Movers and Warehousemen's Assn. of Metropolitan Washington, D.C., Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1976

224 N.L.R.B. 356 (N.L.R.B. 1976)

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Movers and Warehousemen 's Association of Metro-
politan Washington, D.C., Inc and its Employer
Members, Jointly and Severally : Bekins Moving &
Storage Co ; Colonial Storage Co .; District Moving
& Storage Inc., Fidelity Storage Co ., Lions Trans-
fer Co.; Merchants Storage Co . of Va ; Merchants
Transfer & Storage Co .; Columbia Van Lines
Corp .; Security Storage Co . of Washington;
Smith's Moving & Storage Co ., Inc, United States
Moving & Storage Co., Inc.' and Local Union No.
639, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca. Case 5-CA-7232
June 3, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING,
JENKINS, AND PENELLO
On September 15, 1975,2 Administrative Law
Judge Arthur Leff issued the attached Decision in
this proceeding Thereafter, the General Counsel and
the Charging Party (herein also called the Union)
filed exceptions and supporting briefs, Respondent
filed cross-exceptions and a brief in support thereof,
and Charging Party filed a reply brief to
Respondent's cross-exceptions
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, except as modified
herein
The pertinent facts are fully set forth by the Ad-
ministrative Law Judge
Briefly, for more than 20 years the members of
MAWA and the Union have enjoyed a stable bar-
gaining relationship The collective-bargaining agree-
ment in effect just prior to the events herein was due
i Herein collectively referred to as Respondent or MAWA As noted by
the Administrative Law Judge in fn 2 of his Decision, MAWA did not
represent Merchants Transfer & Storage Co in the negotiations for the 1975
collective-bargaining agreement Furthermore , the statement made at the
hearing by Respondent 's counsel that the inclusion of that company in the
complaint was erroneous was undisputed Accordingly, in the absence of
any allegation or evidence as to the individual conduct or responsibility of
the said company , and since no exception has been filed to the Administra-
tive Law Judge's omission of Merchants Transfer & Storage Co from his
recommended Order , we make no findings concerning it and it is not sub-
ject to the remedial Order herein
2 All dates herein are in 1975 unless otherwise indicated
3 The Administrative Law Judge states in his Decision that `the General
Counsel stipulated that [Respondent and Charging Party ] bargained in good
faith" during their contract negotiations in April While the record fails to
establish such a stipulation, it does show that General Counsel offered to
stipulate that both parties were attempting to negotiate an agreement
during the month of April, but the Charging Party declined to join therein
to expire March 31 Consequently, on March 10 the
parties held their first meeting to negotiate a new
agreement At that meeting, one of the Union's nego-
tiators, Roland Warren, told the MAWA representa-
tives that, because of the employees' dissatisfaction
with the procedure used in ratifying the then current
contract, that procedure would not be used to ratify
the contract being negotiated At the fourth bargain-
ing session , on March 25, Respondent made a "final"
offer Union President De Brouse agreed that, pur-
suant to a provision of the Union's constitution, he
would submit the offer to the membership but would
not recommend its acceptance
On March 27, MAWA sent its "final" offer in
writing to the Union, along with a letter stating that
the offer would be retroactive if the Union agreed to
employee ratification by a mail ballot referendum as
set forth in the letter De Brouse subsequently tele-
phoned MAWA's chief negotiator, Virgil Seward,
and rejected the proposed ratification procedure
Thereafter, on March 31, Seward wrote to De Brouse
stating that, unless the Union notified MAWA that
day that it would submit Respondent's offer to the
employees according to the procedure specified in
the March 27 letter, "the Association's membership
will be forced to terminate operations by bargaining
unit personnel on Tuesday, April 1, 1975 "
In a telephone conversation that same day, De
Brouse told Seward that the Union would consider
the threatened lockout an unfair labor practice Also
on March 31, De Brouse sent a telegram to MAWA's
attorney in which he stated that "if the Moving and
Storage Association locks out its employees it is in
violation of their agreement and the contract will not
be settled until each employee is paid for all lost
earnings "
On April 1, all bargaining unit employees were laid
off That same day, in response to the above-quoted
telegram, Seward hand delivered a letter to De
Brouse, in which Seward expressed MAWA' s posi-
tion that it was not in violation of its collective-bar-
gaining agreement or the NLRA and that "none of
the employees involved are entitled to backpay "
It appears that by the following day, April 2,
MAWA had become concerned that the lockout
might constitute an unfair labor practice Conse-
quently, on that date, after consultation with counsel,
Seward sent another letter to De Brouse, stating in
part
In response to your telephone call of yesterday,
it is important to reiterate the reason why the
employers found it necessary to terminate their
operations on April 1, 1975 It appears that you
feel that the employers temporarily terminated
their operations because Local 639 would not
224 NLRB No 64
MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C 357
agree to a secret ballot, FMCS supervised, refer-
endum as ratification procedure for the final
employer offer It is the employers' position that
you are free to use whatever means you deem
appropriate to ratify the employers' final offer
This is a matter solely up to the Union in han-
dling internal affairs
The letter concluded with the statement that the
lockout "continues only because there is no labor
contract We remain available to meet with represen-
tatives of the Local in order to resolve this matter "
In the meantime, the unit employees voted to re-
ject MAWA's contract offer on April 2 Thereafter,
the parties held several bargaining sessions, including
one on April 2 after the employees' rejection of
MAWA's proposal At this meeting De Brouse asked
Seward to end the lockout pending negotiations and
Seward replied that "we would not end the lockout
until we negotiated " The parties reached a tentative
agreement on April 24, which was ratified by the
membership on April 28 The lockout ended that
same day
The Administrative Law Judge found that
MAWA's threat to lock out its employees on March
31 and its subsequent lockout of the employees on
April 1 had a dual objective-to bring economic
pressure to bear on the Union in support of
MAWA's bargaining position and to coerce the
Union into adopting MAWA's proposed procedure
for ratification by unit employees of the contract
being negotiated The Administrative Law Judge fur-
ther found that the ratification procedure was a non-
mandatory subject of bargaining and that Respon-
dent could not lawfully lock out its employees in
support of its demands on such a subject He there-
fore concluded that the threat to lock out violated
Section 8(a)(1) and (5) of the Act and that the lock-
out itself violated Section 8(a)(1), (3), and (5) of the
Act We agree with these findings
The Administrative Law Judge further found that
MAWA retracted its nonmandatory demand regard-
ing the contract ratification procedure and thus
cured the lockout of its initial illegality Accordingly,
he concluded that the remainder of the lockout was
solely in support of MAWA's economic bargaining
position and was therefore lawful We disagree with
the conclusion that the lockout was converted to law-
ful conduct
In our view, a lockout unlawful at its inception
retains its initial taint of illegality until it is terminat-
ed and the affected employees are made whole In
this regard, contrary to the Administrative Law
Judge, we find analogous such cases as Retail Clerks
International Association, Local No 1179, AFL (Cali-
fornia Association of Employers), 109 NLRB 754
(1954), and Lawrence Typographical Union No 570,
affiliated with the International Typographical Union,
AFL-CIO (Kansas Color Press, Inc), 158 NLRB
1332 (1966)
In Retail Clerks Local 1179, the Board held that a
strike which was unlawful at its commencement be-
cause the union failed to give notice to the Federal
Mediation and Conciliation Service as required by
Section 8(d) of the Act was not rendered lawful by
the subsequent giving of such notice In so holding,
the Board emphasized that "To permit the Union to
continue unhampered the very strike which consti-
tutes the heart of its unlawful conduct would be to
countenance its continued flaunting of an explicit
proscription of the statute " 4 Likewise, in Lawrence
Typographical Union No 570, the Board adopted
without comment the Trial Examiner's finding that a
strike which initially violated Section 8(b)(7)(B) of
the Act because it commenced within 12 months of a
valid election continued to be unlawful after the ex-
piration of the 12-month period Although there was
no discussion of how the strike could be cured of its
illegality, implicit in the Board's decision is the con-
clusion that action which violates the Act at its com-
mencement continues to be unlawful for its entire
duration
We cannot agree with our dissenting colleague that
these cases are inapposite to the instant situation be-
cause they involved strikes which failed to meet stat-
utory conditions precedent for a lawful strike In our
view, it is wholly immaterial to a determination of
continuing impact of illegal activity whether the ac-
tivity was initially unlawful because it violated an
affirmative requirement of the statute or because its
motivation was unlawful This view is supported by
the Board's decision in The Arundel Corporation, 210
NLRB 525 (1974) In that case the Board found that
the union's strike commenced in violation of the par-
ties' no-strike agreement and did not become a law-
ful economic strike after the no-strike provision for-
mally expired because the union had not corrected
its unprotected action by terminating the strike The
Board further held that the unprotected strike consti-
tuted a valid affirmative defense to the union's
charge that the company unlawfully refused to bar-
gain The General Counsel had argued that it would
be futile to require the union to abandon the strike
on the expiration date because the strike could im-
mediately be resumed as a protected economic strike
The Board found no merit to this position, holding
that it would be wholly unwarranted and speculative
to assume that, had the strike terminated and bar-
gaining resumed, the parties would not have reached
4 109 NLRB at 759
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement, which would obviate the need for the
strike We conclude that similar considerations apply
in the instant case
The record shows that MAWA failed to dissipate
the effects of its unlawful lockout and to restore its
employees to the status quo ante Thus, MAWA
failed to offer reinstatement to the locked-out em-
ployees until April 28, never offered backpay for the
first 2 days of the lockout, and never acknowledged
its own wrongdoing to the employees with regard to
the lockout To the contrary, by the letter of April 1
referred to above, MAWA stated its position that the
lockout violated neither the parties' collective-bar-
gaining agreement nor the Act and that the locked-
out employees were not entitled to backpay In addi-
tion to MAWA's failure to affirmatively remedy the
illegal lockout, record evidence shows that the injec-
tion into bargaining of the lockout issues may well
have had some effect on negotiating a new contract
MAWA acknowledged in the April 1 letter that the
Union had taken the position that a lockout would
violate the collective-bargaining agreement and that
a new contract could not be negotiated until the
locked-out employees were paid their lost earnings
The union negotiators called a union membership
meeting at the advent of the unlawful lockout to dis-
cuss, inter aha, the charge the Union was filing Fi-
nally, the union president, in the March 31 telegram
quoted above, demanded at the lockout's outset that
MAWA end the lockout and reinstate the employees
in order for the negotiations to continue
In these circumstances, without a cessation of the
lockout and a restoration of the status quo ante, it is
difficult to conclude that any bargaining which en-
sued was not adversely affected, since the Union was
required to negotiate with MAWA and to ratify the
contract from a weakened position induced by the
unlawful lockout and the injection of the lockout-
related issues into the bargaining process To deny
that these issues complicated negotiations, which
were found by the Administrative Law Judge to have
gone smoothly until March 25, would be to ignore
collective-bargaining realities Similarly, to presume
that, if MAWA had offered reinstatement to the un-
lawfully locked-out employees on April 2, the lock-
out would have immediately been resumed on April
3 is speculative Considering the parties' long history
of peaceful labor relations, the smooth negotiations
through March 25, the 2 months remaining until the
busy season, and the Union's recognition that
MAWA could, after a hiatus, lawfully lock out for
economic reasons, it is not unlikely that collective
bargaining free of the unfair labor practices could
have resulted in an earlier contract In any event, the
burden must be on Respondent to show that its fail-
ure to restore the status quo ante had no adverse im-
pact on the subsequent collective bargaining For "it
rest[s] upon the tortfeasor to disentangle the conse-
quences for which it was chargeable from those from
which it is immune " N L R B v Remington Rand,
Inc, 94 F 2d 862, 872 (C A 2, 1938), cert denied 304
U S 576 Here no such showing has been made
Accordingly, based on all the foregoing, we con-
clude that the Administrative Law Judge erroneously
found that Respondent's withdrawal of its nonman-
datory demand cured the lockout of its initial illegali-
ty To the contrary, we conclude that the lockout
violated Section 8(a)(1), (3), and (5) of the Act for its
entire duration
AMENDED CONCLUSION OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 4
"4 By locking out the employees in the appropri-
ate unit on April 1, 1975, because, inter alia, the
Union failed and refused to submit Respondent's fi-
nal contract offer for ratification by the unit employ-
ees in the manner that Respondent had specified,
and by continuing said lockout until April 28, 1975,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of
the Act "
AMENDED REMEDY
Having found that Respondent unlawfully contin-
ued the April 1, 1975, lockout until April 28, 1975, we
shall, in addition to the remedy recommended by the
Administrative Law Judge, further order that Re-
spondent make such employees whole for any loss of
pay they may have suffered by reason of such unlaw-
ful conduct, by payment to each of them of a sum of
money equal to that which he or she would have
normally earned as wages from April 1 to April 28,
1975, less his or her net earning during said period,
such sums to be computed in the manner set forth in
F W Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co, 138 NLRB 716
(1962)
Additionally, because Respondent's violations of
Section 8(a)(3) go to the very heart of the Act, we
shall issue a broad order requiring Respondent to
cease and desist from in any other manner infringing
upon the rights guaranteed to its employees by Sec-
tion 7 of the Act N L R B v Entwistle Mfg Co, 120
F 2d 532 (C A 4, 1941)
MOVERS AND WAREHOUSEMEN'S ASSN. OF WASHINGTON, D C. 359
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 as modified
below and hereby orders that the Respondent, Mov-
ers and Warehousemen's Association of Metropoli-
tan Washington, D.C. Inc. and its Employer Mem-
bers, Jointly and Severally: Bekins Moving &
Storage Co., Colonial Storage Co., District Moving &
Storage Inc., Fidelity Storage Co., Lions Transfer
Co., Merchants Storage Co. of Va., Columbia Van
Lines Corp., Security Storage Co. of Washington,
Smith's Moving & Storage Co., Inc., and United
States Moving & Storage Co., Inc., their respective
officers, agents, successors, and assigns, shall, jointly
and severally, take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 1(d):
"(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Make whole all employees in the aforesaid
appropriate bargaining unit for any loss of pay they
may have suffered from April 1, 1975, to April 28,
1975, by reason of Respondent's unfair labor practic-
es herein found, in the manner set forth in the section
above entitled `The Remedy.' "
3. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
I agree with my colleagues and with the Adminis-
trative Law Judge that Respondent's threat to lock
out employees on March 31, 1975, violated Section
8(a)(1) and (5) of the Act and that the subsequent
lockout on April 1 violated Section 8(a)(1), (3), and
(5) of the Act. Contrary to the majority, however, I
would find, in agreement with the Administrative
Law Judge, that Respondent's retraction on April 2
of its nonmandatory bargaining demand cured the
lockout of its initial illegality.
The majority does not dispute the Administrative
Law Judge's conclusion that:
[B]argaining lockouts are presumptively privi-
leged even when they occur prior to a bargain-
ing impasse. That presumption may be over-
come only if it is shown by all the surrounding
circumstances that the lockout was motivated,
wholly or in significant part, by a purpose to
evade the duty to bargain, to discourage union
activity, or to achieve some other objective that
is inherently destructive of employee rights.'
In this case it is clear that after April 2 the lockout
was solely motivated by Respondent's desire to reach
a contract prior to the start of the busy season
around May 15. Under these circumstances, I agree
with the Administrative Law Judge that it would "ex-
alt form over substance" to require Respondent to
cease the lockout and return to the status quo ante,
only to resume the lockout a day, or perhaps even an
hour, later.
Contrary to the majority, and in agreement with
the Administrative Law Judge, Retail Clerks Local
1179, 109 NLRB 754, and Typographical Union No.
570, 158 NLRB 1332, are neither analogous to the
instant case nor precedent for the majority's holding
herein. In both those cases, the strikes at their incep-
tion failed to meet specific statutory conditions pre-
cedent to a lawful strike. In Retail Clerks, supra, the
union commenced a strike without giving the notice
required by Section 8(d) of the Act to the Federal
Mediation and Conciliation Service. In Typographi-
cal Union No. 570, supra, the strike was unlawful be-
cause it commenced within 1 year of a valid election.
Thus, to the extent that a lockout is the analogue of a
strike, these cases would be apposite if the lockout
herein violated some affirmative requirement speci-
fied in the statute. That is not, however, the situation
presented by this case, for here the lockout was ini-
tially unlawful because, and only becuase, it was in
part unlawfully motivated.
I would make a distinction between continuation
of activity unlawful at its inception because it vio-
lates an express statutory command, and otherwise
lawful activity which constitutes an unfair labor
practice solely because one of its dual objectives is
unlawful. In the former situation, I see no method by
which the taint of illegality may be removed short of
ceasing the unlawful conduct. The illegality in the
latter situation, however, may be cured, in my view,
by a clear showing that the unlawful motivation no
longer exists. Such a showing was unquestionably
made in this case by the April 2 letter, quoted by the
majority, in which Respondent specifically retracted
its unlawful objective for the lockout.
Similarly, The Arundel Corporation, 210 NLRB
525, upon which the majority also relies, is distin-
guishable. In that case, the Board majority found
that a strike which commenced in violation of a con-
tractual no-strike clause and continued after the
provision's stated expiration date constituted a valid
defense to a charge that the respondent employer un-
3 ALJD,III,E,3, par 3
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawfully refused to bargain The majority expressly
found, however, that the circumstances of that case
indicated that the parties contemplated extension of
the no-strike clause for a reasonable period after its
specified termination date and that-
[t]he exact terminal date of the no-strike exten-
sion herein is indeterminable because the Charg-
ing Party's unprotected strike in repudiation of
its agreement removed Respondent's obligation
to resume bargaining over the reopener issues
and it will have no obligation to engage in
such bargaining until the Charging Party
restores the status quo ante by terminating its un-
protected strike [Footnote omitted ] 6
Thus, it appears that the holding in Arundel Corpora-
tion was predicated at least in part on the majority's
conclusion that the union, by its own action in violat-
ing the no-strike clause, rendered it impossible to fix
a date for the provision's expiration In the instant
case, however, there is no basis for a similar conclu-
sion inasmuch as Respondent plainly and effectively
retracted its unlawful demand on a specific date
Accordingly, as there is no precedent for the
majority's holding in this case and since I do not
believe that the majority decision effectuates the pur-
poses of the Act, I respectfully dissent from my col-
leagues' conclusion that the lockout remained unlaw-
ful throughout its entire duration
6 210 NLRB at 527 I note, furthermore, that Member Jenkins who has
joined the majority herein, dissented in Arundel
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in, or threaten to engage
in, lockouts, layoffs, or other measures adversely
affecting the earnings of the employees in the
appropriate bargaining unit described below,
where an object thereof is to force or require
Local Union No 639, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor or-
ganization, to adopt methods or procedures pro-
posed by us for the ratification of contract of-
fers
WE WILL NOT discourage membership and ac-
tivities in Local Union No 639, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization, by discriminating in regard
to the hire or tenure of employment, or in any
other manner in regard to any term or condition
of employment, of employees in the appropriate
bargaining unit described below
WE WILL NOT refuse to bargain collectively in
good faith with the aforementioned Union, as
the exclusive bargaining representative of all our
employees in the appropriate bargaining unit de-
scribed below, by engaging in, or threatening to
engage in, lockouts, layoffs, or other retaliatory
measures adversely affecting the earnings of the
bargaining unit employees, where an object
thereof is to force the Union to adopt methods
or procedures proposed by us for the ratification
of contract offers
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7
of the National Labor Relations Act
WE WILL make whole the employees in the
bargaining unit described below for any loss of
pay suffered by them from April 1 to April 28,
1975, by reason of our lockout of the employees,
found by the Board to have been unlawful dur-
ing that period The bargaining unit is
All drivers, helpers, packers, freighters, ware-
housemen, tow-motor operators, foremen,
and such other employees as may be presently
or hereafter represented by the Union, but ex-
cluding clerical employees, guards and super-
visors as defined in the Act, who are engaged
in household moving and storage within the
jurisdiction of the Union, and who are em-
ployed by Employers (including those named
below) that are members of, and are repre-
sented for the purposes of collective bargain-
ing with the Union by, Movers and
Warehousemen's Association of Metropolitan
Washington, D C, Inc
MOVERS AND WAREHOUSEMEN'S ASSOCIATION
OF METROPOLITAN WASHINGTON, D C, INC
AND ITS EMPLOYER MEMBERS, JOINTLY AND
SEVERALLY BEKINS MOVING & STORAGE CO ,
COLONIAL STORAGE CO , DISTRICT MOVING &
STORAGE, INC , FIDELITY STORAGE CO , LIONS
TRANSFER CO , MERCHANTS STORAGE CO OF
VA , COLUMBIA VAN LINES CORP, SECURITY
STORAGE CO OF WASHINGTON, SMITH'S
MOVING & STORAGE CO, INC, UNITED
STATES MOVING & STORAGE CO , INC
MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C 361
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge Upon a charge
filed by the above-named Union on April 3, 1975, the Gen-
eral Counsel of the National Labor Relations Board, by
the Regional Director of Region 5, issued a complaint, dat-
ed May 7, 1975, against the above-named Association and
its Employer Members, jointly and severally (herein collec-
tively referred to as Respondent), alleging that Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the
National Labor Relations Act in respects to be specified
below A hearing was held at Washington, D C, on May
19 and 20, 1975 Briefs were filed by the parties on July 1,
1975
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
Movers and Warehousemen's Association of Metropoli-
tan Washington, D C, Inc, herein interchangeably re-
ferred to as the Association or MAWA, is a District of
Columbia corporation which exists for the purpose of ne-
gotiating and entering into collective-bargaining agree-
ments with the Union on behalf of its employer members
The Association's members are engaged in the assembly,
packing, storage, and local and interstate transportation by
motor carrier of household goods, office equipment, and
furniture During the past 12 months, a representative peri-
od, the Association's members individually and collectively
had gross revenues exceeding $50,000 from the interstate
transportation of household goods, office equipment, and
furniture The complaint alleges, the answer admits, and it
is found that Respondent is an "employer," as defined in
Section 2(2) of the Act, engaged in "commerce" and in
operations "affecting commerce," within the meaning of
Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local Union No 639, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) is a labor organization, within the
meaning of Section 2(5) of the Act
and Conciliation Service, and (b) discriminatorily locking
out such employees on April 1, 1975, and continuing that
lockout in effect until April 28, 1975, because the Union
failed and refused to submit the Respondent's "final" con-
tract offer for ratification in the particular manner speci-
fied by Respondent
Respondent in addition to denying the aforesaid allega-
tions of the complaint, affirmatively alleges in its answer
that the sole purpose of the lockout which began on April
1, 1975, was "to bring economic pressure in support of [the
Employer's] bargaining position, and to avoid a strike dur-
ing the Employer's busy summer season " Alternatively, it
is Respondent's position that, even if the lockout is found
to have been unlawful at its inception, it ceased to be such
on April 2, 1975
B Some Background Facts
The Union is the recognized exclusive bargaining repre-
sentative of an appropriate multiemployer bargaining unit
composed of the employees I employed by MAWA mem-
bers who have authorized that Association to represent
them in the negotiation and/or execution of collective-bar-
gaining contracts with the Union 2
MAWA was not formally organized as an employer as-
sociation until 1969 The record shows, however, that for
more than 20 years it had been the practice of the union-
ized moving companies in the Washington, D C, area, in-
cluding the companies that now are members of MAWA,
to bargain as a group with the Union That bargaining
relationship has been marked by stability and labor peace
It is undisputed that throughout that 20-year history of
bargaining the Union has never engaged in a strike or work
stoppage to support its bargaining demands-and this even
though there were some occasions during that period when
negotiations for a successor agreement were not finally
completed until some time after the expiration of the previ-
ous agreement
The moving industry in the Washington, D C, area is
characterized by seasonal trends Most of the industry's
business is done between May 15 and October 15 The
collective-bargaining agreements prior to 1969 contained a
May 31 expiration date During the 1969 negotiations, the
expiration date was changed to March 31, and has re-
mained so in the labor contracts since negotiated The
change in date was effected at the request of the employers
who wished to avoid contract negotiations during their
peak busy period when they were most vulnerable to a
strike
A significant amount of business available for moving
III THE UNFAIR LABOR PRACTICES
A The Issues
The complaint alleges in substance that Respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act by (a) threaten-
ing to lock out employees of Respondent represented by
the Union unless the Union should agree to submit
Respondent's "final" contract offer for ratification by a
mail ballot vote to be conducted by the Federal Mediation
i All drivers, helpers, packers, freighters, warehousemen, tow-motor oper-
ators foremen, and such other employees as may be presently or hereafter
represented by the Union, but excluding clerical employees, guards, and
supervisors as defined in the Act, engaged in household moving and storage
within the jurisdiction of the Union
2 The collective-bargaining agreement which was entered into between
the MAWA and the Union following the events here in controversy identi-
fies as the MAWA-represented employers in the negotiation of that agree-
ment all of the companies listed in the caption of this case, except for
Merchants Transfer and Storage Co, which, the record shows, is the parent
company of Merchants Storage Co of Virginia
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
companies in the Washington, D C, area consists of Gov-
ernment contract work which is obtained on bid Three of
the major Government contracts, for State Department
outbound, inbound, and baggage moving work, were to
expire on February 28, 1975, with bids for new contracts
due sometime before that date Before that due date, sever-
al of the MAWA members, acting as a group, arranged
with the State Department to extend the term of the old
contracts to April 30, 1975, and the bidding date on the
new contracts to April 15, 1975, so that before submitting
their bids they might be able to know what their future
wage costs would be under the new labor contract with the
Union that was then coming up for negotiations
The Teamsters International constitution requires that
collective-bargaining contracts negotiated by Teamsters lo-
cal members must be ratified by the union members in-
volved in the negotiations before such contracts can be-
come effective Normally a majority vote is required for
acceptance or rejection Under certain circumstances, how-
ever, i e, when a strike vote is contemplated, an offer can
be rejected only by a two-thirds vote of the affected mem-
bership The applicable provisions are spelled out in article
XII, section 1(b), of the Teamsters constitution In relevant
part, they are as follows
(b) Contracts may be accepted by a majority vote of
those members involved in negotiations and voting, or
a majority of such members may direct further negoti-
ations before a final vote on the employer's offer is
taken, as directed by the Local Union Executive
Board When in thejudgment of the Local Union Ex-
ecutive Board, an employer has made a final offer of
settlement, such offer must be submitted to the in-
volved membership and can be rejected only by a two-
thirds (2/3) vote of the members involved in the nego-
tiations and voting or responding to a referendum
mail ballot If a settlement cannot be reached, the Lo-
cal Union Executive Board shall order a secret ballot
to be taken and it shall require a two-thirds (2/3) ma-
jority of the members of the Local Union involved in
such negotiations and voting to adopt a motion to
strike The failure of such membership to author-
ize a strike upon rejecting the employer's last offer
shall require the Local Union Executive Board to ac-
cept such last offer or such additional provisions as
can be negotiated by it
The basic issue in this case relates to the legality of a
lockout which occurred in the course of negotiations be-
tween MAWA and the Union for a new labor contract to
supersede the earlier 1972-75 contract between the same
parties which terminated on March 31, 1975 Negotiations
for that earlier contract had been conducted on behalf of
the Union by one of its business agents, Everhart Frank
De Brouse the president and top official of the Union, had
not participated in those negotiations The MAWA's "fi-
nal" proposal for that contract had been submitted to the
unit employees for ratification under a voting procedure
known as a "barn vote", i e , one in which the balloting
was conducted at the places of employment of the unit
employees, rather than at the union hall Moreover, under
the voting procedure used in 1972 a two-thirds negative
vote was required for rejection of the MAWA "final" offer
The 1972-75 contract had been ratified under that proce-
dure although, in fact, less than a majority had voted to
accept the contract De Brouse had been displeased with
the 1972 contract, particularly with certain of its health and
welfare and pension provisions In conversations with
management representatives during the term of the 1972-
75 contract, De Brouse had frequently voiced his displea-
sure with that contract, as well as with the voting proce-
dure that had been used for its ratification, and had stated
that he would never allow a barn-by-barn vote to happen
again
De Brouse designated Business Agent Roland Warren in
the place of Everhart as the union agent who was to con-
duct the 1975 negotiations In preparing for the 1975 nego-
tiations, Warren met with the Union's shop stewards in the
industry who complained to him about the voting proce-
dures that had been used in 1972, claiming that the vote in
1972 had been improperly influenced by employer inter-
vention Warren pledged that votes on the 1975 contract
would take place in the union hall and not at the individual
"barns" of MAWA members At the first negotiating meet-
ing on the 1975 contract, Warren informed the MAWA
representatives of the commitment he had made
C Events Leading to the Lockout on April 1
About 90 days before the March 31, 1975, expiration
date of the 1972-75 contract, the Union served notice on
Respondent of its desire to modify the terms of that con-
tract, stating that it would send its proposal to Respondent
"in the near future " It had been the practice of the parties
in the past to start actual negotiations for a new contract
about a month before the expiration date of the old con-
tract In 1975, the MAWA did not press for an earlier start-
ing date On February 28, 1975, Virgil Seward, the chair-
man of the MAWA negotiating committee, in a letter to
Union Business Agent Warren, suggested that the first ne-
gotiating meeting be scheduled for the first week in March,
expressing his hope that "this early start in the negotia-
tions" would produce a mutually beneficial agreement On
March 6, Warren sent Respondent a copy of the Union's
proposals The first meeting was scheduled for the follow-
ing Monday, March 10
Four negotiating sessions were held prior to the April 1
lockout-on March 10, 18, 20, and 25, each one lasting
more than 4 hours, and at least one for the entire day
Warren acted as the negotiator for the Union during the
first three meetings, and was joined at the March 25 meet-
ing by De Brouse 4 Virgil Seward, an officer of Merchants
Storage Co of Virginia, served as the chairman of the
MAWA negotiating committee Respondent contended at
the hearing that the Union at these meetings deliberately
engaged in stalling tactics, disclosing a purpose to extend
3 The adjournment from March 10 to 18 was at the request of the MAWA
negotiator The adjournment from March 20 to 25, was requested by the
Union because of the interim unavailability of De Brouse
° At the March 10 meeting Warren had informed the MAWA representa-
tives that De Brouse would appear at a later stage of the negotiations since
Warren felt he lacked sufficient experience with the moving and storage
industry to conclude an agreement by himself
MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C
the negotiations into the busy season The record does not
support that contention
The March 10 meeting was devoted mainly to an item-
by-item review of the Union's proposals At this meeting
Warren assured the MAWA representatives, in response to
their inquiry, that only employees of the MAWA members
involved in the negotiations would be permitted to partici-
pate in ratification votes But at the same time he made
clear that the Union intended this time to conduct such
votes at the union hall, and not at the barns as in 1972
The March 18 and 20 meetings were taken up with the
consideration of noneconomic issues The MAWA yielded
on some of the Union's demands, and others were dropped
by the Union Agreement was reached on a substantial
number of matters, including among them items relating to
shop steward seniority, the posting of seniority lists, em-
ployee warning notices, uniform work rates, funeral leave,
meal allowances, petty cash advances, and vacations By
the end of the March 20 meeting, which lasted all day, the
negotiating parties had resolved almost all the noneconom-
ic issues arising from the Union's proposals
At the beginning of the March 25 meeting, the first in
which De Brouse participated, the Union withdrew three
of its noneconomic demands not theretofore resolved That
meeting was confined almost entirely to the consideration
of wage rates, employer contributions for health and wel-
fare and for pensions, and contract duration Prior to the
March 25 meeting, the MAWA had not submitted any pro-
posals of its own, and discussion of economic items had
been deferred pending resolution of other items at issue
The Union in its initial proposal presented on March 6 had
asked for a $2 hourly increase for drivers and $1 50 for
helpers, apparently on the basis of a 1-year contract, as
well as for increases in the amount of the employers' con-
tributions for health and welfare and pensions At the
March 25 meeting, the MAWA offered at first a 20-cent-
per-hour wage increase for all employees in each year of a
3-year contract, as well as certain increases in employer
contributions for pensions and health and welfare, increas-
es which, while substantial in amount, were less than those
asked by the Union The Union rejected that offer as un-
realistic, and later in the meeting counterproposed a 2-year
contract with yearly increases of 75 cents per hour for all
employees After further discussion, in the course of which
the MAWA made an intermediate offer which was also
rejected, the MAWA representatives caucused and then
came back with a wage fringe benefit package on all eco-
nomic items in dispute, declaring that this was their "final"
offer The "final" offer proposed, inter alga, a 3-year con-
tract with annual wage increases of 30 cents, 30 cents, and
30 cents for drivers and 30 cents, 30 cents, and 20 cents for
helpers That offer was made orally, but the MAWA repre-
sentatives stated that it would be drawn up in written form,
covering all items not previously settled, and would be sub-
mitted to the Union so that it might be presented to the
unit employees for their acceptance or rejection
De Brouse agreed to the request of the MAWA negotia-
tors that Respondent's "final" offer be submitted to the
bargaining unit employees for a vote But at the same time
he made clear that he would not recommend the offer for
acceptance Seward for MAWA requested that the vote be
363
conducted in the barns in accordance with the procedure
the Union had adopted for the ratification of the 1972 con-
tract, stating, inter aha, that "we couldn't get a contract at
the hall," if De Brouse was unwilling to "sell" it But De
Brouse rejected that request, reminding Seward that War-
ren had made a commitment that any votes that were to
take place on the question of contract ratification would be
conducted at the union hall No suggestion was made at
this meeting by the MAWA representatives for a mail bal-
lot When pressed for a date when the matter would be
brought to a vote, De Brouse stated that because of the
upcoming holiday weekend 5 and his personal commit-
ments, the earliest date on which the vote could be held
would be the following Tuesday, April 1, 1975
As the March 25 meeting was about to break up, either
Warren or De Brouse, noting that March 31 would mark
the expiration date of the then existing contract and that it
now appeared that a contract could not be consummated
by that date, asked what the MAWA position was on retro-
activity Seward replied that he had no authority from the
Association to agree on retroactivity but that he would
take up the matter with the Association's members and
would let the Union know after he had done so 6
On March 27, 1975, the Association transmitted to the
Union the complete written summary of the MAWA "fi-
nal" offer which at the March 25 meeting it had told the
Union it would prepare The document was entitled "Final
Employer Offer " The Association in its letter to the Union
accompanying the written statement of its offer alluded to
the Union's request for retroactivity and set forth its posi-
tion on that question as follows
At the conclusion of the employers presentation on
March 25, 1975, and after an extensive discussion of
the offer, the Local Union' s Bargaining Committee re-
quested that the employer committee agree to retroac-
tivity That is, the Local Union indicated that it would
be physically impossible to call a meeting of the em-
ployees covered by the moving and storage collective-
bargaining agreement until at least Tuesday, April 1,
5 March 28 was Good Friday, and the Union s offices were to be closed
for a holiday beginning that afternoon and extending through Easter Mon-
dai March 31
Seward testified that when he told De Brouse that he would have to
submit the question of retroactivity to the Association's members De
Brouse remarked, If you don t agree to retroactivity we will have to hit the
streets April I " Warren disclaimed any recollection of such a statement
having been made and De Brouse, although not questioned specifically
about that statement, testified in general terms that there was no 'discus-
sion of striking at the meeting Although Seward s testimony in a number
of other respects revealed him to be less than a fully credible witness his
testimony in this respect was corroborated by Fleming Newboldt a director
of Merchants Transfer and Storage Co who had been present as an ob-
server at the March 25 meeting Newboldt impressed me as a reliable wit
ness, and his testimony evidenced a vivid recollection of this incident I
credit Seward s testimony as corroborated by Newboldt and find that De
Brouse made the remark attributed to him by Seward and Newboldt Subse-
quent events reveal however, that Respondent did not really believe that
the Union would strike on April 1 if retroactivity was not earlier agreed on
Quite clearly Respondent would not have locked out its employees on April
I had it believed they were about to strike that day Tne record shows
moreover that the MAWA representatives were aware at that time that a
strike could not be called by the Union unless and until the MAWA `final"
offer was first submitted to a ratification vote and rejected by a two thirds
negative vote
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1975, and therefore requested that the employer com-
mittee agree to make the increases retroactive The
Employer Negotiating Committee informed the Local
that they would take the request for retroactivity un-
der advisement and provide the Local with an answer
as soon as possible
This letter is to inform you that the Employer Com-
mittee will agree to retroactivity of the final offer con-
tained herein, from April 1, 1975, through and includ-
ing April 7, 1975, subject to Local 639 submitting this
offer as a final offer of settlement to the employees
covered by the collective-bargaining agreement
through a referendum mail ballot pursuant to the
terms of Article XII, Section 1(b) of the International
Constitution Under the terms of this Article the offer
can be rejected only by a two-thirds (2/3) vote of the
members involved in the negotiations and voting or
responding to the referendum mail ballot The ballot-
ing of the membership would be conducted under the
auspices of Mr Harold Mills, the mediator assigned to
these negotiations by the Federal Mediation and Con-
ciliation Service Ballots will be returned to Mr Mills
and he would provide both Local 639 and the Em-
ployer Committee with the results of the membership
ballotting no later than 4 p in, Monday, April 7, 1975
If the above proposal concerning retroactivity and a
mail ballot is acceptable to the local union, our Nego-
tiating Committee will cooperate in every way with the
union representatives to insure that the mail ballot is
accurately prepared and distributed to all employees
covered by the collective-bargaining agreement no lat-
er than Friday, March 28, 1975 Please notify us no
later than tomorrow morning if this proposal is ac-
ceptable
On March 27 or 28, De Brouse telephoned Seward and
rejected the mail ballot ratification procedure the MAWA
had proposed in its March 27 letter De Brouse, as appears
from his testimony, credited in this respect, told Seward
that he had apparently misread the provisions of the
International's constitution relating to voting procedures
on contract proposals De Brouse explained that a simple
majority was all that was required for acceptance or rejec-
tion of a contract proposal, that the two-third rejection
rule was applicable only when in the judgment of the
Local's executive board the offer was a final one with strike
action as the only apparent alternative to acceptance, and
that in this instance even if the Union's executive board
were to take action to authorize the two-third rejection
rule, the vote would have to be taken at the union hall
because of the commitment Warren had made Seward's
only response was that the MAWA offer was a "final" one
On March 31, 1975, Seward for the MAWA addressed a
letter to De Brouse, which he read to Warren over the
telephone that morning 7 Seward began his letter by refer-
7 The union office was closed that day Seward, however, was able to
contact Warren at the home of out of-town relatives whom he was then
visiting
ring to a telephone conversation he had had with De
Brouse and Warren on March 28, in which, he stated, they
had "rejected the [MAWA] final offer for a 3-year collec-
tive-bargaining agreement contained in the [MAWA] letter
of March 27, 1975 " The letter then went on to declare
As we advised you, the Association's membership can-
not afford to operate after the March 31, 1975, expira-
tion of the current collective-bargaining contract with-
out the stability of a continuing labor agreement
Therefore, unless you advise us to-day that you will
submit the employers' final offer to the membership
by way of the mail ballot procedure we proposed to
you on March 27, 1975, with the provision that the
employers offer would be retroactive from April 7,
1975, back to April 1, 1975, in order to allow the
counting of ballots, the Association's membership will
be forced to terminate operations by bargaining unit
personnel on Tuesday, April 1, 1975
On April 1, 1975, the MAWA members suspended oper-
ations, laying off all the bargaining unit employees The
lockout continued until April 28, 1975
D Events Following the Lockout
De Brouse testified that in telephone coversations with
Seward on March 31, following receipt of the MAWA let-
ter of that date, and again on April 1, he told Seward that
the Union would regard lockout action by the MAWA
members as an unfair labor practice De Brouse's testimo-
ny, although not entirely clear in this respect, indicates that
on April 1 he also informed Seward that the Union was in
process of preparing unfair labor practice charges against
Respondent 8 De Brouse's testimony to the foregoing ef-
fect, although disputed by Seward, is credited
On April 2, 1975, Seward, after conferring with MAWA
counsel addressed a letter to De Brouse, which was pre-
pared for his signature The letter strongly suggests that, as
a result of a telephone conversation between Seward and
De Brouse after the institution of the lockout, the Associa-
tion had become concerned that its lockout action might
be viewed as an unfair labor practice because of the choice
given the Union in the Association's letter of March 31 of
either agreeing to the specific ratification procedure the
Association had proposed or suffering a lockout, and that
the Association had now decided that it would be prudent
to revise its previously declared position in that respect
In his letter of April 2, addressed to De Brouse, Seward
stated in part
In response to your telephone call of yesterday, it is
important to reiterate the reason why the employers
found it necessary to terminate their operations on
April 1, 1975 It appears that you feel that the employ-
ers temporarily terminated their operations because
Local 639 would not agree to a secret ballot, FMCS
supervised, referendum as ratification procedure for
the final employer offer It is the employers position
8 The charge in this case, which is signed by the Union's attorney, is dated
April 1, 1975 It was not filed with the Regional Office, however, until April
3, and was served on April 4
MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C
that you are free to use whatever means you deem
appropriate to ratify the employers' final offer This is
a matter solely up to the Union in handling internal
union affairs
The letter then went on to state in substance that the Asso-
ciation had initially, on March 27, suggested the FMCS
supervised mail ballot procedure along with 1 week's retro-
activity only as a counterproposal to the Union's demand
for open-ended retroactivity, that in its March 31 letter the
Association had renewed that counterproposal, although it
had earlier been rejected as a "procedure" which would
have allowed employers' operations to continue while the
employees were given an opportunity to vote on the
Association's "final" contract offer, and that when that
counterproposal was again rejected, the employers had de-
cided to "temporarily terminate operations until agreement
could be reached on a renewal contract The temporary
termination-the letter concluded-"continues only be-
cause there is no labor contract We remain available to
meet with representatives of the Local to resolve the mat-
ter"
When the Association's April 2 letter was sent, the
Union had already scheduled a meeting to be held at the
union hall on the afternoon of April 2 for employee consid-
eration of the Association's contract offer At the union
meeting held at that time, the employees voted to reject the
offer
Immediately following the union meeting on April 2, the
MAWA negotiators met with the Union's negotiators at
the latter's request The Union informed the Association of
the employees' rejection of the Association's offer, stated
that its demand was still for it 2-year contract with eco-
nomic terms substantially the same as they had been on
March 25, and proposed that the lockout be halted while
negotiations continued The Association reiterated its final
economic proposal of March 27, and declared that it would
continue its lockout until the parties reached a contract
Both sides remained adamant at that meeting in their pre-
viously declared contract positions
Thereafter, the parties had some five bargaining sessions
under the auspices of a FMCS mediator-on April 4, 16,
21, 23, and 24 The General Counsel stipulated that both
parties bargained in good faith during these meetings No
progress was made at the meeting of April 4, but, begin-
ning with the meeting of April 16, both the Association and
the Union made substantial modifications in their re-
spective positions, gradually narrowing the area of their
differences A proposal made by the Association on April
21 was taken to employees for a referendum vote at the
union hall, but was rejected Thereafter, after further modi-
fications were made by each side in their bargaining posi-
tions, a tentative agreement was reached on April 24 be-
tween the union and Association negotiators which
provided, inter alta, for a 3-year contract, with annual wage
increases of 50 cents, 40 cents and 40 cents for drivers and
40 cents, 35 cents and 35 cents for helpers That agreement
was ratified at a meeting at the union hall on Monday,
April 28 On the same day the MAWA employers ended
the lockout
E Analysis and Concluding Findings
1
365
Although this case was litigated on a broader basis, the
scope of the complaint is a narrow one As noted above,
the complaint alleges in substance that Respondent violat-
ed Section 8(a)(l), (3), and (5) of the Act by ( a) threatening
to lock out the bargaining unit employees unless the Union
agreed to submit Respondent's "final" contract offer to its
employees for a ratification vote under the particular mail
ballot procedure specified by Respondent, and no other,
(b) locking out the employees on April 1, 1975, because the
Union failed and refused so to agree, and (c) continuing
the lockout in effect until April 28, 1975, for the same rea-
son I am satisfied that under applicable principles of law
the record supports violation findings with respect to the
complaint's allegations identified immediately above as (a)
and (b), but not as to (c)-and this for the reasons to be
stated below
2
The threat referred to in the complaint is to be found in
the Association's letter to the Union, dated March 31,
1975, wherein the Association informed the Union that un-
less the Union agreed that day to submit Respondent's "fi-
nal" contract offer to a referendum vote of its membership
to be conducted under the particular procedure specified
by Respondent-FMCS supervised mail balloting with a
two-thirds negative vote required for rejection-the Re-
spondent employers would terminate operations by bar-
gaining unit personnel on April 1, 1975 The Union previ-
ously, at the March 25 meeting, while agreeing to submit
Respondent's "final" offer for a referendum vote by unit
employees, had made clear its intent to conduct that vote
at the Union hall where its president, De Brouse, could
express his objections to the offer in a face-to-face meeting
with the affected employees As the record reveals, the rati-
fication procedure desired by the Union was displeasing to
Respondent's negotiators They were of the belief that their
offer would stand little chance of gaining employee ap-
proval if that procedure were followed, particularly with
De Brouse opposing Respondent's contract offer
It is evident that Respondent's negotiators were de-
termined, as part of their bargaining strategy, to impose on
the Union if they could a ratification procedure more to
their liking, one under which the vote would be conducted
away from the union hall, with a minority vote of one-third
plus one enough to obtain approval of Respondent's offer
Thus, at the meeting of March 25, Respondent's represen-
tatives pressed for a barn-by-barn ratification vote proce-
dure, such as had been used in 1972, though they previous-
ly had been made aware of the Union's commitment to its
membership not to repeat that procedure in 1975 Also at
that meeting, Respondent's negotiators sought to lay the
foundation for a one-third-plus-one approval vote by label-
ing their offer a "final" one 9 At the March 25 meeting, the
9 As Respondent's brief concedes, the Association's negotiators were then
Continued
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union reiterated its firm intent to conduct all ratification
votes that year at the union hall Nevertheless, on March
27, when Respondent submitted its counterproposal to the
Union's demand for retroactivity, it conditioned the 1
week's retroactivity it offered upon the Union's adopting a
mail balloting voting procedure on its contract offer, with a
two-thirds vote required for rejection 1C The Union rejected
the mail ballot ratification procedure proposed in the
March 27 letter, once again reiterated its intention to con-
duct the ratification vote at the union hall, and also made
Respondent's negotiators aware of their misinterpretation
of the provisions in the Teamsters constitution relating to
ratification vote requirements Notwithstanding all this,
Respondent persisted in its effort to obtain the form of
ratification vote it wanted via its March 31 letter
Respondent asserts in its brief that its only reason for
referring in its March 31 letter to the mail ballot procedure
was to show that its previously retroactivity counterpropo-
sal (which had already been unequivocally rejected by the
Union), was still being offered I find that explanation un-
persuasive It appears to me to distort the plain sense of the
letter That letter, as I read it, in effect presents the Union
with this ultimatum Either agree to the specific ratification
procedure we want (and if you do we will throw in 1 week's
retroactivity as a sweetener) or suffer a lockout beginning
tomorrow morning Similarly, I find unpersuasive Re-
spondent's further assertion that it conditioned the with-
holding of lockout action upon the Union agreeing to its
proposal mail balloting procedure because it wanted to as-
sure the holding of an early ratification vote that would
limit the period of the retroactivity it was offering That
assertion would have been more impressive, and indeed
might have led me to reach a different conclusion on the
issue in this case, had Respondent not restricted the meth-
od of ratification procedure that the Union had to agree to
if it was to avoid a lockout As found above, the Union had
in fact earlier agreed to conduct a ratification vote on
Respondent's contract proposal at the union hall, though
indicating it could not arrange a meeting until April 1 or 2
Mail balloting, a slower procedure, could not have been
completed with all ballots counted until April 7 at the earli-
est Even if Respondent, as it says, had no definite commit-
ment from the Union that a ratification vote would be held
on April 1 or 2, this would not explain why Respondent
could not have set a deadline for a ratification vote without
also attempting to dictate the manner in which that vote
was to be conducted The fact that Respondent was willing
to withhold lockout action pending a ratification vote if the
particular method of ratification it wanted was adopted,
but not if the Union chose some other method, clearly dis-
closes that Respondent's focus was not in the length of
retroactivity, but on the method of ratification
It is also noted that Respondent in its letter of March 31
under the mistaken belief that by so characterizing the offer the Union
would be obliged under its constitution to adopt a ratification procedure
that required a two-thirds vote for rejection
10Though a nonmandatory subject of bargaining the inclusion of that
condition in the March 27 counterproposal was not unlawful in itself, for it
was not made part of Respondents general contract offer and, unlike the
repetition of that condition in the March 31 letter, it was not accompanied
by a threat of lockout if not accepted
expressly conditioned the withholding of lockout action,
not on acceptance of Respondent's contract offer, but sole-
ly upon acceptance of Respondent's proposed ratification
procedure It is thus evident that, even if Respondent be-
lieved that a lockout was desirable to support its bargain-
ing position, it would have withheld such lockout action at
least until a referendum vote on its contract offer was com-
pleted, had the Union agreed to the particular ratification
procedure Respondent was pressing for This is but anoth-
er way of expressing the finding I make that Respondent
locked out the unit employees on April 1 because the
Union failed and refused to agree to submit Respondent's
"final" contract offer for ratification by a FMCS mail bal-
lot vote, as the complaint alleges
What has been said above clearly refutes Respondent's
primary contention in this case, that the "sole purpose" of
the lockout action initiated by it on April 1 "was to bring
economic pressure in support of [its] bargaining position,
and to avoid a strike during [its] busy season " Re-
spondent's ultimate objective, of course, was to obtain a
contract satisfactory to it But its immediate object in pre-
senting its ultimatum to the Union on March 31, and in
implementing that ultimatum with the lockout action taken
the following day, I am convinced and find, was to force
the Union to yield to its position on the ratification proce-
dure to be adopted on its then pending "final" contract
offer
It is well-settled law that where a lockout has a duality of
objectives, one lawful, the other not, the presence of the
lawful objective does not immunize the lockout from con-
demnation under the Act 11 Left for consideration, then, is
the question whether Respondent's effort through use of
coercive measures to adopt the form of ratification proce-
dure it wanted was unlawful under the Act For the reasons
not to be stated, I find that it was
Procedures relating to the ratification of contracts are
internal union matters and are not mandatory subjects of
bargaining Although an employer may request bargaining
on such matters, it has been held to be a per se violation of
Section 8(a)(5) and (1) of the Act for him to insist on push-
ing his position to an impasse 12 In the Houchen's Market
case, the court explained its holding to that effect as fol-
lows
The Company, by insisting that the contract be
approved or ratified by a majority of the employees,
was attempting to bargain not with respect to "wages,
hours and other terms and conditions of employment"
but with respect to a matter which was exclusively
within the internal domain of the Union Members of
a union have the right to determine the extent of au-
thority delegated to their bargaining unit It is within
their province to determine whether or not their bar-
gaining unit may enter into a binding contract with or
without membership ratification It is not an issue
which the Company can insist upon without mutual
See, e g Wire Products Manufacturing Co 198 NLRB 652 (1972)
12 See N L R B v Wooster Division of Borg Warner Corporation 356 U S
342 (1958), Houchens Market of Elizabethtown, Inc v N L R B, 375 F 2d
208, 212 (C A 6, 1967), Southwest Michigan Gas Company, 206 NLRB 60
(1973) Darlington Veneer Company 113 NLRB 1101 (1955) enfd 236 F 2d
85 (C A 5 1956)
MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C
agreement by the Union, any more than the Union
can insist that the contract be submitted to the Board
of Directors or stockholders of the Company
And in the Borg-Warner case, supra, where the Supreme
Court upheld the Board's finding that it was a violation of
Section 8(a)(1) and (5) of the Act for an employer to condi-
tion the acceptance of a collective-bargaining agreement
on the inclusion of a strike "ballot" clause, the Supreme
Court as one of the reasons for its holding, stated at 350
[The ballot clause] substantially modifies the collective
bargaining system provided for in the statute by weak-
ening the independence of the representative chosen
by the employees
Respondent contends that the cited cases are inapposite
here because in each of them the employer was insisting on
its proposed ratification provision as a condition precedent
to the consummation of any agreement, whereas it is not
true in the case at hand Plainly, if it is unlawful for an
employer to insist to an impasse on a particular method of
ratification, it is also unlawful for him to utilize the far
more drastic economic pressure of a lockout in an effort to
achieve the same objective Here, no less than in the cited
cases, Respondent's conduct involved an unwarranted and
coercive intrusion into the Union's internal affairs that was
at war with its bargaining obligation to accord the Union
the full measure of recognition that is its statutory due In
that sense, I find Respondent's conduct amounted to a re-
fusal to bargain with the Union in good faith in violation
of Section 8(a)(5) of the Act
In any event, more is involved here than simply the ques-
tion of whether Respondent's complained of conduct
amounted to a lack of good-faith bargaining within the
meaning of Section 8(a)(5) Also involved is the question
whether, apart from a refusal to bargain, Respondent's
conduct constituted an independent violation of Section
8(a)(1) I find that it did There can be little doubt that, in
furtherance of their Section 7 right to engage in self-organi-
zation and to bargain collectively through their own repre-
sentatives , employees may delegate to their duly designated
bargaining agent authority to act on their behalf to regu-
late internal union affairs, including whether, when, or how
employer contracts are to be submitted for ratification In
taking the position it did on the subject of ratification, the
Union was thus exercising on behalf of the represented
employees a statutorily protected employee right It follows
that Respondent's coercive conduct aimed at pressuring
the Union to alter its position on that subject trenched on
employee rights in violation of Section 8(a)(1) I so find I
further find that Respondent's action in laying off (locking
out) the employees was also violative of Section 8(a)(3)
since it constituted union-related discrimination in employ-
ment of a kind that inherently discourages union member-
ship 13
13 It is noted, however, that the remedial Order recommended below
would be the same whether such conduct is found violative of Sec 8(a)(1) or
8(a)(3) or both
3
367
Having found that the lockout was unlawfully instituted
by Respondent on April 1, 1975, I turn now to consider the
issue raised by Respondent's alternative defense that the
4-week lockout that began on April 1, 1975, even if unlaw-
ful at its inception, ceased to be so on April 2, 1975 For
the reasons stated below, I find merit in that defense
It has been found above that, but for the Union's refusal
to agree to the mail ballot balloting ratification procedure
Respondent had proposed, Respondent would have with-
held lockout action at least until its then pending contract
offer was submitted to an employee referendum vote
Respondent's unlawful objective to force the Union to
yield to the particular ratification procedure Respondent
had proposed failed of its purpose on April 2, 1975, when
the Union conducted a referendum vote at the union hall
and the contract offer was voted down On the same day,
Respondent retracted the unlawful condition for lockout
avoidance stated in its letter of March 31, and made it
clear to the Union that it was continuing its lockout only to
bolster its position on its contract offer
In Local 374, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-
CIO [American Ship Building Co ] v N L R B, 380 U S
300 (1965), the Supreme Court ruled that an employer does
not violate the Act when he locks out his employees "for
the sole purpose of bringing economic pressure to bear in
support of his legitimate bargaining position " It is true, as
the Union emphasizes, that the Supreme Court expressly
limited its holding in that case to lockouts occurring after a
bargaining impasse was reached But I find no need to
determine the issue litigated in this case as to whether there
was a bargaining impasse at the time of the lockout Subse-
quent Board decisions have extended the rationale of
American Ship Building to preimpasse lockouts 14 Under
the Board's current view, as I understand it, bargaining
lockouts are presumptively privileged even when they oc-
cur prior to a bargaining impasse That presumption may
be overcome only if it is shown by all the surrounding
circumstances that the lockout was motivated, wholly or in
significant part, by a purpose to evade the duty to bargain,
to discourage union activity, or to achieve some other ob-
jective that is inherently destructive of employee rights
The absence of an impasse may in certain situations be a
relevant fact to be weighed in the balance in determining
whether the totality of circumstances are such as to support
an inference that the lockout was unlawfully motivated
But it is not alone enough to establish a per se violation
Nor does the Board now require, as it did prior to Ameri-
can Ship Building, that an employer, to justify a bargaining
lockout, must demonstrate the existence of operational or
other special economic circumstances sufficient in kind
and degree to support a finding that the lockout was war-
ranted as a necessary defensive measure to counter threat-
ened strike action 15
14 See e g The Evening News Association Owner and Publisher of "The
Detroit News"; 166 NLRB 219 (1967), Darling and Company, 171 NLRB 801
(1968) affil sub nom Lewis Lane v NLRB 418 F 2d 1208 (CAD C
1969) Stokely Van Camp, Inc, 186 NLRB 440, 450-451 (1970)
15 Cf Duluth Bottling Association 48 NLRB 1335, 1359-60 (11943) Betts
Cadillac Olds Inc, 96 NLRB 268 (1951)
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence in this case that Respondent's con-
tinuation of its lockout after April 2 was motivated in
whole or in part by any unlawful consideration or was
otherwise in the service of any design inimical to the pro-
cess of collective bargaining Indeed, the General Counsel
stipulated at the hearing that Respondent at all times after
April 2 bargained with the Union in good faith Nor can it
be said in this case that Respondent's continuation of the
lockout after April 2 was entirely devoid of economic Justi-
fication Respondent's interest in forcing an early resolu-
tion of its contract dispute with the Union in order to avoid
crisis bargaining during its approaching busy season can-
not be regarded as either improper or insignificant More-
over, the Union had given Respondent reason to believe
that it would not enter into a contract settlement without
retroactivity and would strike if necessary to obtain it As
the Respondent employers were engaged in a service indus-
try where quoted prices had to be certain, and as such
prices were based in large measure on labor costs, Respon-
dent also had a significant economic interest in suspending
operations during a period when its labor costs would be
uncertain
The General Counsel and the Union argue broadly that
where, as here, a lockout unlawful at its inception is contin-
ued without physical hiatus, it must, as a matter of law, be
deemed to retain its initial taint of illegality for its dura-
tion, and this though the condition which initially made it
unlawful has been eliminated Neither the General Counsel
nor the Union have cited any apposite authority to support
their contention in this respect 'PAS applied to a situation
such as is present here, I am convinced that their conten-
tion has no validity Had Respondent in this case terminat-
ed its lockout on April 2, and then had, say on April 3,
reinstated it, for the sole purpose of supporting its legiti-
mate bargaining position, there could not possibly be any
question as to the legitimacy of the lockout begun on April
3 Indeed, the argument made by the General Counsel and
the Union appears inferentially to concede as much Here,
Respondent did not go through these motions, but the
events of April 2, as found above, were nevertheless such
as to make it crystal clear that Respondent was no longer
utilizing the lockout for the objective that had made it un-
lawful when it began To reach a different result in these
circumstances simply because the lockout was continued
without a break, would be only to exalt form over sub-
stance
The General Counsel and the Union also make the fur-
ther and somewhat related argument that Respondent
should in any event be required, as a matter of remedy, to
"The General Counsel's brief cites no cases at all The Union s brief
relies principally on Board cases involving strikes in violation of the notice
requirements of Sec 8(d) or picketing in violation of Sec 8(b)(7)(B) (See
e g, Retail Clerks International Association Local No 1179 (California Asso
ciation of Employees for and on behalf of J C Penney Company), 109 NLRB
754 (1954), Lawrence Typographical Union No 570 (Kansas Color Press), 158
NLRB 1332 (1966) ) Contrary to the assertion of the Union, the cited cases
are not analogous since they are concerned with situations as to which
clearly expressed statutory policies are applicable Moreover, it clearly ap-
pears that the strike or picketing conduct found unlawful in the cited cases
was unlawful under the applicable statutory provision not only at the incep-
tion of such activity, but throughout its course
make the affected employees whole for their loss of earn-
ings during the entire period the lockout continued in
force Although not too clearly articulated in their briefs,
their theory appears to be that Respondent, having unlaw-
fully laid off (locked out) employees on April 1, became
obligated to remedy that violation by terminating the lock-
out and reinstating the unlawfully laid off employees to
their jobs, and that since Respondent failed to do so April
28, when it terminated the lockout, it should now be as-
sessed with backpay liability up to the actual date of their
reinstatement The flaw in that argument is that it is based
on an assumption that work would have been available for
the employees between April 2 and 28 The fact is, howev-
er, that no work was available during that period because,
as found above, Respondent's operations were then legiti-
mately suspended In short, the employees loss of earnings
between April 2 and 28 was not linked to Respondent's
failure to remedy the unfair labor practices herein found
Accordingly, I conclude that Respondent's lockout of
the unit employees, although violative of Section 8(a)(1),
(3), and (5) at its inception, ceased to be so on April 2,
1975
CONCLUSIONS OF LAW
1 All employees in the categories listed in footnote 1,
above, other than excluded categories, who are employed
by Employers that are members of, and are represented for
purposes of bargaining with the Union by, the Association
constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9(b) of the Act
2 The Union at all times material to this proceeding has
been, and now is, the exclusive representative of all em-
ployees in the aforesaid unit for the purposes of collective
bargaining, within the meaning of Section 9(a) of the Act
3 By threatening to lock out the employees in the ap-
propriate unit if the Union did not agree to submit
Respondent's contract offer for ratification by employees
in the particular manner Respondent had specified, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act
4 By locking out the employees in the appropriate unit
on April 1, 1975, and continuing said lockout until April 2,
1975, because the Union failed and refused to submit
Respondent's final contract offer for ratification by the
unit employees in the manner that Respondent had speci-
fied, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the
Act
5 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
6 Respondent did not engage in unfair labor practices
within the meaning of the Act by continuing to lock out the
unit employees after April 2, 1975
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
be ordered to cease and desist from them, and from like
MOVERS AND WAREHOUSEMEN'S ASSN OF WASHINGTON, D C
and related unfair labor practices, and that it take the affir-
mative action provided for in the recommended Order be-
low, which I find necessary to effectuate the policies of the
Act
Having found that Respondent unlawfully locked out
the bargaining unit employees on April 1, 1975, and con-
tinued that lockout for an unlawful objective until April 2,
1975, it will be recommended that Respondent be ordered
to make such employees whole for any loss of pay they
may have suffered by reason of such unlawful conduct, by
payment to each of them of a sum of money equal to that
which he would have normally earned as wages on April 1
and 2, 1975, less his net earning on such dates, such sums
to be computed in the manner set forth in F W Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co, 138 NLRB 716 (1962)
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
ORDER i"7
Respondent, Movers and Warehousemen's Association
of Metropolitan Washington, D C, Inc and its Employer
Members of said Association, jointly and severally, name-
ly, Bekins Moving & Storage Co, Colonial Storage Co,
District Moving & Storage Inc , Fidelity Storage Co , Lions
Transfer Co, Merchants Storage Co of Va, Columbia
Van Lines Corp, Security Storage Co of Washington,
Smith's Moving & Storage Co, Inc, and United States
Moving & Storage Co , Inc, their respective officers,
agents, successors, and assigns, shall, jointly and severally
I Cease and desist from
(a) Threatening employees in the appropriate bargain-
ing unit with lockouts or layoffs, where an object thereof is
to force their bargaining representative to agree to methods
or procedures proposed by Respondent for the ratification
of contract offers
(b) Discouraging membership in Local Union No 639,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, by discriminato-
rily locking out or laying off any of its employees, or dis-
17 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
369
criminating in any other manner in regard to their hire and
tenure of employment, or any term or condition of employ-
ment
(c) Refusing to bargain collectively in good faith with
the aforementioned Union, as the exclusive bargaining rep-
resentative of all employees in the appropriate unit stated
in paragraph 1 of the Conclusions of Law, above, by en-
gaging in, or threatening to engage in, lockouts, layoffs, or
other retaliatory measures adversely affecting the earnings
of the bargaining unit employees, where an object thereof
is to force the Union to adopt methods or procedures pro-
posed by Respondent for the ratification of contract offers
(d) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Make whole all employees in the appropriate bar-
gaining unit stated in paragraph 1 of the Conclusions of
Law for any loss of pay they may have suffered on April 1
and 2, 1975, by reason of Respondent's unfair labor prac-
tice herein found, in the manner set forth in the section
above 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 backpay due under the terms of this
Order
(c) Post at each facility of the Employer Members of the
Association at which employees in the appropriate bar-
gaining unit are employed, or out of which they work, cop-
ies of the attached notice marked "Appendix " 18 Copies of
the notice, on forms provided by the Regional Director for
Region 5, after being signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
18 In the event that 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