Royal Packing Co.

National Labor Relations Board - Board Decisions

Aug 25, 1972

198 N.L.R.B. 1060 (N.L.R.B. 1972)

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Royal ;Packing Company ; Schneider Packing Company;
Union Packing Company ; Wuestling Packing Comp-
any; Tarpoff Packing Company ; Volz Packing
Company ;; and Local No. 545 , Amalgamated Meat
Cutters andlButcher^ Workmen of North America,
AFL-CIO. Cases 14-CA-5923, 14-CA-5924,
14-CA-5925, 14-CA-5926, 14-CA-5927, and
14-CA-5928
August 25, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On December 21, 1971, Trial Examiner Owsley
Vose issued the attached Decision in this proceeding.
Thereafter, the General Counsel, the Charging Party,
and the Respondents filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs 1 and has decided to affirm the Trial Examin-
er's rulings, findings,2 and conclusions, only to the
extent consistent herewith.
The complaint alleges that Respondents violated
Section 8(a)(1) and (3) as well as Section 8(d)(4) and
8(a)(5) by locking out employees in the course of
negotiations for a new collective-bargaining agree-
ment.
Respondents operate packing plants and are
engaged in the slaughtering, processing, sale, and
distribution of beef and beef products. For about 20
years, the production employees of these packing
houses have been represented by the Union. Respon-
dents were signatories to a collective-bargaining
agreement covering these employees which was
scheduled to expire on October 27, 1970. Shortly
before expiration of that contract, and during
negotiations for a successor agreement, Respondents
began laying off employees and, by October 27,
completely shut down operations. It is these layoffs
and the complete shutdown which gave rise to the
instant complaint.
' As the record and the briefs adequately present the positions of the
parties , Respondents ' request for oral argument is hereby denied
2 The Charging Party and Respondents have excepted to certain
credibility findings made by the Trial Examiner it is the Board's established
policy not to overrule a Trial Examiner's resolutions with respect to
The Trial Examiner found, and we agree for the
reasons stated by him, that Respondents did not
violate Section 8(a)(3) and (1) of the Act by the
lockout of unit employees as of October 27, 1970, the
expiration date of the contract.
However, the Trial Examiner further found that
'Respondents violated Section 8(d)(4) and 8(a)(5) by
furloughing employees prior to the contract's expira-
ition. Respondents except, contending that their
action in this regard was not a lockout within the
meaning of Section 8(d)(4), but merely an economic
layoff. We find merit in Respondents' position.
The violation found by the Trial Examiner is based
,on the termination of employees, which was stag-
igered among Respondents but first occurred in the
certain plants on October 16, 1970, just 11 days
before the contract was to expire.
As indicated above, Respondents had a legitimate
right to completely shut down their operations on
October 27. It is plain, however, that the timing and
circumstances under which that right could be
asserted were dictated by special business considera-
tions. The nature of Respondents' operation is such
that a complete shutdown can only be effectuated
over a period of time, and inventories cannot be
liquidated in a single day. The killing, processing,
and distribution activities must be staged out through
a process which takes several days between the
purchase of livestock for killing and delivery of beef
to customers. Thus, following slaughtering it takes a
day or two to process the meat for sale, and
more time is needed depending on the needs' of
customers to eliminate inventories. The elimination
of inventories is the key to a loss free shutdown and,
as this in turn depends on customer demands which
cannot be forecast, the exact amount of time needed
to eliminate inventories as of a specified date in the
future cannot be predicted with any degree of
certainty.
From the foregoing it is obvious that Respondents
could not continue to operate at normal levels to the
date of contract termination and then shut down
totally on that date, with storage lockers free of
inventories. Moreover, this fact assumes heightened
significance when considered with the Trial Examin-
er's finding that Respondents had good reason to
believe that the Union would strike upon contract
expiration. The fear of a strike, coupled with the time
required to liquidate inventories, precluded Respon-
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
198 NLRB No. 148
ROYAL PACKING COMPANY 1061
dents from deferring the shutdown to that date,
without risking serious financial loss. The extent of
this,risk is evidenced by the approximate aggregate
value of livestock and perishable beef on hand
shortly before expiration of the contract, which
totaled $1,290,000. It is apparent therefore that if
Respondents had deferred any shutdown operations
until October 27, and had the threatened strike
materialized before completion of phase out opera-
tions, Respondents would have sustained considera-
ble losses in inventories.
In these circumstances, we are persuaded that
Respondents' effort to cut back operations in
advance of the contract's scheduled expiration was
not unlawful. Furthermore, the earlier layoffs, which
the Trial Examiner found unlawful were attributable
to the reduction or elimination of work through this
phasing out process. Thus, it is apparent that layoffs
commenced after all the livestock on hand had been
slaughtered, thus eliminating the work of those
engaged in killing. After the slaughtered beef had
been processed and placed in coolers, there was no
work for the remainder of the unit employees.3
Accordingly, and as we are satisfied that Respon-
dents had a lawful right to completely shut down
their operations on October 27, 1970, and that the
assertion of this right required a cutback in opera-
tions prior to that date, we are satisfied that the
earlier layoffs did not constitute a lockout within the
meaning of Section 8 (d)(4). Rather they were
legitimate economic layoffs resulting from an una-
vailability of work. To view this case otherwise,
would require Respondents to either bear the risk of
inventory loss or retain employees on payroll status
even after the phase out of operations eliminated
work available to them. Neither Section 8(d)(4) nor
any other statutory prohibition requires an employer
to choose between such alternatives as the price for
asserting a lawful right to lock out employees during
contract negotiations.4 Accordingly, we find, contra-
ry to the Trial Examiner, that Respondents did not
violate 8(d)(4) and 8(a)(5) by laying off employees
prior to October 27, 1970,5 and as we agree with the
Trial Examiner in all other respects, we shall dismiss
the complaint in its entirety.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
3 It is noted that all unit work would have to be eliminated some time
before inventories could be completely depleted by the demands of
customers
4 Although the Trial Examiner finds that the overall shutdown was, in
part , for an object of pressuring the Union into contract concessions, we
specifically note that there is absolutely no evidence or basis for inferring
that the layoffs prior to October 27, were for any objective other than that
specified in the text of this Decision
5 American Ship Building Co v N LR B„ 380 U S . 300, 319 (concurring
opinion), American Brake Shoe Co v N LR B, 244 F 2d 489 (C.A 7), Betts
Cadillac Olds, Inc, 96 NLRB 268
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE , Trial Examiner : These cases 1 were heard
at St . Louis, Missouri , on August 16 and 17, 1971, pursuant
to charges filed on November 4, 1970, and a consolidated
complaint issued on June 18 , 1971, alleging that the
Respondents on various dates in October 1970 locked out
members of the Charging Party, Local No. 545, Amalga-
mated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, hereinafter called Local 545, in
violation of Section 8(a)(5), (3 ), and (1) and 8(d) of the Act.
Subsequently the parties filed helpful briefs which have
been carefully considered.2
Upon the entire record and my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
The six Respondents at the time of the events involved in
this case all operated packing plants in the St. Louis,
Missouri , area where they were engaged in the slaughter-
ing, processing , and distribution of beef and beef bypro-
ducts. Each of the Respondents received at their packing
plants more than $50,000 worth of beef cattle from out-of-
state sources and each shipped more than $50,000 worth of
processed beef and beef byproducts directly to out-of-state
destinations . Upon these facts , I find as the Respondents
admit , that they are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 545, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. The Lockout of the Packinghouse Employees in
Alleged Violation of Section 8(a)(5), (3), (1), and
8(d) of the Act
1. Background
All six Respondents have dealt with Local 545 as the
exclusive representative of their production employees for
many years . The relationships between Royal , Schneider,
and Volz and Local 545 goes back to the 1930's and the
i In the caption of these cases , Royal Packing Company was originally,
incorrectly named as Royal Sokolik Packing Company However, pursuant
to a motion to amend the complaint made by the General Counsel and
granted by the Trial Examiner, Royal Packing Company is here designated
by its correct corporate name
2 The Respondents Royal, Schneider , Union, Wuestling and Volz filed
along with their briefs a motion to correct record which is unopposed This
motion is hereby granted and it is incorporated at the back of the folder of
G C Exhs as T X Exh. I
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship between the remaining Respondents and
Local 545, while not so long lasting, dates back at least 20
years. In the early years of the relationship there was little
real bargaining over the terms of the contracts signed. As
Dave Sokolik, the president of Royal, credibly testified, at
that time it was customary for Local 545 first to negotiate
with the Pork Packers Association and then, after settling
with the Pork Packers, to come around and present to the
beef packing plants the Pork Packers contract and the beef
packing plants would sign the contract. On one occasion in
the 1940's when Royal failed immediately to sign the
contract presented to it, Local 545 called Royal's employ-
ees out on strike the next morning.
In 1964 and again in 1967 the contracts entered into
between all the Respondents except Tarpoff were entered
into on a multiemployer basis through an employer's
association known as the Association of St. Louis Meat
Packers, of which Royal, Schneider, Umon, Wuesthng,
Volz, and a few other packers were members. Tarpoff has
not been a member of any such association. However,
when presented with the printed booklet containing the
contract agreed to by the Association, Tarpoff's practice
has been to look it over and sign it.
Prior to the negotiations for the 1967 contract there had
been very little genuine bargaining between the Associa-
tion members and Local 545-in the sense of the parties
exchanging proposals and counterproposals, listening to
the arguments of the other party, and making reasonable
adjustments. In 1967 the Association brought in Burton
LaRue, a specialist in meat packing negotiations, to assist
the employer members of the Association bargaining
committee, David Sokolik and Harold Schneider, the
presidents of Royal and Schneider. The parties negotiated
without agreement until the expiration of the contract,
which was Friday, October 27, 1967. Through the Federal
Mediation and Conciliation Service the parties agreed to
hold a meeting on the Thursday following the expiration of
the contract and the Union orally agreed not to strike until
after that meeting. During that week of October 30, 1967,
the Respondents phased out their operations. Royal
stopped killing operations on Wednesday and on Friday all
employees were laid off. An agreement was reached
Saturday, November 4, 1967, and the employees were
called over the weekend to come back to work on Monday.
The new agreement ran until midnight, October 27, 1970.
It contained no-strike and no-lockout clauses and provided
for a grievance procedure culminating in binding arbitra-
tion.
Following the 1967 negotiations, two members of the
Association discontinued slaughtering operations and the
Association was dissolved. In December 1967, Teamsters
Local 700, representing Royal's drivers, called the drivers
out on strike and placed pickets in front of Royal's two
establishments (Royal has a processing plant in St. Louis,
Missouri, and a slaughterhouse in East St. Louis, Illinois).
Those members of Local 545 who had not yet reported for
work refused to enter the plants and those already inside
ceased working. The work stoppage lasted from 1 to 3
hours, until Royal adjusted matters to Local 700's
satisfaction.
About a year before the expiration of the 1967-70
agreement a new employer's association was formed which
included the present Respondents except Tarpoff. This
association was known as the St. Louis Beef Packers
Association. The Association authorized David Sokolik
and Harold Schneider to negotiate on their behalf, but
each member reserved the right to reject or accept the
contract.
2. The 1970 negotiations between Local 545 and
the Association
After reaching a settlement on April 6 with the so-called
Big Four Packers-Armour, Swift, Wilson and Cudahy
-Local 545 arranged for a meeting with the bargaining
committee of the new St. Louis Beef Packers Association,
hereinafter called the Association. The committee, consist-
ing of David Sokolik, Richard Sokolik, Harold Schneider
and Bert LaRue met with Edward Mecalo, the president of
Local 545, and Fred Waelter, its secretary-treasurer, at the
offices of Local 545 on April 29. Local 545 presented the
employers with a list of proposed changes in the existing
contract provisions with respect to wages, health, welfare,
and pension benefits, among other items, which if agreed
to, would very substantially increase the employers' cost of
doing business. The Union took the position that the Big
Four settlement set the pattern and insisted that any wage
settlement arrived at with the Association be made
retroactive to April 6, the date of the Big Four settlement.
As President Mecalo admitted, Local 545 adhered to this
latter position throughout the negotiations. LaRue, speak-
ing for the Association, disputed Local 545's interpretation
of the provisions in the 1967-70 agreement (art. XV) upon
which Local 545 predicated its claim for retroactive pay.
At the next meeting between the parties, which was held
on May 15, David Sokolik explained that he and Schneider
were representing the other members of the Association as
well as themselves. Local 545 presented the Association
representatives with a document stating the Umon's
demands in greater detail. David Sokolik explained the
problems the packers faced in trying to compete with the
.,new breed" packers from rural and out-of-state areas who
operate with labor rates from 25 cents to a dollar less than
do the Respondent's. Sokolik also stated that the employ-
ers did not want to be tied to the Krey Packing Company
contract pattern to which they had always been tied in the
past, or to any other package deal, and wanted the Union
to negotiate with them as "beef packers." Krey was a
considerably larger packer than any of the Respondents
and at the time of the 1970 negotiations was not engaged in
slaughtering any beef. It did process some beef, however.
After a discussion of Local 545's contract demands the
meeting concluded with the understanding that the
Association would submit to the Union its counterde-
mands for a contract.
Early in June the Association mailed to Local 545 a list
of proposed changes in the current agreement. No
proposals concerning wages and health, welfare, or pension
benefits were included.
The parties met again on June 18 and discussed the
Association's counterdemands. David Sokolik again point-
ed out the fact that even though there had been attempts
by the Meat Cutters International to bring the "new breed"
ROYAL PACKING COMPANY
packers's wages in line with the industry rates, after the last
negotiation between the Meat Cutters International and
the packers, the packers in the St. Joseph, Missouri, area
increased their advantage 28 cents per hour over what it
had been previously. Sokolik emphasized that the beef
business in the area was going down and that the Union
must give consideration to the disadvantage the St. Louis
packers were working under because of the lower union
wages paid by their competitors. Local 545 requested that
the Association make a specific money offer. The meeting
was recessed and the Association prepared its offer and
returned and presented it to the Union committee.
On July 9, 1970, the parties held a short meeting. A
general discussion about the problem of the St. Louis
packers again ensued. David Sokolik stated that he could
not see how the Association could meet the Union's
current demands. Neither party changed its position and
no further meetings were scheduled. It was left that either
party would contact the other if either had any changes to
propose in their offers or demands.
There was no further communication between either of
the parties until August 21 when Local 545 sent the five
Association members, and Tarpoff also, 60-day notices of
its desire to reopen the contract. The requisite notices to
the Federal and state mediation agencies were also sent by
the Union at this time. These notices recite that no
agreement has been reached between the parties.
The parties next met on October 7. Local 545 notified the
Association that it had reached a settlement with Krey
providing for a 32-cent wage increase for the first period of
the contract, 25 cents effective September 1, 1971, and 22
cents effective September 1, 1972, plus the full increases in
health, welfare, and pension benefits sought by the Union.
Local 545 requested the same settlement from the
Association. The Association said it could not agree to
such changes and countered with an offer of lesser
increases in wages than Local 545 was seeking and
proposing a delay in the effective dates of the health,
welfare, and pension benefits Local 545 was requesting.
This offer was not accepted by the Local 545 negotiators
who stated that they would take it back to their contract
committee without a recommendation. At this meeting on
October 7 the Association informed Local 545 that if they
were unable to reach agreement before the contract
expired the Association members would have to phase out
their killing operations and clean out their coolers.
President Mecalo replied that in the past Local 545 had
never let any meat spoil during the negotiations, and that
in the 1967 negotiations Local 545 had given the employers
a week's extension and had promised that there would be
no meat left in the coolers to Spoil .3
On Monday, October 12, Mecalo informed David
Sokolik that the Association's counterproposals of October
7 had been rejected and that Local 545 was insisting upon
the Krey settlement. Sokolik made no reply.
3 This is Mecalo's testimony David Sokolik testified that all that Mecalo
replied was, "I understand " Although LaRue, Richard Sokolik and
Schneider were present at the October 7 meeting and were called to the
stand after Mecalo testified as stated above, none of them denied Mecalo's
1063
3. The Memorandum of Agreement submitted to
Association members and to Tarpoff
on October 12
That same day, October 12, Clyde Barrett , recording
secretary and business representative of Local 545 and
Charles Coyne, another business representative of the
Union, went to various packing plants with which Local
545 had bargaining contracts and asked the employers to
sign the following document:
MEMORANDUM OF AGREEMENT
This Agreement was entered into by and between
the [name of Employer] of St. Louis, Missouri,
hereinafter designated as the Employer, and the
Butcher, Sausage Makers and Packing House Workers,
Local Union No. 545, hereinafter designated as the
Union.
1. The Employer agrees to pay any and all pay that
is negotiated with Royal-Sokolik and Company for the
ensuing contract starting October 27, 1970 through
October 27, 1973.
2. The Employer agrees to pay full Health and Welfare
payments that are agreed to by Royal-Sokolik and
Company.
3. The Employer agrees to pay full Pension Payments
that are agreed to by Royal-Sokolik and Company.
4. The Employer also agrees to any other terms,
provisions, and changes negotiated in the contract with
Royal-Sokolik and Company.
This agreement is subject to ratification by the
membership.
Accepted and signed for the Employer
[Employer]
Accepted and signed for the Union
AMALGAMATED MEAT CUTTERS & BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO
LOCAL NO. 545
There is a conflict in the testimony as to what took place
when Barrett and Coyne went to two of the packinghouses-
-Tarpoff and Wuestling. Alex Tarpoff testified that he
and his brother Jon were in the office when Barrett
brought the Memorandum in and asked them to sign it.
Vasil Tarpoff, the president of Tarpoff, was not present at
the time. Alex, after stating that they would like to look the
document over, inquired why the Union had brought this
document in at this stage of the negotiations, stating that
Tarpoff had never previously been involved until after
agreement had been reached with the Associatibn.4 The
Tarpoffs were told, according to Alex, that Local 545 was
"having difficulty reaching an agreement with the other
packers and a strike vote had been taken, and this would
guarantee us to continue to work if there were a strike."
Later Alex testified that it was on the occasion of a second
visit by Barrett to Tarpoff a day or two after the first visit
when Alex refused to sign the Memorandum that the
statement about the strike vote and possible strike was
testimony in question Under all the circumstances I credit Mecalo's
testimony
9 This is Alex's testimony Barrett was unable to recall this portion of the
conversation I credit Alex Tarpoff's testimony
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made by Barrett. Barrett testified that, when he brought
the Memorandum to the Tarpoffs, Alex and Jon said that
they did not see any problem with the Memorandum, but
wanted to show it to Vasil. Barrett further testified that he
did not visit the Tarpoffs twice but called Jon on the
telephone the next day, and was told that the Tarpoffs
would not sign the Memorandum. Barrett denied saying
that a strike vote had been taken. Coyne was not called as
a witness.5
Richard Wuestling, Jr., president of Wuestling, testified
that Barrett told him on October 12, 1970, that if he didn't
sign the Memorandum that when October 27 came, Local
545 was going to strike and put up a picket line. Walter
Wuestling, Jr., nephew of Richard Wuestling, Jr., testified
that he and his brother, Monroe, were present when
Barrett came to the plant on October 12, 1970, and that
after Richard Wuesthng refused to sign the Memorandum,
Barrett, looking up at the calendar, stated, "We are going
to strike you . . . . On the 27th." When Richard
commented, "Oh" Barrett added, according to Walter,
"there will be pickets out in front of your plant at the same
time we put them out in front of Royal." Monroe's
testimony is in accord.
Harold Schneider, president of Schneider, Hams Kram-
er, senior partner of the partnership at Union, and John
Volz, vice president of Volz, testified that Barrett visited
their plants on October 12, 1970, concerning signing the
Memorandum of Agreement. These witnesses testified (or
it was stipulated) that Barrett did not mention strikes or
pickets in the conversations that Barrett had with them.
The evidence indicates that at no time during any of the
negotiation sessions did Local 545 mention anything about
a strike or picketing.
In resolving the conflict between the testimony of the
Tarpoffs and the Wuestlings, on the one hand, and Barrett,
on the other, the fact that Local 545 sought the signatures
of the smaller area packers on such a "blank check"
agreements at this stage of the negotiations with the
Association is of considerable significance, in my opinion.
This was an unprecedented step for Local 545 to take. The
only advantage accruing to any employer signing the
Memorandum of Agreement which I can perceive is the
implied assurance that his operations could continue
without interruption due to a strike of Local 545 members.
The implication almost inevitably flowing from a refusal to
sign the Memorandum of Agreement is that such assur-
ance of unhampered continued operations would not be
available in such cases. In other words, the continued
operations of any employers refusing to sign the Memoran-
dum of Agreement would be vulnerable to strike action on
the part of Local 545. In my opinion, in the cases of
Tarpoff and Wuestling, Barrett and Coyne merely made
explicit the threat which was implicit in Local 545's action
in seeking signatures on the Memorandum of Agreement
at this time. While I recognize, as the General Counsel and
the Charging Party point out, that the testimony of
Richard Wuestling is not without confusion, I conclude,
after having observed the conflicting witnesses on the
stand and having taken into consideration the various
circumstances relied upon by the General Counsel and the
Charging Party, that the mutually corroborative testimony
of the Tarpoffs and the Wuestlings is entitled to credit in
preference to the uncorroborated version of Barrett.
About a half hour after Barrett and Coyne left the
Wuestling plant, Walter Wuestling called Richard Sokolik,
the personnel manager of Royal with whom he had been in
close contact in connection with the negotiations, and
informed him of the visit of Barrett and Coyne to the
Wuestling plant and their request that Richard Wuestling
sign the Memorandum of Agreement. After reading the
contents of the document to Richard Sokolik and inform-
ing him that Richard Wuestling had refused to sign, Walter
Wuestling further reported that the two Local 545 business
agents had stated that there would be a strike at the
Wuestling plant if Wuestling failed to sign the Memoran-
dum of Agreement and that the same thing would happen
to Royal if it did not sign the Agreement. Before the end of
the day Richard Sokolik spoke to all of the other members
of the Association and ascertained that they had each been
asked to sign the Memorandum of Agreement.
4. The shutdown of the Respondents' operations
As found above, the Association members had previous-
ly decided that rather than operate without a contract with
Local 545-with all the uncertainty as to labor costs which
would prevail in such a situation-they would phase out
their operations if agreement could not be reached with
Local 545 on the terms of a successor contract. They faced
a tremendous financial loss if confronted with a sudden
strike.
The value of Royal's live cattle and killed beef on hand
at any one time is approximately $500,000. Wuestling's
livestock and meat on hand normally is worth $120,000.
Schneider's livestock on hand is valued as high as $250,000
and its meat in coolers approaches $200,000 in value. The
approximate value of Union's livestock, processed meat,
and byproducts on hand in the middle of October was
$170,000. The value at this time of the perishable inventory
in the hands of the two smaller packers, Volz and Tarpoff,
was approximately $50,000. It takes a day or two after the
killing of the cattle to process the meat and byproducts for
sale, and more time is required to dispose of all the meat
products. This depends on the requirements of the
customers. While beef can be stored in the processor's
coolers for approximately 10 days, it starts to depreciate in
value after 3 or 4 days.
Having been informed on October 21 that their coun-
terdemands had been rejected by Local 545, having been
requested that day by Local 545 to sign the Memorandum
of Agreement, and having learned of the threat of a strike
to two of their number, the Association members started
preparing for a shutdown of their operations. Tarpoff,
although not a member of the Association, was bound by
an identical contract with Local 545, and it decided to
follow the same course of action.
Consequently, beginning on October 16, the Respon-
5 There is no evidence that a strike vote had been taken by Local 545 as 1971, after Tarpoff had partially resumed operations,
of October 12, 1970 It appears that the only strike vote taken by Local 545 6 Alex Tarpoff in his testimony states that signing the Memorandum
against any of the Respondent was a vote taken on Saturday, January 9, Agreement "was like signing a blank check "
ROYAL PACKING COMPANY 1065
dents started laying off employees, notwithstanding the
,provisions of Section 8(d) of the Act and the fact that their
contracts with Local 545, which contained no-strike and
no-lockout clauses, did not expire until midnight on
October 27. The actual sequence of the layoffs is as
follows:
No. of unit
employees
Date Employer laid off
Oct. 16, 1970 Union 17
Volz 7
Oct. 21, 1970 Wuestling 3
Oct. 23, 1970 Union 5
Wuestling 7
Schneider 38
Royal 98
Tarpoff 8
Oct. 28, 1970 Schneider 1
iIn addition to the unit employees a number of nonunit
employees, such as office clericals and drivers, were
subsequently laid off. Some unit employees who were
!related to the owners of the various businesses here
involved and who were members of Local 545 were not
laid off. However, after the layoffs these employees did not
perform unit work other than that which was necessary to
clean out the coolers. By the close of business on October
123 all of the Respondents had completely discontinued
(normal operations.
Contemporaneously with making the layoffs, the Associ-
'ation members and Tarpoff sent letters to Local 545
!notifying it that the layoffs were being made.
5. The meetings between the Association and
Local 545 after the shutdowns -
The first meeting between the parties after the shutdowns
commenced was on October 22. Mecalo stated that Local
545 would have to have the Krey settlement.? In addition
he asked for the elimination of the so-called emergency
clause which had been inserted in the 1967-70 agreement
at the request of the employers. The Association adhered
to its previous position. The Association informed Local
545 that because an impasse had apparently been reached
its members would have to continue phasing out their
operations unless a satisfactory agreement could be
reached. Mecalo replied, according to his testimony which
I credit, that Local 545 was not "going to close anybody
down," that the membership would vote on the Associa-
tions's offer on the following Saturday and that he would
call David Sokolik and advise him of the outcome.
On the morning of October 23, in a telegram to each of
the Respondents, Local 545 notified them that they were in
violation of article XIV, section II, of the agreement
requiring 30 days notice of departmental shutdowns and
requested an immediate meeting to discuss this grievance.
On Saturday, October 24, Mecalo called David Sokolik
and advised him that the membership had voted to reject
the Association's offer, but that the men desired to
continue working. When Sokolik inquired as to the basis
on which the men would continue working, Mecalo
indicated that he had to have the Krey settlement. Sokolik
informed Mecalo that this was not acceptable to the
Association. Sokolik acknowledged receipt of Local 545's
telegram at this time and asked Mecalo when he wanted to
meet. Subsequently a meeting was arranged for October
28.
David Sokolik and Harold Schneider met with President
Mecalo and Business Representative Barrett on that date.
The latter two stated that they were making the depart-
mental shutdown grievance part of the negotiations. The
former took the position that the contract clause in
question did not apply to complete shutdowns such as were,
involved in this case. As far as the record shows, this
grievance was not seriously pursued. I
I The parties met again on October 30. Local 545 advised'
the Association representatives that it was filing unfair
labor practice charges against the Respondents and stated
that it was making grievances concerning the discharges ofd
Itwo employees, one by Union Packing Company and one
:by Wuestling Packing Company, part of the negotiations.
The Association representatives took the position that
these were not proper matters for contract negotiations.
!Local 545 reiterated its position that the Krey settlement
was the only package which was acceptable to it.8 On
November 4 Local 545 filed with the Board's Regional'
Office charges alleging that the Respondents had violated;
Section 8(1), (3), and (5) of the Act by laying off and!
'locking out their employees without conforming to the,
notice provisions of Section (d)(4).
The parties next met on November 21 at which time'
Local 545 renewed its insistence upon the Krey settlement.,
The employers demurred. The parties agreed to meet again
,on December 14, but on December 8, this meeting was!
cancelled by mutual agreement when both sides indicated;
that there was no change in their positions. The next
meeting was held on December 20 in the offices of the
Federal Mediation and Conciliation Service. At this'
meeting the employers substantially increased their wage,
offer. After consulting with Local 545 representatives,
Federal Mediator O'Keefe advised the Association com-
mittee that the parties were too far apart, that Local 545
"would not negotiate any wages other than the pattern of
32-25 and 22." 9 The final meeting of the parties in January
1971 at which an agreement was reached is discussed,
below, after consideration is given to events at the Tarpoff'
Packing Company.
I This is the testimony of David Sokolik and Burton LaRue Mecalo Although Mecalo denied that Local 545 took this position at this meeting,
tentatively denied making this statement In view of the fact that Mecalo for reasons indicated above, I accept Sokolik 's testimony
was still seeking the Krey settlement months later , I find the testimony of 9 Local 545's original wage proposal at the start of the negotiations was
Sokolik and LaRue wholly credible for a 32-25-25 succession of wage increases
8 This finding is based on the credited testimony of David Sokolik
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Events at Tarpoff Packing Company
As found above, in previous years there had been no
separate negotiations between Tarpoff and Local 545
before agreement was reached between the Association
and Local 545. The practice had been for Local 545 to
submit to Tarpoff the agreement reached with members of
the Association and Tarpoff, after reading the agreement,
would sign it.
After the 1967-70 contract with the Association expired
on October 27 without agreement having been reached on
a successor contract, Local 545 adopted a different
approach with respect to Tarpoff. In November Local 545
mailed a set of proposals for a new contract to Tarpoff.
Thereafter, Local 545 representatives met with the Tarpoff
brothers on three occasions. On the first occasion Tarpoff
offered to agree to the provisions of the old agreement plus
the health and welfare package sought by Local 545. Later
Tarpoff offered to meet Local 545's increased health and
welfare demands plus a 10-cent hourly increase. Still later
Tarpoff raised its hourly increase offer to 15 cents. About
.two weeks after this third meeting Alex Tarpoff called
iMecalo and asked about the disposition of this offer.
Mecalo responded that the membership had turned the
offer down. Alex Tarpoff then told the union representa-
tive that Tarpoff Packing Company would have to
discontinue slaughtering beef if they had to pay an increase
of more than 15 cents per hour and would purchase and
sell dressed beef. Since a majority of the members of Local
,545 employed by Tarpoff worked on the killing floor such
a change would have serious adverse effects on Local 545's
membership at Tarpoff.
Finally, on Friday, January 8, 1971, Tarpoff commenced
purchasing carcass beef by the truckload and the Tarpoff
!brothers themselves handled the operation. Over the
weekend the membership of Local 545 took a strike vote
and on Monday, January 11, pickets appeared outside the
,Tarpoff plant. Mecalo explained at the hearing that the
pickers were posted because Tarpoff was operating without
a union contract.
7. Events involving Weyhaupt and Strect Packing
Companies
The Weyhaupt and Strect Companies were two packing-
houses which, like certain other nonmembers of the
Association, had not yet reached agreement on a successor
contract to the 1967-70 agreement and which had
continued in operation while the negotiations continued.10
Weyhaupt and Strect were custom packers and among
their products were hams which are in demand during the
holiday season. In negotiations with Local 545 in Decem-
ber Weyhaupt and Strect offered a proposal about which
they said, according to Mecalo, "this is it, take it or leave
it." Local 545 immediately called its members out on strike
at both the Weyhaupt and Strect plants. After two hours
the employers acceded to Local 545's demands and the
Local 545 members went back to work. No spoilage of
meat occurred.
10 Most of the nonmembers of the Association which continued in
,operation had signed the Memorandum of Agreement obligating themselves
8. The Association reaches agreement with Local
545 on January 18, 1971
The parties held a final negotiating meeting on January
18. Agreement was reached concerning the changes to be
made in the previous contract. The Association yielded to
Local 545's demand that the wage increases be made
retroactive to April 6, the date on which agreement was
reached with the Big Four packers. The total cost to the
employers of the package to which they agreed was the
same as the Krey package and varied from the cost of the
Big Four agreement only in that Local 545 took 3 cents off
the last year's wage increase in recognition of the fact that
the Local 545's pension plan was costing that much more
than the plan of the Big Four packers.
In the last week in January the Respondents commenced
recalling the laid off employees. None of the Association
members made any attempt to operate during the
shutdown.
9. The settlement with Tarpoff
Around January 19 Alex Tarpoff called Mecalo and told
shim that he had heard that Local 545 had reached'
agreement with the Association and that Tarpoff would
also like to get the matter settled. A meeting was set for
,January 23, 1971. The four union representatives, Mecalo,^
Barrett, Waelter, and Coyne, the three Tarpoff brothers,
their attorney, Lawrence Kaplan, and Federal Mediators
!Gumsrod attended. At that time Tarpoff informed Local
545 that it would no longer slaughter beef and requested,
language to the effect that by signing the contract they
would not be required to open their slaughtering operation.'
Local 545 representatives said that such language would,
not be approved by the membership and consequently;
Tarpoff accepted language to the effect that by signing the;
agreement it would not be required to reopen its entire!
plant. With this additional provision Tarpoff signed a new,
3-year agreement containing the same provisions to which
the Association members agreed. Tarpoff recalled the two,
,of its three drivers who were available, both of whom were
Local 545 members, on January 25.
B. The Respondents' Contentions; Conclusions
1. As to the 8(a)(5) and (1) and 8(d)(4) violations
a. The nature of the shutdowns
Contrary to the contention of the Respondents Royal,,
:Schneider, Union, Wuestling and Volz, I conclude that the'
shutdown of the -operations of these employers and
Tarpoff, as well, were lockouts and not layoffs due to
economic conditions. Work which the laid-off employees
could have performed was potentially available and would
have been available had not the Respondents decided to
,phase out their operations. The Respondents had a
threefold objective, in my opinion, in locking out their
employees. Their first objective was to curtail financial
losses resulting from their inability to dispose of the many
thousands of dollars worth of perishable meat and
to agree to the terms of the contract ultimately agreed to by Royal.
ROYAL PACKING COMPANY
byproducts in their plants in the event of a strike suddenly
called by Local 545. Although Local 545 had not
previously called strikes at contract renewal times and gave
oral assurances in the 1970 negotiations that it would not
allow any meat to spoil , the employers had reason to
question these assurances at this time . The posture of the
negotiations in 1970 was different . For the first time the
beef packers were seeking to stand on their own feet and
resist Local 545's demands . In the past the beef packers
had merely followed the pattern of the larger packers'
settlements. In the 1970 negotiations Local 545 for the first
time sought signatures on the "blank -check" Memoran-
dum of Agreements , an action which I have found
implicitly threatened a strike against the nonsigners. In
addition , Local 545 explicitly threatened strikes against
Wuestling and Tarpoff if they failed to sign.
The Respondents' second goal in locking out their
employees was to protect themselves against financial loss
resulting from operating with open-ended labor costs. The
Respondent had had the experience in the 1967 negotia-
tions of having to pay substantial sums in retroactive pay,
and in the contract finally negotiated with Local 545 in
January 1971 the Respondents had to pay retroactive pay
back to April 6, 1970.
The Respondents third objective in locking out their
employees, in my view, was to bring economic pressure
upon Local 545 to agree to more favorable terms in the
collective bargaining contract to succeed the 1967-70
agreement . There is no evidence that the Respondents in
pursuing this objective were motivated by animus against
Local 545 or hostility to the bargaining process. The five
Association members did not make any effort to operate,
until after agreement was reached, and Tarpoff, when it
resumed operations on a limited basis on January 8, 1971,
did not use any nonunion employees. The three Tarpoff
brothers did all the work and two of them were Local 545
members.
Much of the argument in this case revolves around
whether the lockouts were defensive or offensive in
character, and the assumption seems to be that, apart from
the requirements of Section 8(d)(4), defensive lockouts are
lawful , and that offensive lockouts, i.e., those intended to
arrive at a more advantageous bargaining contract, are
unlawful. I have found that the Respondents' lockout of
their employees had both defensive and offensive charac-
teristics , the first two objectives being defensive in nature,
and the third, offensive. However, as I read American Ship
Building Co. v. N L.R.B., 380 U.S. 300, offensive lockouts
of the type involved in this case, i.e., those made without
animus against Local 545 and without any intention to
"destroy or frustrate the process of collective bargaining"
and "intended to resist the demands made upon [the
employer ] in the negotiations and to secure modification
of these demands " (380 U.S. AT 309) are not inconsistent
with the free exercise by employees of the right to organize
and to bargain collectively , and hence are not unlawful.
Hence , much of the argument made in this case is beside
the point, for even if the General Counsel and Local 545
were to prevail in their arguments that the lockouts may
not properly be regarded as defensive lockouts, they
nevertheless were offensive lockouts of the type sanctioned
1067
in the American Ship Building case, and there was nothing
inherently unlawful about them, except as they failed to
meet the requirements of Section 8(d)(4) of the Act.
b. The illegality of the lockouts
Section 8(d) of the Act provides as follows:
(d) For the purposes of this section, to bargain
collectively is the performance of the mutual obligation
of the employer and the representative of the employ-
ees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and the
execution of a written contract incorporating any
agreement reached if requested by either party, but
such obligation does not compel either party to agree to
a proposal or require the making of a concession:
Provided, That where there is in effect a collective-
bargaining contract covering employees in an industry
affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall
terminate or modify such contract, unless the party
desiring such termination or modification-
(1) serves a written notice upon the other party
to the contract of the proposed termination or
modification sixty days prior to the expiration
date thereof, or in the event such contract
contains no expiration date , sixty days prior to
the time it is proposed to make such termination
or modification;
(2) offers to meet and confer with the other
party for the purpose of negotiating a new
contract or a contract containing the proposed
modifications;
(3) notifies the Federal Mediation and Concili-
ation Service within thirty days after such notice
of the existence of a dispute , and simultaneously
therewith notifies any State or Te-ritorial agency
established to mediate and conciliate disputes
within the State of Territory where the dispute
occurred, provided no agreement has been
reached by that time; and
(4) continues in full force and effect, without
resorting to strike or lockout, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract , whichever
occurs later.
Each of the Respondents, having locked out their
employees at least 4 days before the expiration of the
1967-70 agreement, has clearly violated Section 8(d)(4) of
the Act. The fact that the lockouts were partly defensive
measures taken to protect the employers from feared
economic losses due to a suddenly called strike does not
render the Respondents' conduct any less unlawful. The
courts have long recognized that "economic interests of the
employer are not valid reasons for violation of the Act."
N.L.R.B. v. Gluek Brewing Company, 144 F.2d 847, 853
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(C.A. 8) and cases therein cited; N.L.R.B. v. Pinkerton's
National Detective Agency, 202 F.2d 230, 232 (C.A. 9).
However, the fact that the lockouts were in part defensive
steps may properly be, and will be, taken into considera-
tion in fashioning the remedy in this case.
Local 545 contends that all of the Respondents also
violated Section 8(d)(1) and (3) of the Act by not serving
notice upon it and upon the Federal Mediation and
Conciliation Service and the appropriate state agency of
their intention to cease operations unless a successor
agreement was reached. The Board, with court approval
however, has held the notices served by the party first
seeking termination or a modification of a collective-
bargaining contract are sufficient and that no notices are
required of the other party who may subsequently decide
also to seek the termination or modification of a collective-
bargaining contract. In the original Fibreboard case
(Fibreboard Paper Products Corporation, 130 NLRB 1558),
in its decision dismissing the complaint on the merits, the
Board so held (130 at 1561, 1573).ii
The Board and court. decisions in Fort Smith Chair
Company, 143 NLRB 514, dismissal of the complaint
affirmed, 336 F.2d 738 '(C.A.D.C.), cert. denied 379 U.S.
838, also support this interpretation of Section 8(d) of the
Act. In this case the Board held that it was incumbent
upon the party first serving upon the other party the 60-day
notice of a desire to terminate or modify the collective-
bargaining contract to follow through and send the
required notices to Federal and state mediation agencies,
no matter what turn the negotiations took. In the Fort
Smith case after the union, on the eve of the expiration of
the contract, agreed to a one-year extension of the contract
with the modifications previously agreed to by the
employer, the employer then in effect reneged on the
modifications previously agreed to and pressed for further
changes. The employees then voted to and did go out on
strike without giving the 30 day's notice to Federal and
state mediation agencies required by Section 8(d)(4). No
8(d) notices whatever had been sent by the employer in this
case . The Board and the court held that the union had
violated Section 8(d)(3) of the Act, that the strike was
unlawful, and the employees could lawfully be discharged
for engaging in such a strike under the loss-of-status
provision of Section 8(d). The court in its opinion affirming
the Board stated as follows:
... And, in any event, the Board read Section
8(d), correctly we think, as expressly putting the
responsibility for giving the required notices, under
§8(d)(3) as well as under §8(d)(1), upon the party to the
contract who raises the possibility of industrial conflict
by moving to open up the existing contractual
11 In the Fibreboard case the union involved had sent the notices
required by Sec 8(d) of the Act A few days before the expiration of the 60
day's notice, the employer informed the union that it had decided to
contract out its maintenance operations and at the end of the 60-day period
terminated the employees engaged in maintenance operations The
employer had not sent any of the notices required by Sec 8(d) Although the
Board, upon reconsideration, subsequently reversed itself upon the merits,
finding that the employer had violated Sec 8(a)(5) of the Act, it did not find
any violation of the notice provisions of Sec 8(d) of the Act (138 NLRB
550) This subsequent decision upon reconsideration was approved by the
arrangements . Once the contract is thrown out on the
table for re-bargaining at the instance of one party,
counter-proposals are normally forthcoming ; and the
course of bargaining frequently tends to become a dim
and tangled thicket in which it is easier to sense the
lurking threat of industrial strife than to see from what
quarter it comes. Because this is the likely course of
events once an initiative is taken to change a contract,
and because Congress believed that it was imperative in
the public interest for disinterested and expert third
parties to have an opportunity to bring the parties
together , the burden of giving the notices was, not
unreasonably, placed on the party who voluntarily
elects to put these events in train . . . . [336 F.2d at
741.]
Under the interpretation given Section 8(d) in the decisions
discussed above the obligation to give the notices required
in Section 8(d)(1), (3), and (4) remains throughout on the
party who first moves to open up the existing contractual
arrangements , and does not shift to the other party to the
contract regardless of positions taken by him in the
negotiations.
Applying this construction of Section 8(d) of the Act to
this case it is clear , in view of the fact that it was Local 545
which first sought to open up the contract , that no duty
devolved upon Respondents to give the 60-day notice to
Local 545 of their intention to cease operations if no
agreement could be reached or to give the 30 -day notice to
the Federal or state mediation agencies, and no violation
of Section 8(d)(1), (3), and (4) of the Act is involved in the
Respondents ' omission to give such notices.12
2. As to the 8(a)(3) and (1) violations
The General Counsel and Local 545 both contend that
the Respondents' lockouts of their employees was so
inherently discouraging of membership in Local 545 that
the conclusion automatically follows that the lockouts were
violative of Section 8(a)(3) and (1) of the Act. I cannot
agree. As found above, the lockouts were in substantial
part motivated by the Respondents' desire to protect
themselves from the serious financial loss resulting from a
sudden strike and from operating without any precise
knowledge of what their labor costs would be determined
to be. Lockouts for such objectives by employers who have
been operating exclusively under union contracts for over
20 years, in my opinion, are not so inherently discouraging
of union membership as to warrant the conclusion that
Section 8(a)(3) has been violated without evidence of an
intent to discourage union membership. The fact that the
lockouts here were effected in the course of negotiations in
which the employers made known their desires to continue
operating under union contracts and in which the
Court of Appeals for the District of Columbia Circuit, 332 F 2d 411, and by
the Supreme Court, 379 U S 203
12 By a parity of reasoning no violation of Sec 8(d)(2) of the Act is
involved in the Respondent Tarpoff's failure to offer to meet with Local 545
before the expiration of the 1967-70 agreement for the purpose of
negotiating a new contract Local 545 itself did not comply with Sec 8(d)(2)
with respect to Tarpoff, but merely followed its old practice of dealing with
Tarpoff after negotiating with the other packers Accordingly, Local 545's
contention that Taropoff violated Sec 8(d)(2) of the Act is rejected
ROYAL PACKING COMPANY 1069
employers made offers of increased wages and additional,
health , welfare , and pension benefits is,convmcing ' evidencei
that the employers did not have , any intent : to discourage
,union membership.
Even though one of the objectives of the lockouts was toi
bring pressure upon Local 545 to modify its demands, this,
fact does not bring the lockouts here in the category of
cases involving conduct "so inherently prejudicial to union
interests and so significantly devoid of significant econom-
ic justification that no specific evidence of intent to
discourage union membership or other antiumon animus is'
required ." American Ship Building Co. v. N. LR.B., 380
U.S. 300 , 311. Rejecting precisely the contentions made by
,the General Counsel and Local 545 in this case, the
Supreme Court held in a case involving a lockout strictly
analogous to the lockouts involved in this case , that such a ,
lockout did "not carry with it any necessary implication
that the employer acted to discourage union membership
or otherwise discriminate against union members as such."
The Supreme Court's opinion in the American Ship,
Building case , in my opinion , is controlling here and
,requires rejection of the contentions of the General;
Counsel and Local 545 that the Respondents' lockout of
their employees violated Section 8(a)(3) and (1) of the Act
CONCLUSIONS OF LAW
1. The Respondents by locking out their employees
prior to the expiration of their collective-bargaining
agreement with Local 545 have engaged in unfair labor
practices within the meaning of Section 8(d)(4) and 8(a)(5)
and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The Respondents have not engaged in unfair labor
.practices within the meaning of Section 8(a)(3) of the Act.
THE REMEDY
Having found that the Respondents violated their
collective-bargaining obligations under Section 8(a)(5) and
8(d)(4) of the Act, my recommended Order will provide
that they cease and desist from such conduct and take:
certain affirmative action designed to effectuate the
policies of the Act.
In order to remedy the Respondents' violations of:
Section 8(a)(5) and 8(d)(4) of the Act, my recommended.
Order will provide that the Respondents, if they have not,
already done so, offer to all employees , unit employees and
nonunit employees alike, who may have been laid off as a
result of the Respondents ' lockout of the unit employees,
immediate and full reinstatement to their formerjobs or, ifi
these jobs no longer exist , to substantially equivalent fobs,'
without prejudice to their seniority and other rights and
privileges . This requirement , however , shall not be con-
strued as requiring the Respondent Tarpoff to resume its
slaughtering operations. My recommended Order will,
further direct that the Respondents make each of they
employees laid off whole for their losses, if any , resulting
from their layoffs by payment to each of them the sum of
money he would have earned from the date of his layoff to
midnight on October 27, 1970, the expiration date of their
current agreement with Local 545. Net interim earnings, if
any, shall be deducted from backpay . In the event that the
Respondents fail to offer reinstatement to any employee
entitled thereto under the terms of the Trial Examiner's
recommended Order , such employee shall be entitled to
further backpay commencing 5 days after the date of such
order and continuing until an offer of reinstatement is
made. Backpay shall be computed on a quarterly basis and
shall include interest at 6 percent per annum , as provided
in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
While the General Counsel and Local 545 contend that
the Respondents should be required to pay backpay for the
full period of the lockouts to all employees laid off as a
result of the lockouts, this contention is apparently
premised largely on the 8(a)(3) allegations of the complaint
which are being dismissed. It may well be that it is within
the Trial Examiner 's discretion to order backpay for the
full period of the lockouts as a remedy for the Respon-
dents' violations of Section 8(d)(4) and 8(a)(5). However, in
view of the substantial defensive justifications for the
lockouts and the fact that under the circumstances of this
case the employees could lawfully have been locked out
after October 27, 1970, in my opinion it would be
inequitable and contrary to the policies of the Act to order
backpay for the whole period of the lockouts. Compare
Fox Midwest Theatres, Inc., 158 NLRB 1096, 1099-1100.13
In view of the fact that the parties ultimately reached a
new 3-year collective-bargaining contract no affirmative
'bargaining order appears to be necessary , notwithstanding
my finding that the Respondents have violated Section
8(a)(5) of the Act.
[Recommended Order omitted from publication.]
13 Fibreboard Paper Products Corp v N L R B, 379 U S 203, relied upon
by the General Counsel as supporting his contention that backpay should
be awarded for the entire period of the lockouts is distinguishable upon the
facts , in my opinion In Fibreboard the employer terminated his entire
maintenance force without bargaining about the matter at all, although this
was a mandatory subject of collective bargaining, as the Supreme Court
held Here , the employers had been bargaining for months about the various
matters raised by Local 545 and desired to keep operating under terms
which they thought they could live with The Respondents' violation in this
case was not a substantive refusal to bargain but a "jumping of the gun," so
to speak by a week or so with respect to one of the four requirements of Sec
8(d) under a threat of strike action which caused the employers to fear very
serious financial losses The situation in Fibreboard, in my view , is not at all
comparable to the situation in this case