The Ruberoid Co.

National Labor Relations Board - Board Decisions

Oct 24, 1967

167 N.L.R.B. 987 (N.L.R.B. 1967)

THE RUBEROID COMPANY 987
The Ruberoid Company and Local 458 , United Ce-
ment , Lime and Gypsum Workers International
Union , AFL-CIO. Case 12-CA-3495
Respondent and the brief filed by the Respondent, the
Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
October 24, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 24, 1967, Trial Examiner Sidney J. Bar-
ban issued his Decision in the above-entitled
proceeding finding that the Respondent had not en-
gaged in any unfair labor practices and recommend-
ing that the complaint be dismissed, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief; and
the Respondent filed cross-exceptions and an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-
exceptions, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard before Trial Examiner Sidney J. Barban at Tampa,
Florida, on January 24 and 25, 1967, upon allegations in
the complaint issued on August 29, 1966, based on
charges filed on April 12, 1966,' that the Respondent had
violated Section 8(a)(1) and (3) of the Act by locking out
its employees at its Tampa, Florida, plant (herein called
the Tampa plant). Respondent's answer to the complaint
denies that it violated the Act.
Upon the entire record in this case and after due con-
sideration of oral argument of General Counsel and
I Unless otherwise specified dates herein refer to 1966
1. THE BUSINESS OF THE RESPONDENT
Respondent, in the course of the manufacture and sale
of roofing materials at its Tampa plant, during the year
previous to the issuance of the complaint, received at and
shipped from its Tampa plant goods and materials in in-
terstate commerce of a value in excess of $50,000.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, herein called the Union , is a labor
organization within the meaning of the Act . The parent
organization with which the Union is affiliated is some-
times herein referred to as the Gypsum Workers.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
It was stipulated that after a considerable period of bar-
gaining between the Union and the Respondent for a col-
lective-bargaining contract at the Tampa plant, a legal im-
passe in the negotiations occurred. General Counsel dis-
claims any contention of bad faith to this point in the bar-
gaining. Thereafter the Respondent locked out the Tampa
plant employees represented by the Union, assertedly in
aid of Respondent's bargaining position and in reasonable
anticipation of a future work stoppage by those em-
ployees.
Two basic issues are raised: First, whether the impasse
was broken before the lockout occurred. The General
Counsel asserts that it was, and insists that in the absence
of an impasse, Respondent's action in locking out its em-
ployees did not come within the doctrine of the Supreme
Court's decision in American Ship Building Co. v.
N.L.R.B., 380 U.S. 300 (herein referred to as American
Ship), and was violative of the Act. The Respondent de-
nies that the impasse was broken prior to the lockout, and
asserts that even if it were, under the American Ship
rationale, it was entitled to lock out its employees at the
Tampa plant under the circumstances of this case.
The second issue proffered by the parties, necessarily
following from the above, is whether, in the total circum-
stances of this case, the Respondent violated the Act by
locking out its Tampa plant employees. The General
Counsel, of course, asserts the affirmative; the Respond-
ent vigorously insists upon the negative.
B. The Facts
The General Counsel presented one witness, Richard
A. Northrip, who acted as chief negotiator for the Union
in bargaining conferences with the Respondent. Respond-
ent's sole witness was Jesse Hogg, one of its negotiators
at the bargaining sessions, as well as counsel to the
Respondent in the matters here involved. Some addi-
tional facts were stipulated.
The findings of fact herein are made upon considera-
tion of the entire record and observation of the witnesses.
167 NLRB No. 144
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Only that evidence which is consistent with the following
findings is credited.
Prior to the opening of the Tampa plant in June 1955,
the Respondent and other local unions affiliated with the
Gypsum Workers had long and apparently normally
peaceful collective-bargaining relationships at Respond-
ent's Savannah, Georgia, and Mobile, Alabama, plants.
Collective-bargaining agreements have been in effect at
the Savannah plant between 12 and 14 years without a
strike. During 1966, the current Savannah agreement had
a termination date in October. At Mobile the bargaining
relationship has existed for 20 to 25 years, with only one
2-week strike in 1957. The termination date of the Mobile
agreement here involved was July 15, 1966.
The Union was certified by the Board on November 1,
1965, after a secret-ballot election, as the representative
of Tampa plant production and maintenance employees.
Prior to the start of collective bargaining in January 1966,
the Union submitted a written contract proposal provid-
ing for benefits considerably in excess of those in both the
Mobile and Savannah agreements.
Although the parties agreed that they would bargain
first upon the noneconomic clauses of the agreement,
there appears to have been general discussion of the posi-
tion of both the Respondent and the Union on economic
matters from the beginning. The Union's negotiator, early
in the negotiations, indicated that economic terms
equivalent to those obtaining at Mobile or Savannah
would be acceptable, although the Union's official posi-
tion continued to be the higher terms of its proposal. It
was also indicated to the Respondent that, with respect to
the Union's pension proposal, so long as pensions were
part of the settlement of current negotiations, and were
not charged against a future bargaining settlement, the ac-
tual institution of the pension plan could be deferred to a
later date, since none of the employees would be im-
mediately affected.
Respondent's position from the outset was that wages
and benefits at the Tampa plant should be governed by
what the Respondent considered to be Tampa area prac-
tices, rather than by the higher terms of the Savannah and
Mobile contracts. Respondent's position was based upon
a survey of certain Tampa industries which it had taken.
The Union objected to this approach unless confined to
certain industries in the Tampa area which the Union
considered more comparable for bargaining purposes.
Without question, the effect of the Tampa negotiations
upon the Mobile and Savannah operations, and the rela-
tionship of anticipated negotiations at those plants, and
Mobile in particular, upon the Tampa operations was
much in the minds of both the Union and Respondent,
and found frequent expression at the bargaining table in
Tampa. Thus Northrip told Respondent that an inferior
'contract at Tampa would be of concern to the employees
at Savannah and Mobile; that employees at those places
would consider lower wages and benefits at Tampa an in-
direct attack on their own wages and benefits; that the
employees felt that the work being done at Tampa had
been removed from Savannah; and that there was con-
cern that Respondent would attempt to take advantage of
the Union's weaker position at Tampa to achieve a
smaller settlement at Tampa which Respondent would
seek to use as a pattern for the later negotiations at Mo-
bile and Savannah.
In connection with the Respondent's insistence on
lower wages and benefits tied in to asserted Tampa area
practices, Northrip testified:
... I told the company that ... if we could not
reach an agreement , that they would see that I could
be very patient. That I could sit there until July ...
that I realized the bargaining position at Tampa and
that the Company was not going to force us out on
strike here in Tampa because ... it will destroy the
bargaining unit . And that ... I would sit there and
negotiate with them ... until July.
Northrip conceded that the reference to July arose
from the Union's concern that the settlement at Tampa
might become a pattern for settlement at Mobile and
Savannah, and from the Union's conclusion that its bar-
gaining position would be improved in July when it could
expect assistance from Mobile, after the contract at that
plant expired on July 15, and when the Respondent, as
part of the construction industry, would be in its busy
season. During the negotiations there were a number of
references to "July" by Northrip and others on the union
negotiating team. Respondent stated its apprehension
that the Union intended to wait until July and strike
simultaneously at Mobile and Tampa. Northrip, on his
part, assured the Respondent that the Union did not want
a strike, but wanted an agreement at Tampa as soon as
possible and saw no reason for lengthy negotiations. As
late as March 17, when the parties reached an impasse
Northrip advised Respondent that the Union did not con-
template a strike and had not taken a strike vote.
After 14 negotiating sessions between January 12 and
March 17, the parties were in substantial agreement on
the nonmonetary terms of the Tampa contract, with no
concentrated effort to discuss economic items being made
prior to the March 17 meeting. Prior to that time, in ex-
position of the basic positions of the parties, Respondent
had argued that the wages and benefits already
established at the Tampa plant, based on asserted Tampa
area practices, were fair and reasonable. On March 14,
Respondent stated that, although it had no present wage
offer, if agreement could be reached on an expiration
date, it might offer a wage reopener during the term of the
contract. The following day, March 15, Respondent as-
serted that it was considering a wage proposal, but was
reluctant to put it on the table because it was certain of
union rejection. Northrip surmised that this proposal
would be in the neighborhood of 3 to 5 cents, with which
Hogg agreed.
The bargaining situation was discussed at a union meet-
ing of the Tampa employees the evening of Wednesday,
March 16. At the negotiation meeting the following day,
Respondent made an offer for a 3-year contract to expire
in 1969, with increases of 3 cents the first year, 5 cents
the second year, and 5 cents the third year. This was re-
jected by the Union, which advised Respondent that
Respondent's anticipated offer in this area had been
discussed at the union meeting and was considered un-
satisfactory. It was also stated that as a matter of policy,
the Gypsum Workers (which is signatory to the agree-
ments at Mobile, Savannah, and Tampa), as a matter of
policy was opposed to contracts of as much as 3 years.
During this meeting, the Union, "officially and for the
record" reduced their wage and benefit level to that of the
Mobile contract, suggesting that it would be willing to
discuss bringing Tampa up to that level, including any in-
terim increases received by Mobile, in a 2-year period.
The parties were also in dispute with respect to the ter-
mination date of the agreement, with Respondent insist-
ing on a date either in February or March of the year,
while the Union expressed preference for July 15 or
November 1 (which was the anniversary of the Union's
THE RUBEROID COMPANY 989
certification, and shortly after the termination date of the
,Savannah contract), although the Union asserted its
willingness to accept whatever date the contract was set-
tled.
There was testimony as to other discussions between
the Union and Respondent on March 17 which need not
be considered inasmuch as the General Counsel dis-
claims any contention Respondent was engaged in bad-
faith bargaining to this point. Both the Union and the
Respondent refused to make further concessions during
this bargaining session, and it closed with the Union sug-
gesting an indefinite adjournment of bargaining, not to
resume until one side notified the other that it had an offer
to make. The Union stated that the parties were at an im-
passe. Respondent assented to the Union's suggestion.
The General Counsel and the Union stipulated with
Respondent at the hearing that "The parties arrived at a
legal bargaining impasse on economic issues on March
17."
During the weekend prior to April 7, 1966, Respond-
ent decided to lock out its Tampa employees, assertedly
in an effort to resolve the stalemate in bargaining which
apparently existed and to achieve a contract satisfactory
to the Respondent. According to the testimony of Hogg,
who participated in the decision, in order to ameliorate
the impact of the decision on the Union, prevent disorder
in the plant, and provide for an orderly shutdown, it was
decided to advise the Union of the decision in a face-to-
face meeting, rather than bypassing the Union and in-
forming the employees directly. In notifying the Union
officials of the meeting to be held on April 7, Respondent
refused to divulge the matters to-be discussed. Although
unaware of the precise nature of the meeting, it is clear,
however, that the union representatives realized that this
was to be no normal bargaining session.
The meeting on April 7 was held in the afternoon, in
Attorney Hogg's office, where most of the bargaining ses-
sions had been held. At that time only about 15 main-
tenance, shipping, and receiving employees were at work,
out of approximately 45 employees in the unit
represented by the Union. The remaining employees,
production workers, were on layoff due to a lack of
material having nothing to do with the dispute between
the parties. The production employees were then
scheduled to return to work on Monday, April 11.
At the opening of the April 7 meeting, Respondent
referred to the impasse in the negotiations and stated that
it was searching for a method to achieve a satisfactory
agreement. It was asserted that Respondent was ap-
prehensive that the Union's bargaining techniques would
lead to a multiplant strike after the Mobile contract ex-
pired and could not sit idly by "until the ax fell in July,"
because of the adverse effect on its customers in having
both plants shut down at the same time. Respondent
stated that for these reasons it was locking out the Tampa
plant employees. In response to a question by Northrip;
Respondent stated that the lockout was effective im-
mediately.
The Respondent then reminded the Union that
Respondent's last offer for a contract was still on the ta-
ble. The Union was advised that if that proposal were ac-
cepted, or if the Union would agree that there would be
no multiplant work stoppage, the lockout might become
unnecessary. When it was objected that the union'
negotiators could not bind the employees at Mobile,
Respondent asserted that it desired only the Union's
commitment for the Tampa employees. In response to a
query as to the situation if the Tampa employees struck
first and the Mobile unit went on strike thereafter,
Respondent stated that, in such case, it would expect the
Tampa employees to return to work.
Northrip advised the Respondent that with respect to
the contract proposal that was being offered, he was op-
posed to it for the reasons he had previously given; as to
the alternative proposal, the Respondent was asking the
Union to bargain for something they had no authority to
bargain for. However, Northrip stated that in view of
Respondent's threat to lock out the employees, he would
call a membership meeting as soon as possible and put the
matter before them, but, in view of the fact that the
production employees were not working, this would be
difficult. Northrip further said that if the union member-
ship accepted the Respondent's proposal, he would sign
1t.2
During this discussion, the Respondent assured the
Union that the Tampa employees' jobs would be avail-
able as soon as the work suspension was over. Also during
the meeting, Northrip testified that he made two contract
proposals to the Respondent which had not previously
been offered. Northrip asserts first, that he suggested to
Respondent that the Union was willing to listen to any
proposal Respondent wished to make that would bring
Tampa up to the level of Mobile, without limitation of
time; secondly, that the Union would drop its pension de-
mand, if Respondent would give the Union an assurance
that the pension plan would be put into effect before the
first employees were eligible to retire, a minimum of 10
years in the future. This testimony is disputed by Respond-
ent's witness Hogg. For reasons discussed hereinafter,
the Trial Examiner finds it unnecessary to resolve this
dispute.3 Also during the discussion, Northrip offered to
give Respondent notice in advance of any strike at Tam-
pa Northrip testified that he told Respondent that "if
they needed one shift, two shifts, three shifts, four shifts,
whatever they required, we would give it to them before
any strike action was taken." When Respondent asked if
the Union wanted to notify the employees of the suspen-
sion of operations, Northrip refused, and Respondent
stated that it would notify the employees of its action.
The meeting closed at or about 3 p.m.
Thereafter, Respondent's negotiators returned to the
plant. About 5:55 p.m. the following telegram was sent
out to the employees in the unit represented by the
Union:
The Ruberoid Company has suspended Tampa
operations in aid of its bargaining position with Gyp-
2 Respondent argues that Northnp 's testimony evidences his intent to
submit only Respondent 's contract offer to the union membership , not its
request for commitment against a multiplant strike . Some of Northnp's
testimony , particularly that summarized in the text above , might be sub-
ject to such an inference , although not necessarily so On the basis of all
the evidence, including that of Attorney Hogg, it is found that Northrip
said that he would place all of the Respondent 's statements before the
union membership and did not specify the contract or the strike proposal
-, Both witnesses were quite obviously , to the best of their recollection
and ability, attempting to give truthful testimony There is reason to be-
lieve that the dispute arises from either a sincere , but mistaken , recollec-
tion of the date of the actual occurrence of the events , or from differing in-
terpretations of what actually occurred Lacking any conviction as to what
actual statements were made , if it were necessary to resolve the dispute,
the Trial Examiner would have to hold that the General Counsel, who has
the burden of convincing the trier of the facts by a preponderence of the
evidence , on this point has not sustained his burden of proof.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sum Workers Union . You will be notified when
operations are resumed . This action necessitated by
Union 's bargaining tactics. We hope that operations
will soon be resumed.
The shipping, receiving , and maintenance employees
at work on April 7 were permitted to finish out their shift
that day. Some shipping and receiving employees worked
overtime, however, because of a truck that came in late
Although these employees had been scheduled to work
the next day , they did not do so.
The following additional facts were largely stipulated
by the parties: After April 7, the parties met 16 times
between May 23 and August 5, during which period
agreement was reached on a contract containing wages
and benefits lower than those at Mobile, but higher than
Respondent ' s March 17 offer. The Tampa contract,
which was signed on August 23, 1966, after the Mobile
agreement had been settled , has a termination date of
March 15, 1968. There was no strike at the Mobile
operation . The Tampa plant did not operate during the
period of the lockout . Shortly after the Tampa contract
was ratified , the Respondent called back maintenance
employees to prepare the plant for operation . The remain-
ing employees were called back to work gradually as the
plant got into operation
It was further stipulated that during the period of the
lockout the Respondent "found it necessary and did serve
many customers from the Mobile and Savannah plants
who would normally be served from the Tampa plant.
Respondent did not bargain with the Union on this
matter , and the Union being aware of this at no time
requested such bargaining ." It was further agreed that the
Trial Examiner could consider as a fact that the Respond-
ent "lost Tampa orders during and on account of the
lockout."
C. Conclusions
1. The shift in the applicable rule of law
Prior to the Supreme Court' s decision in American
Ship , supra, it was the settled rule of the Board that in
normal circumstances "an employer may not during bar-
gaining negotiations either threaten to lock out or lock out
his employees in aid of his bargaining position " See
Quaker State Oil Refining Corporation , 121 NLRB 334,
337, enfd 270 F.2d 40 (C.A. 3). However, the Board
recognized that there were special circumstances where
the employer 's right to protect his business against loss so
overweighed the employees ' right to engage in collective
bargaining uncoerced by their employer that a lockout
might be justified . Thus, the Board held in Quaker State
(121 NLRB at 337), that " lockouts are permissible to
safeguard against unusual operational problems or
hazards or economic loss where there is reasonable
ground for believing that a strike was threatened or im-
minent ." The only other exceptions to the general rule
which prohibited lockouts involved multiemployer bar-
gaining situations not present here See N.L.R.B. v.
Truck Drivers Local Union 449 (Buffalo Linen Supply
Co ), 353 U.S. 87; N L.R.B. v. Brown Food Store, 380
U.S. 278.
Basically, the exceptions to the normal rule, prior to
American Ship, concerned situations involving "defen-
sive" lockouts , in which the employer, proceeding upon
a rational nondiscriminatory basis, acted to protect his
property or an important legal right against a real and im-
minent threat of harm . However, there was no recognized
legal right of the employer to take "offensive" action, that
is, to take the initiative and lock out its employees, not
because it was threatened with imminent harm, but as a
pressure device to force a settlement in bargaining under
conditions and upon terms favorable to the employer. In
American Ship, the Supreme Court held, at least in the
situation there presented, that such an "offensive"
lockout was not a violation of the Act.
The factual situation inAmerican Ship involved an em-
ployer operating four shipyards in the Great Lakes area
with a highly seasonal business concentrated largely in
the winter months. Each of the five collective-bargaining
agreements between the employer and the unions jointly
representing employees at these four yards had been
preceded by a strike.
After extended negotiations the employer and the
unions reached an impasse on economic terms for a new
agreement and separated without provision for another
meeting. Throughout the negotiations the employer ex-
pressed its apprehensions that the unions would either
call a strike as soon as a ship entered its repair yard "or
delay negotiations until the winter to increase strike
leverage." (380 U.S. at 303-304) Notwithstanding the
union negotiator's insistence that it was his intention to
reach an agreement without calling a strike, the Court
found that, "Because of the danger of an unauthorized
strike and the consistent and deliberate use of strikes in
prior negotiations, the employer remained apprehensive
of the possibility of a work stoppage." (380 U.S. at 304)
The employer further rejected union proposals to extend
the contract for 6 months or indefinitely because these
proposals would permit work stoppages during the peak
season.
Within 3 days after the breakdown in bargaining, the
employer gave certain of its employees a notice stating:
"Because of the labor dispute which has been unresolved
since August 1, 1961, you are laid off until further
notice." The employer's Chicago yard was shut down
completely All but two employees at the Toledo yard
were laid off. It appears that the employees at the other
yards were laid off as the work diminished (See 142
NLRB at 1363, fn 3.) Shortly after the initial shutdown,
negotiations resumed and approximately 2 months later
a new contract was signed and the employees were re-
called to work.
Considering only whether, in the circumstances
presented, the employer's lockout of the employees at the
Chicago yard was a violation of Sections 8(a)(1) and (3)
of the Act, the Supreme Court in American Ship
concluded that "an employer violates neither § 8(a)(1) nor
§ 8(a)(3) when, after a bargaining impasse has been
reached, he temporarily shuts down his plant and lays off
his employees for the sole purpose of bringing economic
pressure to bear in support of his legitimate bargaining
position." (380 U S. at 318) Indeed, in coming to this
'conclusion, the Court stated, in another place, "This is
the only issue before us, and all that we decide," specifi-
cally disclaiming any "view whatever as to the con-
sequences which would follow had the employer replaced
his employees with permanent replacements or even tem-
porary help...." (380 U.S. at 308)
In particular, the Court noted, in American Ship, that
in the absence of any indication that the unions' capacity
for effective and responsible representation, vigorously
exercised on behalf of the employees involved for a
number of years, would be "necessarily destroyed" or
"impaired" by the lockout (380 U.S. at 309), some show-
ing of intent on the employer's part to destroy or frustrate
THE RUBEROID COMPANY 991
collective bargaining , or to discourage membership in the
unions , as distinguished from the sole purpose of affecting
the contract settlement by economic pressure, was
required. The Court thus held that "the lockout" was not
"one of those acts which is demonstrably so destructive
of collective bargaining" that it is, without proof of mo-
tive, violative of the Act. (380 U.S. at 309)
2. The issue as to bargaining impasse
The General Counsel argues that the American Ship
decision should be construed narrowly, that it is limited
to situations in which there is a bargaining impasse,4 and,
asserting that there was no impasse in this matter at the
time of the lockout, insists that the American Ship
decision does not support Respondent's lockout in this
matter.
In aid of this argument, General Counsel asserts that,
notwithstanding Respondent's statement that the lockout
was effective "immediately," some employees continued
working until the end of work on April 7, and the lockout
was therefore not effective until the following morning.
By that time, General Counsel urges , the impasse previ-
ously existing had been broken. It is his position that th'tis
was accomplished by Respondent's statement to the
Union on April 7 that the lockout would be unnecessary
if the Union would accept the Respondent's current con-
tract proposal or give a commitment against a multiplant
strike, which matters the Union stated that it would
present to its members. It is also argued, though not so
vigorously, that the Union's asserted change in position
on its pension plan proposal and on extension of time for
bringing Tampa conditions up to Mobile, as well as its
more explicit offer of strike notice, served to break the
impasse and impose a duty upt, i the Respondent to
forego the announced lockout and continue bargaining.
However, the Trial Examiner believes that it is quite
clear that the impasse in this case was not broken prior to
the effectuation of the lockout. It must be remembered
that the majority of the employees-were not working on
April 7. In such circumstances an announcement of the
lockout to the representatives of the employees would be
sufficient notice to the employees. As a practical matter,
the lockout was then effective. The mere fact that some
employees where permitted to finish out the day's work
is not dispositive of the issue, as shown by reference to
the factual situation in American Ship where the lockout
was also only partial at the outset. s
Moreover, even if the lockout were effectuated only on
the morning of April 8, as the General Counsel contends,
it seems plain that none of the matters discussed at the
April 7 meeting would serve to break the impasse which
existed prior to the inception of that meeting. As of that
time, Respondent and the Union were at impasse over the
economic terms that were to be included in the agree-
ment, and more particularly whether Tampa conditions
of employment were to be determined by Tampa area
practices or by practices at Respondent's Mobile plant.
After 14 bargaining sessions, the parties had not changed
position on this crucial point.
Respondent's suggestion of a no multiplant work stop-
page, which might, if accepted by the Union, have les-
sened or obviated the impact of the lockout, was not a
contract proposal, nor did it have relevance to the points
at issue in the negotiations. While it might have provided
a different climate for further bargaining, if the Union had
shown some inclination to bargain in such a climate, the
essential point is that the Union showed no such inclina-
tion . In essence, General Counsel suggests that Respond-
ent, whose operations were already shut down, incurred
an obligation to reopen its plant, which it might later close
down again if the Union rejected a commitment not to en-
gage in a multiplant strike. This, however, puts the cart
before the horse. The option was rather that Respondent
might reopen upon acceptance of its proposal, not that
Respondent might close again, after reopening, at such
time as the Union chose to reject the suggestion.6
Further, if we were to hold that the Respondent acted to
its detriment in advancing suggestions to ameliorate the
impact of economic pressures it might otherwise be enti-
tled to enforce in these circumstances, we may
discourage the advancement of such options by parties to
negotiations like these, and thereby decrease, rather than
increase, the opportunities for avoidance of aggravated
industrial disputes.
Nor is the argument that the preexisting impasse was
broken by events at the April 7 meeting much advanced
by the assertion that the Respondent reiterated its previ-
ous contract proposal, previously rejected out-of-hand by
the Union, or by the alleged proposals of the Union to
listen to any move the Respondent might want to make,
without limitation as to time, or to postpone the effectua-
tion of its pension proposal, or to give strike notice of one
or more working shifts. Since the impasse between the
parties centered on Respondent's consistent refusal to
align Tampa plant with any area other than Tampa, a
proposal to bring Tampa up to Mobile in a longer rather
than a shorter time, even if considered seriously, in the
form suggested and in the circumstances in which it was
made, offered no current prospects for solution of the
issue at impasse. It must also be remembered that the
Union's suggestion was not a firm proposal to achieve
their purpose in a definite time by definite means, but
rather a vague offer to listen to anything the other side
had to say without any indication of acceptance. When
matched against the acknowledged policy of the Gypsum
Workers not to accept bargaining agreements of as much
as 3 years, which policy, indeed, prevailed in the final set-
tlement, one would be fully justified in considering that
this suggestion promised more to the ear than to the ulti-
S He stated : "the Board law has . . always been that this type of lock-
out is unlawful . [The Supreme Court did not] strike down the present
Board law . The only thing the Court did was expand it to say after bar-
gaining impasse when there is no other evidence of unfair labor practice,
the Employer is privileged.... If there is no impasse , then the lock-out is
not lawful."
S Hogg testified that General Counsel originally indicated to him an
opinion that the lockout had been effective immediately . Hogg asserted
that he did not at first recall announcing the lockout effective immediately,
and, in fact , alleged in the answer to the complaint that the lockout was not
effective until Monday, April 11. Both Northrip and Hogg agreed at the
hearing that the latter at the outset of the Aped 7 meeting stated the
lockout to be effective immediately.
6 General Counsel 's argument that Respondent showed bad faith in not
reopening the plant to give the Union time to hold a meeting of the em-
ployees is not persuasive . Although the Union complained of the difficulty
in getting a meeting with the plant not operating , no request was made of
Respondent for additional time . In addition , one-third of the employees
were at work on April 7, but the Union made no effort to contact them.
There were only 30 other employees to be contacted . In a matter of such
serious import it is difficult to believe that the Union could not have ar-
ranged a meeting by the following Sunday evening , if it had been so
minded.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mate solution of the impasse. Little additional need be
said of the other points raised. The alleged shift in empha-
sis with respect to the pension plan does not appear to be
of significance and was clearly foreshadowed by earlier
concessions. The strike notice suggestion was at best a
palliative which did not go to the heart of the problem -
Respondent's apprehension of a multiplant strike - and,
indeed, serves to point up the Union's reluctance to calm
Respondent's real apprehensions.
Even were we to consider that these suggestions some-
how brought the parties closer to agreement, which the
Trial Examiner does not believe was the case, the result
would be no different. As the Board recently stated in
Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB
475, "an impasse is no less an impasse because the
parties were closer to agreement than previously, and a
deadlock is still a deadlock whether produced by one or
a number of significant and unresolved differences in
positions." (p. 8 of slip opinion)
In the Taft case, the Board set forth the criteria in-
volved where the existence of impasse is at issue as fol-
lows (p. 8 of slip opinion):
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of negotia-
tions, are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
Considering these factors, and in particular the basis
for the admitted preexisting impasse in this matter, for the
reasons previously stated, the Trial Examiner finds that
the impasse was not broken by the events of April 7 and
existed at the time the lockout was effected. For this
reason there is no need, and the Trial Examiner will resist
the temptation to explore the perplexing problem of the
preimpasse lockout7 so thoroughly briefed by Respond-
ent and argued by General Counsel.
3. Respondent's conduct as destructive of the Union's
representative capacity
At the outset of the hearing the General Counsel an-
nounced his intention of producing evidence to the effect
that the Respondent, by its conduct, "intended to un-
dercut and destroy the Union." The Trial Examiner, over
the objection of Respondent, ruled that such evidence
might be adduced within the allegations of the complaint.
In its brief, Respondent reasserts its position that, in the
absence of specific allegations in the complaint of bad
faith or unlawful purpose, and particularly in light of the
General Counsel's failure to amend the complaint at the
hearing, Respondent "was not properly put on notice of
any intent to contend or litigate bad faith or unlawful pur-
pose, and formally requests that the Trial Examiner make
no findings against it on this issue."
However, while the Trial Examiner believes that it
would have been better practice to formally and specifi-
cally allege the matters asserted, it certainly cannot be
held that Respondent was not on notice of the issue, or
that the issue was not relevant under American Ship. Nor
does it appear that Respondent was in any way preju-
diced. As Respondent states in its brief, "The essential
facts in this matter are either agreed upon or undisputed,
. there is some argument as to the conclusions to be
drawn from the facts." For these reasons the Trial Ex-
aminer adheres to the ruling made at the hearing and
holds that the issue stated by the General Counsel must
be considered.
The General Counsel asserts that Respondent' s intent
to undercut the Union as the representative of the em-
ployees is demonstrated first, by its conduct on April 7.
It is contended that Respondent, by offering the Union a
proposal to avoid the lockout, which the Union could not
accept without authorization from its membership, while
denying the Union the opportunity to secure such
authorization, unfairly shifted the burden of responsibility
for the lockout upon the Union; and that then Respond-
ent drove home its purpose by advising the employees
in its telegram that the lockout was "necessitated by the
Union's bargaining tactics."
It has previously been found (see fn. 6, supra), contrary
to the contention of General Counsel, that Respondent's
request for a commitment against a multiplant strike was
made in good faith. Nor is there any reason to believe that
the telegram of notification to the employees was in bad
faith. Nothing was contained therein that had not been
stated to the Union previously, and, indeed, the Union
was given the option of first notifying the employees of
Respondent's action, but rejected it. Whatever might
have been the case beforeAmerican Ship, since that deci-
sion, it is clear that in circumstances such as those
present here, Respondent's notice to the employees was
not improper. s
The second branch of this issue, relating to the legal ef-
fect of Respondent's alleged diversion of Tampa produc-
tion to Mobile and Savannah, however, presents a much
more difficult problem. In effect, the General Counsel ar-
gues that even if Respondent had a legal right to shut
down, it had no option to shut down only partially, citing
Textile Wkrs. Union v. Darlington Mfg. Co., 380 U.S.
263. He further contends that by transferring Tampa
work to Mobile and Savannah, without notice to the
Union, which the General Counsel analogizes to locking
the Tampa employees out and continuing operations with
new replacements, Respondent showed its inherent bad
faith and intent to undermine and destroy the Union.
Finally it is urged that this was compounded by the fact
that the Union had only recently been certified at Tampa
and this was a "maiden voyage"; that where the union
membership is well seasoned to representation over the
years, the pressure of a lockout might induce the member-
ship to make their representative reduce contract de-
mands, but not desert the union; but, in the case of this
Union, which was newly certified, "What other reasona-
ble conclusion can we reach than that the purpose of what
they did was to get that Union out of there. If it took
necessarily closing the plant down and shipping the work
to Mobile, they were going to do it ... they attempted to
try to appear that like they were coming within
[American] Shipbuilding ... [but] their intention shows
clearly through."
Although Respondent has not specifically addressed it-
' See Oberer, Lockouts and the Law The Impact of American Ship
Building and Brown Food, 51 Cornell L Q 193; Feldesman and Koretz,
Lockouts, 46 B.U L. Rev 329; Schatzki, The Employer's Unilateral
Act-A Per Se Violation Sometimes, 44 Texas L. Rev. 470; note, The
Unanswered Questions of American Ship, 64 Mich L. Rev. 910, note,
The Offensive Bargaining Lockout, 52 Va L Rev. 464.
8 Compare the notice to the employees in American Ship (380 U S. at
304)
Because of the labor dispute which has been unresolved since August
1, 1961, you are laid off until further notice.
THE RUBEROID COMPANY 993
self to the question of the consequences of its action in
supplying Tampa customers from Mobile and Savannah,
Respondent does deal, in another context , with the
"maiden voyage" contention , pointing out that Respond-
ent has had long-continuing relationships with the Gyp-
sum Workers , that there is evidence of tieups between the
locals at Respondent 's various plants , coordination in
bargaining , and approval of the several contracts by the
Gypsum Workers.
On the main issue of alleged diversion of production to
other plants , it would appear , under American Ship, the
question to be resolved is whether , in the absence of any
other evidence of illegal motivation , the "actions taken
. serve legitimate business interests in some significant
fashion , even though the act committed may tend to
discourage union membership ." (380 U . S. at 311)
While the Supreme Court has made clear in American
Ship, at pp . 317-318 , quoting fromN . L.R.B. v . Insurance
Agents ' International Union , 361 U.S. 447, that the
Board is not warranted in becoming involved in "the sub-
stantive aspect of the bargaining process " by "function-
ing as an arbiter of the sort of economic weapons the
parties may use in seeking acceptance of their bargaining
demands ," it is also clear that not all economic weapons
seriously affecting employee rights may be employed
with impunity merely because employed in aid of the em-
ployer ' s bargaining position . See N . L.R.B. v . Erie Re-
sistor Corp ., 373 U.S. 221.11
It may well be argued that an employer who has locked
out his employees in aid of a bargaining position does not
at the same time retain a significant or legitimate interest
in remaining in operation through the employment of
replacements for employees thus deprived of work or in
the diversion of their work to other facilities . In shutting
down in aid of his bargaining position the employer exer-
cises his option to accelerate an anticipated work stop-
page to a time more favorable to himself and less favor-
able to the employees , and the employees may not com-
plain that "the work stoppage which would have been the
object of the strike has in fact occurred." (380 U.S. at
310) However , the exercise of the option to shut down
production , or cease services , in good-faith anticipation
of offensive action by the employees or their representa-
tive, would seem hardly compatible with the concurrent
exercise of an alleged good -faith option not to close at all,
but to continue in operation under another guise . The two
actions are antithetical.
This may be pointed up by a comparison with the situa-
tion which obtains when an employer uses replacements,
or other legitimate means , to continue in operation after
a strike by his employees . In such case the employer's ef-
forts to remain in operation are not , as such , necessarily
destructive of the employees ' rights to free collective bar-
gaining or the benefits of collective action , or to the
union ' s capacity to responsibly and meaningfully
represent the employees . In a strike against an employer,
the employees , usually through their representative, con-
stitute the protagonist in the dispute , and to the extent
their rights may be destroyed , this is but a foreseeable
consequence of their own actions . Because the em-
ployer 's action is thus defensive , in response to the em-
ployees ' own concerted activity , it cannot be said, in the
usual case , to be designed necessarily to destroy the exer-
cise of the employees ' rights or the capacity of the union
to represent them.10
On the other hand , were the employer to lock out his
employees with the purpose of forcing them to accede to
his terms and at the same time be able to demonstrate, by
continued operation through other employees or by diver-
sion of work , that resistance to the employer 's terms, no
matter what they might be, was hopeless , and reemploy-
ment could be obtained only by capitulation , the neces-
sary , if not the almost inevitable tendency of the employ-
er's affirmative conduct would be capitulation on the part
of the employees and their representative . Thus , if the em-
ployer not only may decide if and when his employees
shall be thrown out of work , but at the same time continue
in operation , making capitulation rather than bargaining
the option presented , such action might well be said to
have the tendency , which the Court found lacking in
American Ship, to "necessarily destroy the unions'
capacity for effective and responsible representation"
(380 U .S. at 309), and be "demonstrably so destructive
of collective bargaining " (380 U . S. at 309), as to carry its
own indicia of illegal motivation in violation of the Act. In
the case of the use of such tactics against employees who
have never before been represented by a union , this con-
clusion , perhaps , may be unavoidable.
However, to conclude that General Counsel's sug-
gestions , as to the theory which should govern here, were
on the right track , is not to hold that he has here presented
facts which conform to the theory espoused . Indeed, it is
found that he did not. It is a far cry from the stipulation of
facts relied upon , that Respondent "found it necessary
and did serve many customers from the Mobile and
Savannah plants who would normally be served from the
Tampa plant," to a finding that Respondent took affirma-
tive action to substitute Mobile and Savannah for Tampa
during the lockout . The stipulation , indeed , is perfectly
consistent with the supplying of Tampa area customers
out of the normal inventory of those other plants, or out
of their normal production, without hiring additional em-
ployees , working additional hours, or in any way altering
the normal operation of those plants in order to use those
plants as a weapon to beat down the employees ' demands
to those sought by the Respondent . In such case , it can-
not be said that the Respondent employed replacements
for the locked out employees or diverted their work to
others. The maintenance of normal operations at other
plants was certainly within the Respondent 's rights and
this would include , I believe , the right to serve any
customer anywhere from such normal operations. Since
the facts adduced by the General Counsel are perfectly
compatible with such a legitimate business purpose, and
0 Indeed it has been suggested by thoughtful writers on the problem that
in American Ship and Insurance Agents', the Supreme Court adopted a
long held academic view that the Board should not attempt to determine
what economic tactics should be used by the negotiators as long as the
parties are engaged in a good -faith effort to reach an agreement . See, e.g.,
Schatzki , The Employer 's Unilateral Act, supra , 485; Oberer , Lockouts
and the Law, supra , 193; note , The Supreme Court, 1964 Term , 79 Har-
vard L . R. 56, 195 . Compare , however , N.L.R.B . v. Benne Katz, dlb/a
Williamsburg Steel Products Co., 369 U .S. 736 , and Erie Resistor, supra,
both distinguishing Insurance Agents, in which the Board 's decisions in
protection of employee rights under the Act were affirmed, even in the
absence of evidence of subjective bad faith or animus on the part of the
employer.
10 For an instance in which the Board and the Supreme Court held that
operation of the employer 's business , or at least an integral part of its
operation , during a strike was designed to destroy the exercise of em-
ployees' rights , and thus violated the Act , see Erie Resistor, supra.
994 DECISIONS OF NATIONAL
since no other affirmative act of Respondent tending to
affect the employees' rights under the Act is shown, no
violation of the Act appears from the stipulated facts
referred to. i i
There still remains unresolved, however, the question
of whether the fact that the employees here were em-
barked upon their "maiden voyage" in the stormy seas of
collective bargaining should control the conclusion
reached in this matter.12 In American Ship, the Court
found it significant that "The unions here involved have
vigorously represented the employees since 1952, and
there is nothing to show that their ability to do so has
been impaired by the lockout." (380 U.S. at 309) Even
though an employer did no more than lock out a newly
certified union whose bargaining demands displeased the
employer, a substantial argument can be made that such
action is inherently destructive of the employees' rights.
In such case the employees will normally not only have
no resources of experience and resolve based on previous
trial under fire, but probably will even be uncertain of the
abilities and capacities of the newly certified union, which
normally requires a reasonable period, free of exigent
pressures, to demonstrate whether it has the capacity to
fulfill the mandate imposed upon it. The union on its part,
not having control of the timing of the work stoppage,
may well be unprepared to support the employees with
financial or other resources sufficient to meet the task.
The resolution of this issue, I believe, as suggested by
Professor Oberer in his article (see fn. 12) must be deter-
mined on the facts of each case. Here it would be mislead-
ing to label the Union as engaged on a "maiden voyage,"
without experience or resources. True the employees
11 Obviously the additional fact that Respondent did not notify the
Union before supplying its customers from Mobile and Savannah, in the
circumstances of this case , would not affect the conclusion reached above
LABOR RELATIONS BOARD
may have been inexperienced in matters of union
representation , and without the strength to strike alone,
as Northrip claimed, but certainly they were not unaware
of the successful history of bargaining between the Gyp-
sum Workers and Respondent at Mobile and Savannah,
or of the significant support which they might receive
from the employees in those plants as well as from the
Gypsum Workers in their bargaining efforts. In the par-
ticular circumstances of this case it is found that Respond-
ent's action in locking out its employees was not in-
validated by the circumstances that the Union was newly
certified and the bargaining involved efforts of the Union
to secure a first contract.
Upon the entire record, therefore, and in light of the
Supreme Court's decision in American Ship, it is con-
cluded that Respondent did not violate the Act by locking
out its employees after an impasse in aid of its legitimate
bargaining position and it is so found.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. Respondent has engaged in no unfair labor prac-
tices.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.
12 For a discussion of some of the problems raised by "The Bargaining
Lockout in First -Contract Negotiations ," see Oberer , Lockouts and the
Law, supra.