. On cross-examination it became obvious that this witness
5 I credit Weil 's testimony that Jordan made this statement but I do not either did not know what he was talking about or that he was being untruth-
construe such statement as an admission of knowledge of disruptive activi- ful in his answers as is partly reflected on the record. His testimony was
ties, or of the identity of employees engaged in such activities , or that Jor- evasive, selective , and he manifested an inability to recall where and when
dan approved of such activities . he worked in the plant.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threading the machines, washing the brammers, cutting the
tail for the threading of the machines, and relieving people
on the machines. He has been a utilityman for 5 years and
estimates that there were 7 to 14 paper breaks per week on
number I machine, and 9 to 14 breaks on number 2 ma-
chine. With respect to the amount of paper in the pits, Hall
stated that paper proceeded to accumulate excessively in
the pits around January 1973. He said that the machines
are seldom shut down to clean out the pits because they
have a crew to clean out the pits, that paper was accumu-
lating at such a rate until the policy was changed and it was
left up to supervisors to determine when to clean out the
pits. The witness later changed his testimony to say that
from his experience paper breaks averaged about 7 to 14
breaks per shift, instead of per week, during the period
January 1973 through August 1973. He said the average
remained the same through October 1973. He also admit-
ted that there were as many as six breaks in 1 hour on one
machine in October 1973, when they had paper breaks one
after another. Specifically, on October 22, 1973, he said
there was an unusual number of breaks on a single shift.
The witness further clarified his answer to say that that was
not an unusual number for one shift, but it was for a period
of an hour and a half. The witness then said he meant 7 to
14 paper breaks per day.'
Counsel for the respectve parties stipulated that Tate, an
experienced machine tender since 1969, said there were six
to seven breaks per week during the period January 1
through August 1, 1973, and that Respondent had experi-
enced an unusual number of breaks in May and July; that
Haisch said that there had been 6 to 7 breaks per shift
during the same period; and Key said that on the number
I machine they would have an average somewhere between
9 and 10 paper breaks on his shift. Haisch has had different
experiences with the number 2 machine (12 to 13 paper
breaks per week).'
D. Respondent Shuts Down Plant
The Respondent (Gray) met with the employees at Bud's
Flower Room at 2 p.m. on October 31 where about a hun-
dred employees were in attendance and at which time he
read the prepared statement comprised in General
Counsel 's Exhibit 14, which in essence told about the ef-
l i do not credit the testimony of this witness whose testimony is obvious-
ly conflicting, uncertain, and confusing Moreover, I received the impres-
sion that the witness was being selective in answering certain questions
propounded by counsel for the respective parties
8 While I do not discredit the estimates of paper breaks given by rebuttal
witnesses Tate, Haisch, and Key. I do not give as much weight to the accu-
racy of their statistics as I do to the accuracy of the statistics of paper breaks
given by Plant Manager Weil, because, not only was I impressed that Mr
Weil was also testifying truthfully. but his statistics were supported by other
statistical data relating to quantum of production and machine downtime.
which factors appeared to be relevant factors with which management rea-
sonably would be concerned. Moreover, Mr. Weil's recollection of estimates
of paper breaks was aided by notes in his personal diary to which he re-
ferred, while the employee witnesses were estimating from their own indi-
vidual experience point of view I further attribute more weight to Mr
Weil's statistics because said statistics are consistent with the other evidence
of disruptions of production in the plant during the 1973 negotiation period.
the credence of which appears to be supported by a past pattern of disrup-
tion during previous renegotiating periods
forts of the Respondent and the Union to achieve an agree-
ment. However, the statement went on to state as follows:
Your representatives gave little or no consideration of
the proposals made by the Company.
On October 12, the Company presented a complete
offer to your representatives. It was rejected without a
realistic counterproposal and the contract expired.
Your representatives have demonstrated an irresponsi-
bility toward the plant and the membership.
An unrealistic 1-year settlement demand and failure
to provide meaningful counter offers typifies this irre-
sponsibility.
This irresponsibility toward your job, your family's
security, and your place of employment is your busi-
ness. However, the future of this plant, the safety of
the work force, and the preservation of company as-
sets is the responsibility of the Company We will not
be irresponsible. Mr. Wells continued to read, point-
ing out the number of days spent in negotiations re-
sulting in loss of production to the Respondent in
1969 to the tune of one million dollars, similar losses
in 1971 during the negotiation period and further
pointed out that the willful acts of 1969 and 1971
proved that no attempt was made to get an agreement
or contract extension; and that at the present time acts
of disruption once again were perpetrated as follows:
SHEET BREAKS AGAIN FILLED THE PITS
THE LAST ACT OF IRRESPONSIBILITY OCCURRED AT START-UP
ON OCTOBER 22
STEEL BALL BEARINGS, SCRAP METAL. AND RAILROAD WHEEL
CHOCKS WERE WILLFULLY AND WANTONLY PUT INTO THE WOOD
CHIP BINS
THIS FOREIGN METAL WAS FORTUNATELY DETECTED BEFORE
IT TOTALLY DESTROYED THE DEFIBRATORS IT DID, HOWEVER, DO
SIGNIFICANT DAMAGE
THE SERIOUSNESS OF SUCH AN ACT CANNOT BE OVERSTRESSED
IT SHOULD BE ABSOLUTELY CRYSTAL CLEAR THAT THESE DISRUP-
TIONS ARE ABOVE AND BEYOND COINCIDENCE
THE LOSS OF THE THREE WOOD DEFIBRATORS WOULD SHUT
DOWN THE PLANT FOR SIX TO EIGHT MONTHS THE TOTAL COST
FOR REPAIR WOULD RUN 1/2-MILLION DOLLARS
WITHOUT THIS KEY OPERATING EQUIPMENT ON LINE, A LABOR
AGREEMENT WOULD BE UNNECESSARY
IF THE METAL HAD NOT BEEN DETECTED, THE EQUIPMENT
COULD HAVE TORN ITSELF APART WITH CONSIDERABLE RISK TO
THE SAFETY OF EMPLOYEES IN THE AREA
THERE IS AN OBVIOUS DISREGARD AND DISINTEREST IN THE
SAFETY OF FELLOW EMPLOYEES IN THE FUTURE OF THE PLANT,
AND THE JOB SECURITY IT HAS MEANT
THESE WILLFUL AND DISRUPTIVE ACTS HAVE REPEATEDLY
BEEN BROUGHT TO THE ATTENTION OF YOUR REPRESENTATIVES
THE SERIOUSNESS AND CONSEQUENCES HAVE BEEN EXPLAINED
THEY ARE UNWILLING TO TAKE THE CORRECTIVE ACTION NECES-
SARY TO PROTECT YOUR SAFETY OR JOB SECURITY
THE COMPANY IS UNWILLING TO CONTINUE TAKING THESE
RISKS
THEREFORE, UNTIL SUCH TIME AS A NEW LABOR AGREEMENT IS
REACHED, THE PLANT WILL REMAIN CLOSED
WE ARE WILLING, HAVE BEEN WILLING, AND SHALL REMAIN
WILLING TO SIT AT THE TABLE FOR MEANINGFUL NEGOTIATIONS
JOHNS-MANVILLE PRODUCTS 1327
THE CLIMATE OF DUAL COMPROMISE LEADING TO A SETTLEMENT
HAS NOT BEEN DEMONSTRATED BY YOUR REPRESENTATIVES.
WE MUST , THEREFORE , TAKE ACTION TO PROTECT COMPANY
ASSETS AND FOREGO THE FELT PRODUCTION NEEDED FROM THIS
PLANT.
IN ADDITION TO CLOSING THE PLANT, IT IS OUR INTENTION TO
SUSPEND ALL COMPANY -PAID BENEFITS EFFECTIVE TODAY, OCTO-
BER 31, 1973.
TO PROTECT YOUR FAMILY FROM ECONOMIC HARDSHIP
CAUSED BY ILLNESS, IT IS RECOMMENDED THAT YOU TAKE IMME-
DIATE STEPS TO OBTAIN HOSPITALIZATION AND MEDICAL INSUR-
ANCE ON YOUR OWN.
I WILL REPEAT , WE ARE READY TO MEET AND BARGAIN. HOW-
EVER , YOUR REPRESENTATIVES HAVE BEEN UNAVAILABLE .9
THE PROJECTED FUTURE OF NEW ORLEANS PLANT IS AT
STAKE. I EARNESTLY HOPE THAT NEGOTIATIONS CAN RESUME
IMMEDIATELY.
After Gray completed the above-quoted speech to the
employees he immediately walked out of the room and
Rousselle testified that he approached Wells and asked
him to have Gray come back and tell the employees the
truth; that the employees were available for negotiations
but that Wells refused to meet. Nevertheless, the Union
was always available to meet with the Respondent and it
never requested a postponement or a delay in such meet-
ings.
E. Post-Shutdown Collective Bargaining and Permanent
Replacement of Employees
After the plant was shut down, about 85 or 86 employees
filed for unemployment compensation which the Respon-
dent unsuccessfully contested. On November 7, 1973,
Rousselle called Respondent 's Denver, Colorado, office to
speak with Chuck Hite, the former employer-relations
manager for Respondent, and was referred to Hite in Co-
lumbus, Georgia. He asked Hite if he was aware of what
was going on at the felt mill plant in New Orleans and Hite
said he did not know what he was talking about, so he
advised Hite that the Respondent was trying to avoid
meeting with the Union's bargaining committee, and at the
same time was accusing the Union of being irresponsible
and refusing to meet with it. After checking into the situa-
tion, Hite returned Rousselle 's call several days later and
he advised him that he was coming to the New Orleans
bargaining meeting and would have a proposal which he
felt that the Union could not refuse.
The parties met on November 14, 1973, and the Respon-
dent was represented by Hite and Weil with Rousselle and
the members of the union committee . Hite of the Respon-
dent opened the meeting by distributing a proposal (G.C.
Exh. 18) which provided for a 3-year contract , a wage in-
crease for the first year, previously granted benefits, and a
no-strike, no-work stoppage, no-slowdown, and no-lockout
provision, a provision for filling vacancies among other
things, except a provision regarding its right to employ
9I do not credit Gray' s statement that union representatives were not
available for negotiations because it is not only denied by the Union but is
also unsupported by the evidence of record.
electricians or other specialized employees off the street.
The Union (Rousselle ) made a counterproposal which
Rouselle testified was as follows:
A. We made a counterproposal to the Company
and I prefaced my remarks by saying that the Union
was not interested in a three-year agreement. We had
had two-year agreements previous to this but in order
to try to resolve the issue we would make a proposi-
tion based on a three-year agreement, and, that propo-
sition would be a three-year contract with 30 cents an
hour wage effective the first year, 30 cents the second
year, 30 cents the third year; increase the pension plan
by one dollar times years of service for each yea-. of
service prior to 1966 and after subsequent to 66, re-
duce the waiting period of accidents period from a
seven day waiting period to a four day waiting period,
increase the shift premium one cents per hour on each
of the two shifts, 3 to 11 shift and 7 to 11 shift; and,
the company would withdraw its proposition on the
maintenance proposal that they had, and, the no
strike, no lock out provision that they had amended
revert back to the original contractual language.
Hite then said that that was the best the Company could
do because it had no more money to offer and that it was
it. The parties left without agreeing on a future meeting
date. However, the parties met again on November 27,
1973, at which time they again discussed the matter of se-
niority and training employees but they did not reach an
agreement. At the conclusion of this meeting, however, the
principal remaining issues dividing the parties were wages,
the maintenance of training issues, and the no-strike lan-
guage. The parties met again on November 30, 1973, with
Bates, the Federal mediator, and both parties advised that
they had no further moves to make. The record indicates
that the parties also met in January.
Michael A. Tappin, vice president of Respondent and
director of labor relations, credibly testified that on No-
vember 8, 1973, he met with Edward or Edgard Switcher of
the union headquarters in Denver, Colorado, when he
asked Switcher his views on the New Orleans strike situa-
tion . After a brief discussion of the situation both Switcher
and Tappin agreed to take a look at their respective views
to see what they could do. As a result of this meeting Tap-
pin had a new economic proposal prepared (G.C. Exh. 18).
On March 20, 1974, Tappin, along with other company
officials, met with Grospiron, president of the Union, and
Rouselle in an effort to resolve the New Orleans dispute.
The parties did not reach any agreement.
William H. Gates, vice president of Respondent and
production operations manager for the residential products
division of Respondent, credibly testified about his famil-
iarity with the labor dispute at Respondent. He stated that
on October 10, 1973, Respondent was becoming increas-
ingly concerned about the reported incidents of sabotage
and decided that if such activity continued it would have to
shut down operations of the plant, because it was clear the
operation could not sustain itself. Consequently, he and
Gray decided more or less to shut down the plant on Octo-
ber 12, 1973. Between October 12 and 20, they decided to
try one more time by opening the plant and calling the
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees back to work. Operations were resumed on Oc-
tober 21 . However, due to reports subsequent thereto that
metallic objects were being found in the defibrators, he and
Gray decided very quickly that the operation could not
sustain itself because it endangered not only property of
the plant but also the lives of its own personnel and people
in the area.
In the production reports for the month of February
1974, Gates said he noticed that production was substan-
tially lower (1,143 tons as compared with 3,234 tons) than
he was accustomed to receiving from the Respondent
plant. (Resp. Exh. 8.) He also noticed the cost per ton was
exceedingly high ($ 161.44 as compared to $80 to $90) than
was the customary cost. The report also showed that the
Respondent plant made a 35 percent unfavorable variation
in purchase of materials for that month. And the report
also showed that salaries were low because some 20 pro-
duction employees were brought in from other plants and
were on the payrolls of the other plants. The total picture
revealed by this report was one of underproduction and
unusual expenses of trying to keep the plant in operation.
All of these figures showing losses in production and ex-
pense were arrived at by comparing production and costs
during the same period, February 1973.
As late as November 1974 the Respondent's officials
were concerned with the tremendous loss in production
from the New Orleans Respondent plant. Gates corrobo-
rated the testimony of Tappin with respect to the conversa-
tion they held on March 20 about the meeting Tappin had
with Grospiron and his statement that Respondent might
have to go ahead and hire permanent economic replace-
ments . Gates verified the production estimated reports for
January (February 1973) with which the February 1974
production reports were compared.
Gates' estimate of loss and pretax profits to the Respon-
dent during the period November 1, 1974, through March
30, 1974, as compared with the same period during the
previous year amounted to $1.5 million as a result of the
labor management difficulties . The loss in production at
the New Orleans plant affected the production operation
and work hours at the Savannah plant from November
1973 through May 1974. Also affected by the labor diffi-
culties of the Respondent were its plants at Marrero in
terms of layoff of 30 to 40 employees during the subject
period. Gates admitted that Respondent did not communi-
cate its intentions to the Union to permanently replace the
employees of the New Orleans facility.
Wells attended a meeting at the Respondent 's headquar-
ters in the Denver, Colorado, office on March 21, 1974,
during which time Gates said it appeared there wasn't
going to be a settlement at the New Orleans felt mill based
on the information he had at the meeting on the preceding
day at the Union's International headquarters with Rous-
selle, Weil , and Tappin. He then asked Tappin about per-
manent replacements and picked up the telephone and
spoke with legal counsel , O'Brien. While on the phone, he
asked Wells how long it would take to replace the work
force. After he hung up the telephone he said, "Let's go
ahead and hire permanent replacements," and they agreed
to start hiring the first part of April 1974. Thereupon Wells
commenced interviewing applicants around the first week
in April and 7 new employees came on the payroll April 8,
1974, until they reached 120 employees, although there are
only 100 employees at the present time. The employees
were told that as insofar as the Respondent was concerned
they were permanent employees.
Rousselle remained in communications with the media-
tor who suggested a meeting with the Company which was
held on April 16 and/or 18, 1974, when both parties main-
tained their respective bargaining positions.
Many of the temporary employees were borrowed or
furnished by Babst Services and those who became perma-
nent employees severed their relationship with that compa-
ny. Respondent stopped using the services of Babst on
April 29, 1974. The temporary employees were on the pay-
roll of Babst Services during the time they were working in
Respondent's plant.
The next meeting took place upon the Union's request
(through the mediator) on June 12, 1974, at which time the
Union proposed that for every mechanic Respondent was
allowed to hire from the outside, that it would also be obli-
gated to put in a bid for one inside employee who agreed to
enter a training program while remaining employed. The
Union asked the Company the approximate number of
trained persons they wanted to hire off the street, and
Wells said about seven people, but that the Company's
November 14 offer was still the Company's offer. He also
said the Respondent had not received any written or oral
request from the Union to bargain thereafter.
Marion A. Cooper credibly testified that he had been em-
ployed at the plant since 1942 and was there when Respon-
dent bought the plant in 1965; that at first he was a ma-
chine tender and later went to the maintenance
department. He further stated that in October and the
summer months of 1974, he and a Mr. Springer were by the
receiving gate to establish the picket line when Spinnato
walked up and asked them how they were doing, and they
responded fine. The following conversation ensued:
A. He asked us how you boys doing. I said, we
doing fine. He said, when you all coming back to
work. We told him we said, well, it is up to the Com-
pany. He said, well, he says, if you can get your Nego-
tiating Committee to accept the offer that the Compa-
ny made, he said, you all would go back to work
tomorrow.
Q. Did you respond to this?
A. Well, truthfully I didn't have time to respond
because just about that time they paged him on the
PA System.
Cooper last worked for Respondent on October 31, 1973.
Willie John Tate credibly testified that he has worked for
Respondent since 1946; that he was not working on Octo-
ber 31, 1973, and did not have a conversation with Respon-
dent until about May or September 1974, when he had a
telephone conversation with Spinnato who asked him how
was he doing and he told him he was doing "bad." He then
asked him if he wanted to get together and come to work
and he responded that they could not get together because
he (Tate) could not get the employees together; that Spin-
nato then said, "Well, if I furnish you with a list of the
names of employees would you call the guys and see if you
JOHNS-MANVILLE PRODUCTS 1329
can get them to come back to work," and Tate said he
would. Spinnato did give Tate a list with 26 names and
telephone numbers, including his own, and the latter called
all of said employees and only one declined to return to
work. The following day he said he called Spinnato and
told him that all except one agreed to come back to work
until the contract is settled providing the rest of them
would be able to return to work. However, he said he did
not hear any further word from Spinnato. This conversa-
tion occurred after the picketing had started. All of the 26
persons were either maintenance men or bag tenders or
machine tenders. And the union committee members or
officers were maintenance employees. None of the 26 per-
sons called by Tate were members of the Union's negotiat-
ing committee.
Robert Key credibly testified that he worked for Respon-
dent since June 1967 and was working until October 31,
1973, as a machine tender, bag tender, roll man, utility-
man, acting supervisor; that in or about June 1973 while in
the felt mill plant's office he overheard Weil, Henry Eike,
and Henry Barcia in conversation. He overheard Henry
Eike say he couldn't wait until the expiration date of the
contract when he could see a change in the maintenance
department; and Weil said that he felt sorry for the boys in
the maintenance department. Barcia said: "there's some
damn good people over there. I hope that I'm not jeopard-
izing his job." This conversation took place 4 months be-
fore negotiations with Eike; he thinks Eike had responsibil-
ity for the maintenance employees.
Angelo John St. Angelo testified that he started work
with Flintkote Company in th mechanical department in
1940 and has remained with the Company even after it was
taken over by Johns-Manville and is now head mechanic
of the maintenance department. He further testified that
his first contact with Respondent since October 31, 1973,
was in June 1974 while picketing at the gate, when Henry
Eike came out and said he would like to have all of his old
mechanics back; that when he (St. Angelo) said you can
have us back, you locked us out and all you have to do is
call us back and we will be back, that Mr. Eike then said
we just can't do that and when St. Angelo asked why not,
he said Eike said not unless you accept the contract that
Johns-Manville offered you. (Eike was St. Angelo's super-
visor prior to October 31, 1973.) His next contact with the
Respondent was about December 2, 1974, while leaving
the Flintkote personnel office after applying for a job.
Spinnato asked him why didn't he come to work at the
plant and he replied that he was ready to come back to
work; that Spinnato then said all you have to do is accept
the contract that the Company offers you, and St. Angelo
said he simply walked away,'
Analysis and Conclusion
A careful review of the credible evidence of record sum-
marized under topics B and C, supra, clearly establishes
that the parties herein (Respondent and the Union) were
101 credit the undisputed testimonial accounts of witnesses Tate, Key,
and St . Angelo with respect to the conversations company officials had with
them about returning to work at the plant.
engaged in collective-bargaining sessions from September
11, 1973, through and up to June 13, 1974. Perhaps the
bargaining of the parties might properly be described as
hard bargaining. Noteworthy in any event, however, is the
absence of any allegation or clear and credible evidence
that either party had refused to bargain or had engaged in
bad faith or surface bargaining during the period of Sep-
tember 11, 1973, to April 8, 1974 (the date on which Re-
spondent first hired permanent replacements for its locked-
out unit employees). Hence, at least during this particular
period, an issue of good-faith bargaining is not presented
for decision momentarily. The evidence is also clear that in
spite of several bargaining sessions the parties were unable
to reach a new collective-bargaining agreement, although
its current agreement was to expire on October 12, 1973,
and bargaining had reached an impasse.
Concurrent with the bargaining sessions during Septem-
ber and early October 1973 was the occurrence of a series
of plant disruptions in production as a result of increases in
paper breaks, the insertion of large and small pieces of
scrap metal into the production machinery, which posed an
added possible risk of future damage or destruction of such
machinery, and/or the possible injury to life or limb of
plant personnel or persons in the vicinity. The Respondent
produced evidence that it sustained substantial losses in
production, $4,000 expense to repair a piece of production
equipment, and substantial losses in profits as a result of
operational disruptions during the subject period. The Re-
spondent apprised the bargaining committeeman Mack
Jordan on October 2, and Union Representative Rousselle
and his bargaining committee on October 3, 1973, about
the disruptions in the plant and requested the Union's as-
sistance to have the unit employees end the destructive ac-
tivities. While both officials expressed their denial and re-
sentment about the complaint, Representative Rousselle
ultimately promised he would check into the matter and
get back to Respondent. However, the Union (Rousselle)
made no further response to Respondent about such activi-
ties . Respondent not only apprised the Union of the dis-
ruptive activities but also of the financial consequences it
was sustaining as a result thereof.
When the parties did not agree upon a collective-bar-
gaining agreement at the last bargaining session on Octo-
ber 12, 1973, the Respondent announced the expiration of
the current bargaining contract at midnight on that date
and further emphasized that it would not thereafter honor
any of the terms of the expired contract. It might very well
be that the Respondent's emphatic renunciation of contin-
uing the terms of the expired contract on the very date of
its expiration, when considered along with its layoff of
some production employees prior to October 12 and others
subsequent thereto, reasonably infers that the Respondent
decided to exert pressure on the employees, coupled with
the eventual shutdown of the plant, in order to break the
bargaining impasse. In any event, since the collective bar-
gaining of the parties was at an impasse on October 12,
1973, the Respondent could legally shut down its plant
without violating the Act, if it did so, as I find, since the
shutdown or lockout did not have a discriminatory or re-
straining effect upon union membership, the exercise of
employees' protected rights, and because it was done for a
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legitimate and substantial business purpose without anti-
union motivation. This conclusion is in accordance with
American Ship Building Co. v. N.L.R.B, 380 U.S. 300, 318
(1965), where the Court said: "Accordingly, we hold that
an employer violates neither § 8(a)(1) nor § 8(a)(3) when,
after a bargaining impasse has been reached, he tempo-
rarily shuts down his plant and lays off his employees for
the sole purpose of bringing economic pressure to bear in
support of his legitimate bargaining position."
On October 22, 1973, when the Respondent experienced
an excessive number of paper breaks which resulted in the
filling of the pits under the machines, and it discovered an
unusual number of large and small pieces of scrap metal in
its conveyors, bins, and defibrators on or about October
23, which resulted in substantial reduction in production,
some damage, and the risk of more substantial damage to
its machinery, and the possible risk of loss of life or injury
to persons within the vicinity, the Respondent stated, and I
so find, that it also decided, upon the basis of these addi-
tional factors without antiunion motivation, to lay off the
remainder of its production employees immediately and
thereafter close down the plant on October 31, 1973. Such
a shutdown of the plant and lockout of its employees under
the circumstances may be legally justified where the object
of the employer is to serve a legitimate business purpose
without antiunion motivation. See International Shoe Com-
pany, 93 NLRB 907, 909 (1951), where the Board said,
"Nothing in the Act, in our opinion, requires that an em-
ployer continue to operate his plant despite the prospect of
recurrent work stoppage which would make further opera-
tions uneconomical."
Although the Respondent introduced evidence showing
it experienced some disruptions in production during pre-
vious negotiating periods, such evidence does not show
that any disruptions experienced during those times were
made an issue in the bargaining sessions or that they were
clearly and formally brought to the attention of
Respondent's employees. Only on one such occasion did
Respondent complain to the Union about paper breaks
during a prior negotiating period. While I do not discredit
Respondent's testimony about such disruptions during past
negotiating periods, I nevertheless do not attribute much
weight to said testimony, because Respondent did not es-
tablish that such activities during those periods were any
better established to have constituted concerted activity on
the part of identified employees than it does for the activi-
ties during the present 1973 bargaining session.
Consequently, based on the foregoing credible evidence,
legal authority, and reasons, while I conclude and find
such evidence sufficient to legallyjustify the Respondent's
lockout of its employees to impose economic pressure upon
them in an effort to advance its bargaining position on the
one hand, and to protect its legitimate and substantial busi-
ness operations from frequent disruptive operations on the
other, I nevertheless do not find such evidence sufficient to
support a conclusion and finding that Respondent's em-
ployees were engaged in an in-plant "strike," so as to en-
able it to replace or discharge its entire complement of pro-
duction employees. Additionally, I also find such evidence
insufficient to support a conclusion and finding that
Respondent's employees were engaged in concerted im-
proper conduct, so as to legally justify its replacement or
discharge of its entire complement of unit production em-
ployees.
In view of the fact that such disruptive acts could have
been performed by any one employee, acting indepen-
dently and not on behalf of any other employee or the
Union; the evidence of record fails to show that Respon-
dent conducted any in-plant investigation in an effort to
ascertain who was responsible for such disruptive activi-
ties; the Respondent did not introduce any evidence which
identified any employee who was even alleged to be re-
sponsible for such activities, I am thereby persuaded that
the Respondent did not have reasonable and sufficient ob-
jective considerations upon which to conclude that any or
all of its employees were engaged in improper and unlaw-
ful conduct or concerted activity, so as to justify its re-
placement or discharge of all of its production employees,
innocent or guilty alike.
The Respondent contends that the evidence shows con-
certed interference with Respondent's production and its
means of production by its production employees, which
interference constitutes an illegal, in-plant strike to force
Respondent to accept the Union's bargaining demands.
However, while a cursory review of the evidence might cir-
cumstantially infer such a concerted effort on the part of
the production employees, I find that a comprehensive ex-
amination of the evidence tends to render such inference
highly speculative when certain factors thereof are taken
into consideration. In this regard, it is noted that it is well
established by the undisputed evidence that: Paper breaks
are caused by several unintentional factors as well as by
intentional acts; that the frequency of such paper breaks,
though somewhat stabilized during nonnegotiating periods,
was nevertheless erratically unstable on some occasions
during the same period; that anyone, or a combination of
employees, can intentionally or unintentionally cause pa-
per breaks by improperly adjusting the heat or revolutions
of the dryer machines, by varying the paper mixture for-
mula, or by striking the paper with the hand or an object;
and that since Manager Weil's testimony on the frequency
of paper breaks was not from official company records,
and additionally, was in conflict with the testimony of
some of the employees who operated the machines daily, I
find the frequency rate of paper breaks during the nonne-
gotiating periods was about eight per week, instead of three
per week as Respondent intends, or considerably more per
week as the employee witnesses contend. This figure makes
allowance for inaccuracies and bias on the part of witness-
es for both parties.
With respect to the occurrence of some increase in paper
breaks, the presence of scrap metal in the production ma-
chinery, along with evidence of other acts of disruption in
production during September and October 1973, it imme-
diately appears logical that the circumstantial evidence of
such acts infers that they were carried out by Respondent's
production employees. However , when it is further consid-
ered that such evidence fails to identify a single or any
group of employees, or to establish that the Union and/or
any plant employee, independently or through a conspira-
cy, actually engaged in sabotage or such disruptive activi-
ties, the inference that they did so becomes less significant
JOHNS-MANVILLE PRODUCTS 1331
in its probative value than it initially appeared. This evalu-
ation is particularly true when it is observed that such ac-
tivities could have been carried out by a single individual,
acting on his own behalf and not on behalf of , or in con-
cert with, other employees or the Union. Moreover, the
evidence fails to show that the Union either advocated,
initiated , or condoned the disruptive activities , as com-
pared with the Union's suggested work slowdown in Ra-
leigh Water Heater Mfg. Co., Inc., 136 NLRB 76 (1962),
cited by counsel for Respondent. There, unlike here, the
employees who participated in the work slowdown on the
suggestion of the Union were identified and their participa-
tion therein unquestionably in concert.
On the contrary, the Union in the instant case emphati-
cally denied that its unit employees were engaged in dis-
ruptive activities in the plant even though it failed, for
some unexplained reason , to report to Respondent whether
it investigated its members ' involvement as it had promised
Respondent it would. Perhaps it was unable to identify any
employees involved or it might have been continuing an
investigation . Finally, none of the employees herein are
identified as having engaged in the disruptive activities and
none of the activities herein were established to have con-
stituted concerted activity on the part of the unit produc-
tion employees. Also not controlling in the instant proceed-
ing is the case of Massey Gin and Machine Works, Inc., 78
NLRB 189 (1971), cited by counsel for the Respondent, for
the same reason that the evidence therein established the
identity and concerted walkout of the employees. Likewise,
in N.L.R.B. v. Fansteel Metallurgical Corporation, 306 U.S.
240 (1939), also cited by counsel for the Respondent, it was
abundantly established by the evidence that certain identi-
fied employees occupied the company buildings and re-
fused to leave , even in the face of a state court injunction.
Here again , there was no question as to the identity of the
employees or the concerted nature of their sitdown in-plant
strike activity, which activity I find conspicuously absent in
the instant proceeding.
Postlockout Bargaining and the Use of Temporary
Replacements
The evidence clearly shows that Respondent met in ne-
gotiating sessions on November 11 and again on Novem-
ber 14 , 1973, and that during the latter session Respondent
proposed , among other things , a 3-year contract, a wage
increase for the first year , previously granted benefits and a
no-strike, no-work stoppage, no-slowdown, and no-lockout
provision. The Union responded with a counterproposal
which among other things included a request to Respon-
dent to withdraw its proposal on the hiring of maintenance
employees and the no-strike , no-lockout provision. Re-
spondent refused the request and other counterproposals.
The parties thereafter met in conference or bargaining ses-
sions on November 8, 27, and 30, 1973, and in January and
on March 20, 1974, without reaching an agreement. On
March 21, 1974, Wells met with company officials during
which time Respondent, either seriously or tactically, de-
cided to hire permanent replacements for the locked-out
unit employees. On April 8, 1974, Wells hired the first 7
permanent replacements until there were 120 replacements
hired. At the time of the hearing there were 100 permanent
replacements on Respondent's work force.
The parties nevertheless met again in bargaining sessions
on April 16 and 18, 1974, without reaching an agreement.
Both parties agreed that the Union did not commence to
picket at the plant until about April 29, 1974. The parties
met in negotiation session on June 12, 1974, at which time
Respondent advised the Union that its offer was the same
as that submitted to the committee on November 14, 1973.
There was some testimony by employees Tate, Key, and St.
Angelo that between May and October 1974 company offi-
cials held conversations with each of them about returning
to work. However, neither conversation shows that Re-
spondent made an unconditional offer to any of the em-
ployees to return to work or that such an offer was ever
extended to unit production employees.
Counsel for Respondent contends that Respondent's
November 14 offer to reopen the plant on the condition
that the employees agreed to sign the contract as it pro-
posed is similar to the employer's offer to employees in the
Raleigh case, heretofore cited. However, my reading of the
Raleigh case does not convey such similarity. In the instant
case Respondent's offer to the bargaining committee con-
tained not only a no-strike, no-stoppage, no-slowdown pro-
vision, but also its economic proposals which the Union
had previously rejected. In the Raleigh case the employer
first warned the Union that if the work slowdown did not
cease it would lay off the employees. When the slowdown
did not cease, the employer laid off the employees but
thereafter sent each employee a letter advising them that
they could return to work on a certain day if they were not
going to participate in a slowdown; and that if they did not
return by said date they would be permanently replaced.
Unlike the employer in Raleigh, the Respondent did not
warn the employees directly or through the Union that, if
the disruptions did not cease, all unit production employ-
ees would be laid off and the plant closed. Nor did Re-
spondent request such an independent assurance from the
Union or directly from the employees after the plant's clo-
sure, that if the disruptions would cease it would reopen
the plant. Instead, Respondent's offer to reopen the plant
was based upon the unit employees' acceptance of
Respondent's economic proposals along with the no-strike,
no-slowdown request. Consequently, the Union could not
exercise its right to reject (bargain freely) Respondent's of-
fer without rejecting its request for a no-strike, no-slow-
down provision in such a joint offer. Moreover, since the
offer or proposal was joint, the Union's rejection of the
no-strike, no-slowdown portion could not convert the
locked-out unit employees into economic strikers.
I find nothing in the record to support Respondent's
contention that efforts by it to seek assurance from the
employees against further disruptions after the plant clo-
sure would have been futile. While Respondent's joint offer
was legal as containing an additional bargaining leverage,
its rejection by the unit employees could not convert them
into economic strikers so as to justify their permanent re-
placement or discharge. In other words, the employees
here , as distinguished from the employees in International
Shoe Company, elected not to sign the contract as did the
employees in International Shoe Company. If they had, the
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added leverage of the Respondent 's bargaining no-slow-
down weapon would have been successful and Respondent
would not have been guilty of conduct violative of the Act.
Since the lockout (defensive and offensive) herein was
legally justifiable, the Respondent could reopen and con-
tinue to operate its plant as it did with the use of temporary
replacements during the bargaining impasse . Such opera-
tion is legally permissible because I find the evidence of its
impact upon the exercise of the employees ' protected rights
to be slight , as compared to the employer 's legitimate use
of the lockout and continued operation with temporary re-
placements. Inter Collegiate Press, 199 NLRB 177 (1972).
At this juncture , the employees were left with the alterna-
tive to accept the Respondent 's proposed contract or hold
out for continued bargaining , as they elected to do. The
Respondent was left with the alternative of making some
concessions in its bargaining demands or continuing to en-
dure any inefficiencies and losses in profits it was experi-
encing with hopes of breaking the bargaining impasse. At
least, in a theoretical sense , the parties were on relatively
equal footing and neither was engaged in conduct violative
of the Act.
Unilateral Permanent Replacement of Locked-Out Unit
Employees
However, the evidence shows that on March 21, 1974,
Respondent commenced losing its fortitude in the holdout
when it started discussing the permanent replacement of its
locked-out unit employees without consulting or notifying
the Union or the employees of such intention . Consequent-
ly, when Respondent unilaterally commenced hiring per-
manent replacements of its unit employees on April 8,
1974, without consulting or notifying the Union or the em-
ployees, I find such action did in fact tilt the scales out of
balance with respect to bargaining power ; and that such
action also rendered more than a slight adverse effect upon
the employees ' protected rights , as compared with
Respondent 's legitimate business purpose and its lockout
bargaining leverage . In fact, I further find that
Respondent 's permanent replacement of its entire comple-
ment of unit employees was so inherently discriminatory
and destructive of said employees ' protected rights that
such action constituted a per se violation of Section 8(a)(3)
and (1) of the Act, as the Court held in Erie Resistor Corp.
et at. v. N.L.R. B., 373 U .S. 221 (1963), and that such find-
ing is also in accordance with the principle enunciated by
the Board in Inter Collegiate Press, heretofore cited."
Finally, I also conclude and find that Respondent's per-
manent replacement of its entire complement of unit em-
ployees on April 8 , 1974, was violative of Section 8(a)(5) of
the Act . Such action by the Respondent clearly and direct-
ly undermined the very nature of the objective and effec-
tiveness of an exclusive bargaining representative (the
Union), comparable to the action taken by the employer in
11 t considered the possibility that Respondent's acknowledgment or actu-
al hiring of permanent replacements might be merely a tactical maneuver.
However . I cannot ignore the Respondent 's (Wells) undisputed sworn testi-
mony that it has hired permanent replacements for its unit employees when
nothing in the record suggests otherwise.
Cf. Wire Products Manufacturing Corp., 198 NLRB 652
(1972), cited by counsel for the General Counsel . The per-
manent replacement of the employees herein constituted
not only an illegal discharge of the employees but also, for
all practical purposes , a withdrawal of recognition of their
duly elected collective -bargaining representative . Conse-
quently , although Respondent met with the bargaining
committee subsequent to the hiring of the permanent re-
placements , such meetings or bargaining can hardly be
characterized as meaningful bargaining in good faith. In
reality , it was bargaining in bad faith or refusing to bargain
on the part of the Respondent.
Although some employees testified that they overheard a
conversation or statement by Weil or other company offi-
cials about being sorry for some of the employees , I do not
attribute any significant weight to such testimony because
the substance thereof is too vague and speculative to be of
meaningful probative value in assessing Respondent's mo-
tives for the lockout or its good-faith bargaining prior to
the lockout.
The parties agree that the following constitute the appro-
priate bargaining unit:
All production , maintenance, shipping , receiving,
laboratory , and plant clerical employees employed by
Respondent at its New Orleans , Louisiana, plant; ex-
cluding all office clerical employees , professional em-
ployees, administrative employees, technical employ-
ees and supervisors as defined in the Act , constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate , and substantial relationship 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 unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent interfered with,
restrained , and coerced its entire complement of unit em-
ployees in the exercise of their Section 7 protected rights, in
violation of Section 8(a)(1) of the Act ; it discriminatorily
replaced or discharged the entire complement of its unit
production employees in violation of Section 8(a)(3) of the
Act; and by its discriminatory displacement of said em-
ployees it withdrew recognition of the Union in violation
of Section 8(a)(5) of the Act, the recommended Order will
provide that Respondent offer them reinstatement to their
jobs , and make them whole for loss of any earnings within
JOHNS-MANVILLE PRODUCTS 1333
the meaning and in accord with the Board's decisions in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), except as
specifically modified by the wording of such recommended
Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any manner inter-
fering with, restraining, and coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Johns-Manville Products Corporation, the Respon-
dent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is and has been at all times material
herein, a labor organization within the meaning of the Act.
3. By discriminating in regard to the tenure of employ-
ment of its entire complement of unit production employ-
ees in an effort to discourage membership in the Union, a
labor organization, Respondent has engaged in unfair la-
bor practices condemned by Section 8(a)(3) and (1) of the
Act.
4. By the discriminatory replacement of its entire com-
plement of unit employees on April 8, 1974, Respondent in
effect withdrew recognition of and undermined the objec-
tive and effectiveness of the Union as the duly elected col-
lective-bargaining representative of its unit employees, in
violation of Section 8(a)(5) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. All production, maintenance, shipping, receiving, lab-
oratory, and plant clerical employees employed by Re-
spondent at its New Orleans, Louisiana, plant; excluding
all office clerical employees, professional employees, ad-
ministrative employees, technical employees and supervi-
sors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to its entire complement of locked-out unit em-
ployees immediate and full reinstatement to their former
positions as held by them on April 8, 1974, or, if such
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
previously enjoyed, and make them whole for any, loss of
pay suffered by reason of the discrimination against them
with interest at the rate of 6 percent, in the manner de-
scribed in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of the recommended Order.
(c) Upon request, bargain with Oil, Chemical and
Atomic Workers International Union, AFL-CIO, as the
exclusive representative of Respondent's employees in the
unit herein found appropriate and embody any under-
standing reached in a signed agreement.
(d) Post at Respondent's plant at New Orleans, Louisi-
ana, copies of the attached notice marked "Appendix." 13
Copies of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
13 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
ORDER 12
Respondent, Johns-Manville Products Corporation,
New Orleans, Louisiana, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment because of protected
concerted activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Oil, Chemi-
cal, and Atomic Workers International Union, AFL-
CIO, or any other labor organization, by discharging
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees or otherwise discriminating in any manner
in respect to their tenure of employment or any term
or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise and en-
joyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(aX3) of the Act.
WE WILL offer all locked -out unit employees, imme-
diate and full reinstatement to their former positions,
which they held on April 8, 1974, or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to the seniority and other rights and
privileges previously enjoyed by them, and make them
whole for any loss of pay they may have suffered by
reason of their replacement or discharge , with interest
at the rate of 6 percent per annum.
WE WILL NOT refuse to bargain collectively with Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, by permanently replacing employees or by
refusing to meet with it timely upon its request.
WE WILL , upon request, bargain collectively in good
faith with Oil, Chemical and Atomic Workers Interna-
tional Union , AFL-CIO, as the exclusive bargaining
representative of all the employees in the bargaining
unit herein found appropriate , and to reduce to a writ-
ten, signed contract any agreement reached as the re-
sult of such bargaining . The appropriate bargaining
unit is:
All production , maintenance , shipping, receiving,
laboratory , and plant clerical employees employed
by Respondent at its New Orleans , Louisiana,
plant; excluding all office clerical employees, pro-
fessional employees , administrative employees,
technical employees and supervisors as defined in
the Act.
All our employees are free to become, remain, or refuse
to become or remain , members of said Union or any other
labor organization , except to the extent that such rights
may be affected by lawful agreements in accord with Sec-
tion 8 (a)(3) of the Act.
JOHNS-MANVILLE PRODUCTS CORPORATION